Competition Commission of India
Belaire Owners' Association vs Dlf Limited, Huda & Ors. Supplementary ... on 3 January, 2013
BEFORE THE COMPETITION COMMISSION OF INDIA CASE NO.19/2010 Dated : 3rd January, 2013 IN THE MATTER OF :
BELAIRE OWNERS'ASSOCIATION ..... INFORMANT VS.
DLF LTD. .... OPPOSITE PARTY-1
HARYANA URBAN DEVELOPMENT .... OPPOSITE PARTY-2
AUTHORITY
DEPARTMENT OF TOWN & COUNTRY .... OPPOSITE PARTY-3
PLANNING, STATE OF HARYANA
Through:- Shri Vaibhav Gaggar, advocate for informant and Shri Ravinder Narain, advocate for opposite party no.1 Supplementary Order u/s 27 of the Competition Act, 2002 The Commission vide its order dated 12th August, 2011(the order) in above case had held DLF Ltd. as a dominant enterprise in the geographic area of Gurgaon in the relevant market. The Commission found that DLF Ltd. had abused its dominant position and violated the provisions of Section 4 of the Competition Act, 2002(the Act) as DLF had made the flat owners i.e. members of the Informant association to sign a highly abusive apartment buyers agreement. In para 12.90 of its order, the Commission had noted a number of clauses of the agreement as examples of abusive nature. The Commission observed in para 12.91 that DLF Ltd. had made it clear to the allottees that no alterations/modifications were to be made in the said agreement by the allottees. The Commission in para 12.95 had observed regarding commencement of project without sanction/approval, increase in number 1 of floors midway, increase of Floor Area Ratio(FAR) and density per acre(DPA), inordinate delay in completion and possession, forfeiture of amounts, etc. etc. The Commission found that the clauses of the agreement were biased in favour of DLF Ltd. In para 12.101, the Commission observed that certain clauses in the agreement gave DLF a sole discretion in respect of making changes in zoning plans, usage pattern, super area, carpet area and for alteration of structure and even a case of change of location of apartment and if a refund became due, no interest was payable by the builder. No rights had been given to buyers for raising objections. Even if the buyers had paid full amount, the builder could create mortgage on the property of the buyers for raising finance for its own purpose. DLF Ltd. inserted such clauses which made exit next to impossible for buyers. In case of delay by the builder, DLF Ltd. was to pay compensation of Rs. 5 per sq. feet per month equivalent to about 1% per annum interest, while in case of delay in payment by the buyer, the interest charged was 15% per annum for the first 90 days and 18% thereafter. The Commission came to conclusion that the conduct of DLF Ltd. was unfair in terms of section 4 and was being carried out by it because of its being a dominant enterprise and amounted to abuse of dominance
2. Having arrived at this conclusion, the Commission had considered as to what should be the appropriate order in this case. The Commission considered the provisions of section 27 of the Act which empowered the Commission to pass an appropriate order as mentioned in section 27 (a) to 27 (g). The Commission considered that since the findings of the DG and the Commission showed a violation of section 4 of the Act by DLF, thus those provisions of section 27 could be applied which pertained to abuse of dominance. As such, the Commission concluded that it could pass orders under all or any of the provisions contained in section 27(a), 27
(b), 27 (e) and 27(g). The Commission was of the opinion that section 27(a), 27 (e) and 27(g) related to contravention of both sections 3 & 4 while section 27(d) related to contravention of section 3. Having regard to this aspect, the Commission considered it appropriate to pass an order imposing penalty on DLF and give directions under section 27(a) to DLF. The Commission therefore gave following directions:-
(i) to cease and desist from formulating and imposing such unfair conditions in its agreement with buyers in Gurgaon.2
(ii) to suitably modify unfair conditions imposed on its buyers with regard to above within three months of the date of receipt of the order.
The Commission left it to DLF to suitably modify unfair conditions imposed on its buyers expecting that the modified agreement shall be finalized by DLF in consultation with buyers keeping in view of the findings and observations of the Commission. The exact terms and conditions of the agreement were not formulated as it involved specific contract with each buyer in respect of service/goods to be provided by the DLF and freedom was given by Commission to the parties to enter into mutually agreed contract. It was expected that in each such agreement DLF shall properly define the product/service as it was having exact spaces/carpet areas/common areas/dimensions etc. applicable in respect of that buyer and it shall clearly state all requisite clearances which it had obtained at the time of entering agreement. It was also expected that it shall state the cost of the product/service to the buyers with no hidden and indirect charges and it shall also clearly lay down the delivery schedule stage wise. It was also expected that one sided clauses shall be suitably modified so as to remove the abuse of dominance.
3. Against 12.8.2011 decision of the Commission, DLF preferred an appeal before Competition Appellate Tribunal (COMPAT). COMPAT vide its order dated 29/03/2012 remitted the matter, along with the draft modified terms & conditions submitted by the parties, to the Commission directing the Commission to pass an order under section 27(d) specifying the extent and manner in which the terms and conditions of the Agreement need to be modified. Further, COMPAT in its order dated 21.05.2012 observed that in order to carry out suitable modifications in terms and conditions of the Agreement, it would be imperative to first determine the manner and extent of such modifications in terms of the order dated 12.08.2011 and only then such modifications could actually be carried out. It was further observed that the direction to 'suitably' modify the unfair terms and conditions was interminably linked to the question whether the terms and conditions were indeed unfair and, therefore, need to be 'suitably' modified. The question of correctness of the findings of the Commission will, therefore, depend on the whole gamut of the conclusions arrived at by the Commission; the foundation and the basis on which the same have been arrived at, as well as the manner and extent of the modifications which they have so directed which need to be carried out.
34. The Counsel for informant argued that the Commission should consider the whole Agreement for modification in view of its findings in the final order dated 12/08/2011. He contended that from the observations of the Commission it was clear that abusive conditions of the Agreement mentioned in the final order dated 12/08/2011 were some of the examples only. Thus, the entire agreement was required to be examined and appropriate amendments/modifications were required to be suggested by the Commission in terms of directions of COMPAT. On the other hand, the Counsel for OP-1 argued that conclusions arrived at by the Commission in the final order dated 12/08/2011 were enumerated in paragraph 12.90 under sub- paragraphs (i) to (xvi) (in the case of Belaire project). The so-called abusive clauses were thus limited and the Commission was expected to suggest modifications to only those terms & conditions of the Agreement which were specifically declared to be abusive and in contravention of the provisions of section 4(2) (a) (i) of the Act. Demand of informant for suggesting modifications to other terms and conditions by the Commission was not valid as there were no specific findings qua other clauses of agreement in the final order dated 12.08.2011 of the Commission. He even argued that since the project stands completed and possession given, no modification in the agreement was at all necessary.
5. Before considering the modifications to be made in the clauses of the agreement, it is necessary to know relevant provisions of applicable laws for the development of a housing project in Gurgaon, Haryana and the place and role of a builder and buyer under the law. It is quite necessary to have a clear view of the laws applicable to both the parties and their respective rights in order to give directions in respect of preventing/stopping abuse of dominance and to indicate the extent and manner of modification of an agreement governing their inter se rights and obligations.
6. The main Act which governs development of group housing colonies by a coloniser in Haryana is the Haryana Development and Regulation of Urban Areas Act, 1975 (Act of 1975) coupled with the Haryana Development and Regulation of Urban Area Rules, 1976( Rules of 1976). Under section 3 of the Act of 1975, an owner of land desirous of converting it into a colony /group housing, can make an application to the Director, Town & Country Planning, Haryana(the Director) for grant of a licence to develop it as such. All the provisions of the Act of 1975 and the 4 Rules of 1976 are, therefore, applicable, whenever a group housing colony like the one which is subject matter of this case is sought to be developed in the State of Haryana. Apart from this, after the development of group housing, all the residential units are to be transferred to the allottees under the Haryana Apartment Ownership Act, 1983 (Act of 1983) and thus this Act and Rules thereunder are also equally applicable to the builders as well as to the apartment owners. Since the Group Housing Colony has to be a residential colony within an urban area, the Haryana Urban Development Authority (Erection of Buildings) Regulations, 1979 (Regulations of 1979) regarding FAR and other provisions like providing car parking space etc. are also mandatory.
7. A perusal of the applicable laws on development of group housing colonies in the State of Haryana would show that following are mandatory requirements:-
(i) Maximum permissible coverage is 33.33% of the total site on ground and subsequent floors or 35% of the site on ground floor and 30% on subsequent floors (Compendium of Haryana Building Bylaws & Urban Development Regulations by V.K. Puri P.1.81 to 1.87).
(ii) Maximum permissible FAR (as applicable in 2009) was 175% of the site area on which Group Housing Complex is developed (Compendium of Haryana Building Bylaws & Urban Development Regulations by V.K. Puri P.1.81 to 1.87).
(iii) 1.5 equivalent car space (ECS) for each dwelling unit had to be provided by the builders and a minimum of 75% of this should be in the form of covered parking (Compendium of Haryana Building Bylaws & Urban Development Regulations by V.K. Puri P.1.81 to 1.87)..
(iv) Section 3 (5) of the Act of 1975 provides that a colony may comprise of one or more licences with contiguous land pockets. Therefore, each licence has to be in accordance with the bye-laws and rules regarding FAR and parking as well as open areas, external development and internal development.
(v) Under Rule 4 of Rules of 1976, in the lay out plan of a residential colony of plots, the land reserved for roads, open spaces, schools/public and community buildings and other common use area cannot be less than 45% of 5 the gross area of the land under the colony. Director, Town and Country Planning, Haryana Government has discretion to reduce this percentage to 35% if in his opinion the planning requirement and size of the colony justify the same. However, he has to record reasons for reducing this percentage.
(vi) The coloniser/ builder only acts as a developer. Once he has developed a Group Housing Complex and the apartment owners have paid the cost of External Development Charges (EDC), price of apartment and other charges, the builder is not supposed to have any right or concern left in the property. This is clear from the fact that under Rule 11 of the Rules of 1976, the builder after development of roads, drainage, sewage, water supply and electricity inside the colony has to maintain it only for a period of five years or till the association of plot owners takes the responsibility and release the builder of the maintenance responsibility. Similarly, the builder is supposed to pay EDC proportionate to the area of the colony/dwelling group housing unit to the Govt. for development of main lines of road, drainage, sewage, water and electricity. A builder is to give undertaking to construct, at his own cost or get constructed by any institution or individual, schools, hospitals, community centres and community buildings on the land set apart for this purpose or undertake to transfer to the Govt. or the local authority, free of cost, at any time, such land earmarked for constructing community buildings.(in case they are not constructed) and the Govt. would be at liberty to transfer such land to any persons or institution.
(vii) It is specifically provided under the Act and the Rules that the internal development of the colony shall include markets, road and paved foot paths and properly turfed open spaces with plantation of trees, street light, water supply, sewers and drains, both for storm and sullagewater with provision for their treatment and disposal (Rule 5 of Rules of 1976).
(viii) Under Section 7 of the Act of 1975, there is a prohibition on the coloniser/builder as well as on property dealer from issuing any advertisement in respect of the colony regarding transfer of plots or apartments without obtaining licence under section 3. There is also prohibition on receiving any amount in respect thereafter or to erect any building or re-erect building in 6 respect of which a licence under section 3 has not been granted. It is further provided in section 5 that 30% of the amount realised from the plot owners from time to time shall be deposited by the builder in a separate account to be maintained in a scheduled bank and this amount shall be utilised only for meeting the cost of internal development of the colony. The remaining 70% of the amount is to be retained by the coloniser to meet the cost of land and development works. This provision requires the coloniser to maintain account of the amount kept in the scheduled bank. It is only after the internal development works have been completed to the satisfaction of Director, the rest/balance amount can be withdrawn by the coloniser.
A coloniser intending to set up group housing colony has to enter into an agreement with the Director, Town and Country Planning, Haryana in Form LC IV(a) which mandates that adequate health, recreational and cultural amenities in accordance with norms and standards provided in respective development plan of the area are to be provided by the coloniser. The coloniser has to ensure that dwelling unit is sold or leased by him in accordance with the provisions of Haryana Apartment Ownership Act, 1983 with common areas and facilities. Common areas of the plot of land on which Group Housing Colony is developed, in fact, belong to and are meant for the common use of apartment owners and once the apartments are sold, all the common areas and facilities vest jointly in apartment owners and are to be maintained by apartment owners by forming an association in terms of the laws laid down by Haryana Govt.
(ix) The coloniser has to sign an agreement with the Haryana Govt. that he shall derive maximum net profit only of 15% of the total project cost of the development of colony after making provisions of statutory taxes. In case the net profit exceeds 15% after completion of the project, the surplus amount either has to be deposited with the State Govt. treasury within two months of the completion or he has to spend this money on further amenities /facilities in the colony for the benefit of residents.
Further, the Act of 1983 was enacted to provide for ownership of individual apartments and make ownership rights as transferable for the promotion of group 7 housing in the State of Haryana. As per Section 5 of the Act, owner of every apartment, as defined in the Act, is required to execute and get registered a conveyance deed. 'Apartment' in the Act of 1983 has been defined in section 2(a) as a part of a property intended for any type of independent use, as may be prescribed, with a direct exit to a public street, road or highway or to a common area leading to such street, road or highway. 'Apartment owner' has been defined as the person or persons owning an apartment and having undivided interest in the common areas and facilities in the percentage specified and established in the declaration.
7.1 Under the Act of 1983, 'common areas and facilities', unless otherwise provided in the declaration or lawful amendments thereto, means:-
i) the land on which the building is located;
ii) the foundations, columns, girders, beams, supports, main walls, roofs,
halls, corridors lobbies, stairs, stair ways, fire escapes and entrances and exits of the building;
iii) the basements, cellars, yards, gardens, parking area and storage spaces;
iv) the premises for the lodging of janitors or persons employed for management of the property;
v) installation of central services such as power, light, gas, hot and cold water, heating, refrigeration, air conditioning and incinerating;
vi) the elevators, tanks, pumps, motors, fans, compressors, ducts and in general all apparatus and installations existing for common use;
vii) such community and commercial facilities as may be provided for in the declaration; and
viii) all other parts of the property necessary or convenient to its existing maintenance and safety or normally in common use.
7.2 Section 18 of Act of 1983 regarding 'separate assessment' mentions that notwithstanding anything to the contrary contained in any law relating to local authorities, each apartment and its percentage of undivided interest in the common area and facilities appurtenant to such apartment(being an apartment subject to the provisions of the Act) shall be deemed to be separate for the purposes of 8 assessment to tax on lands and buildings liable under such law and shall be assessed and taxed accordingly. The building, the property or any of the common areas and facilities shall not be deemed to be separate property for the purpose of the levy of such tax.
8. Thus the development model of the colonies /group housing societies can be discerned from above-mentioned Acts, Rules, Regulations and Norms and annexures to the Rules in the form of bilateral agreement to be executed between colonizer and Govt., and the control to be exercised under the Act by the Director.
9. Judgment of Supreme Court in 'Nihal Chand Lallu Chand Pvt. Ltd. vs. Pancholi Cooperative Housing (AIR 2010 SC 3607)' also has bearing. In the judgment, it was held that garage is not an independent unit by itself, but is an appurtenant or attachment to flat within the meaning of Section 2(a-1) of Maharashtra Ownership Flats(Regulations of Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA). Open to sky-parking area or stilted portion usable as parking space was not garage within the meaning of Section 2(a-1) of the Act and not sellable independently as flat or along with flat. However, promoter was entitled to charge price for common areas and facilities from each flat purchaser in proportion to carpet area of flat. Further, the Act mandated the promoter to describe common areas and facilities in advertisement as well as agreement with flat purchaser and indicate price of flat including proportionate price of common areas and facilities. Stilt parking space could not cease to be a part of common areas and facilities merely because promoter had not described the same as such in advertisement and agreement with flat purchaser. Promoter had no right to sell any portion of such building which was not 'flat' within the meaning of section 2(a-1) of the Act. He had no right to sell stilt parking spaces as these were neither flat nor apartments or attachment to flat. Hon'ble Supreme Court also observed in this Judgment that the rights arising from the Agreement signed under the MOFA between the promoter and the flat purchasers cannot be diluted by any contract or undertaking to the contrary. The undertaking contrary to Development Controlled Regulations for Greater Bombay 1991(DCR) will not be binding either on the flat purchasers or the Society. It is to be noted that provisions of MOFA 1963 are similar to Haryana Act of 1983.
910. In the light of the above judgment of the Supreme Court, applicable Acts and Rules and development model of the Group Housing societies envisaged under law, the agreement executed between DLF Ltd. and members of the informant Belaire Owners' Association is to be considered and looked upon by the Commission for the purpose of suggesting modifications so that there are no abusive clauses. Several clauses of the agreement are interwoven and have impact on other clauses. Modification of one would necessitate modification of other. The Commission therefore had to consider modifications wherever it found clause of the agreement was abusive.
11. The Commission thus considered all the clauses of the Buyer's Agreement. The reasons for proposed modification are given hereunder. The modifications suggested have been given in tabular form at the end opposite the existing clause.
12. The recitals in the agreement form two parts (i) Companies' representations as (A) to (G) and (ii) Allottees' representations as (I) to (M). In recitals, the company had stated that it was having an approved lay out plan of Phase V in DLF City and was presently having an area of 527.9435 acres under its control and it was likely to have more areas concerning this Phase V and the lay out plan of Phase V shall accordingly get changed as and when the new areas acquired by it and approved by Director, Town and Country Planning, Haryana. The allottees shall have no objection and give their consent to the company for the purpose of making necessary changes in the lay out plan of Phase V as and when new areas are included in the lay out plan as annexed to the agreement and the same shall stand automatically changed and the new lay out plan as drawn by the company and approved by the Haryana Govt. shall form part of the agreement. Admittedly, the rights of the allottees have been restricted to Belaire Group Housing Complex only. The reference to phase V Belaire agreement in unnecessary and may have potential of being abused. Recital 'D' made it clear that the agreement was confined and limited in its scope only to this Group Housing Complex (Belaire) to be constructed by the company on the portion of land delineated in Annexure I and IA of the agreement. However, neither Annexure I nor I A gives the area of land of Belaire Complex, nor the area of 6.67 acres given in agreement is in conformity of FAR norms.
10Every Group Housing Scheme/Complex has to comply with all Rules and Regulations in respect of Group Housing Complex. These Rules and Regulations are mandatorily required to be followed by the coloniser/ builder. The recitals have been framed in such a manner as if the company was not bound by the Rules and Regulations concerning Belaire Group Housing Complex and only allottee was bound by the Acts, Rules and Regulations. The rights vested in the allottees cannot be taken away by DLF unilaterally as mentioned in the recitals of the agreement. The Commission consider that the recitals be modified as given in the annexed modification. The reference to phase V be limited only for information purpose. The layout plans etc. should refer to Belaire Project. The recitals should specify title of company over project level and obtaining necessary licences from competent authorities and representations of parties to abide by relevant laws.
13. The counsel for the company had vehemently argued that the rights of the allottee are limited to only flat/apartment and the proportionate right in the land at the footprint of the tower in which the apartment is situated. The allottee had no right of ownership over the land and every inch of the place outside the apartment belonged to the company and the right of the allottee was limited only to use of open areas as may be permitted by the company on payment of maintenance charges. This stand of the company is contrary to law and highly abusive. The apartment owners of a complex jointly become owner of the entire land of which FAR is utilised for construction of the complex. The land area and common facilities belong exclusively to the apartment owners as per the Law and Rules discussed above and no right of the company is left in the land area. It is also clear from explanation given to clause 1.1 and Clause 2 of the existing agreement wherein the company has made it categorically clear to the apartment owners that apart from the cost which the company was charging on per sq. feet of super area, the allottee was liable to pay additional price proportionate to the share in the taxes which are payable by the company or its contractor by way of value added tax, sales taxes (Central and State), works contract, service tax, education cess or any other taxes by whatever name called in connection with construction of the complex and the property of the complex. It is clear from this that all taxes including the tax in respect of the land area of which FAR is used and apartments are constructed are to be borne by the allottees jointly in proportion to the super area purchased by them. The company is 11 not to bear burden of any State Tax or Central Tax in respect of the GH complex. The company cannot claim ownership of even an inch of the open area of the land of the complex. The entire land area of the complex falls under joint ownership of the allottees. The ownership is indivisible and the allottees have a right to manage the same by forming an association and can tell the company to move out of the area with lock stock and barrel. Thus, the company's argument that it retains ownership rights over the open area even after sale of apartments is not tenable and all such clauses in the agreement put by the company giving it a claim/ right over the open areas/ common areas, etc. amounted to abuse of dominance and this abuse can be removed by modifying the abusive clause and providing in the agreement about the obligation of the company to abide by the Laws, Rules and Regulations as applicable to a Group Housing Complex. It would be worthwhile to mention that for making a Group Housing Complex, the maximum FAR applicable in 2009 was 175%. The restriction on number of storeys /floors was, however, removed. The company on removal of this restriction raised the height of the building from 19 floors to 29 floors using the same footprint and same Belaire area. However, since the FAR was only 175%, the land area/open area for the Complex would have to be commensurate with total super area of all the apartments in all 29 floors. As per the calculations made by the informant, which have not been disputed by the company (and the company has not come up with its own calculations) the total land area on which the Bellaire Complex of 29 floors could be constructed as per FAR was 20.885 acres.
14. The allottees of Belaire Complex jointly would have, therefore, undivided ownership rights over land area in ratio of FAR inclusive of the footprint of the building and not alone on the footprint of the building as is asserted by the company in the agreement. The abuse in different clauses of the agreement could only be removed by specifying the land area of GH complex Belaire as per FAR ratio. However, if the company has already deprived the allottees of land area, by abusing its dominance and curtailed the land area, the allottees' right to claim compensation as per law shall be there.
Similarly open parking and parking under stilt are part of common areas and are not sellable separately independently or along with flat. Open parking do not cease to be a part of common areas and facilities merely because DLF had not described the same as such in advertisement and agreement with flat purchaser.
12Promoter had no right to sell any portion of Belaire GH Complex which was not a flat or apartment. Hon'ble Supreme Court observed that rights arising from relevant laws cannot be diluted by any contract or undertaking to the contrary. Accordingly, the relevant clauses of the agreement need modification and suggested modifications are given in clause 1.1 of the table given below.
15. In the order, the Commission had observed that when an allottee does not get preferential location, he only gets the refund/adjustment of amount at the time of last instalment without any interest. The preferential location charges were imposed and charged by the company @ of Rs.300 per sq. feet of the super area. The Commission considers that in case the allottee does not get apartment with preferential location, the amount taken by the company for preferential location should be returned to the allottee with a reasonable rate of interest from the date of the payment of the amount till the date amount is returned to the allottee. The rate of interest should be commensurate with rate of interest being charged by the company from allottee on delayed payments. If the amount is adjusted against the balance payment payable by the allottee, it should be adjusted alongwith interest. The suggested modification is given in clause 1.5.
16. In the order, the Commission observed that DLF enjoyed unilateral right to increase or decrease super area at sole discretion without consulting allottees who, nevertheless, were bound to pay additional amount or accept the reduction in area. When the construction of a multi storey building is envisaged, the plans are drawn on drawing board. Most of the group Housing Complexes are sold on the basis of the plans drawn on drawing board. Super area and the actual apartment area are two different concepts. The apartment area is the area which is exclusively enjoyed by the apartment owner. It includes carpet area plus area under the walls of the apartment, while super area is the sum of apartment area and common areas which the allottee enjoys along with other apartment owners. This area is inclusive of lift area, staircase area and other entrance areas, etc. Most of the times, the actual building and the drawing board plans match with each other and the building is constructed in accordance with the construction plan as approved by authorities in advance. However, there may be instances where at the time of actual construction, certain minor changes are required to be made in some of the drawing board plans and the building is constructed slightly different from the drawing board plan but it, 13 more or less, conforms to the drawing board plan. In such a case, there may be either minor (say + 2%) increase or decrease in the super area as well as the carpet area of each apartment. However, the company if substantially changes the lay-out plan resulting, in more than 2% increase or decrease in super area, the allottees' consent should be obtained for such changes in the lay-out plans. Since the price paid by the allottee is per sq. ft. of super area, the price of the apartment would increase or decrease after the actual building is constructed. In order to lay a claim on the basis of increase in super area, the company is supposed to give information to the allottee about the difference in the initial building plan and the actually- constructed building plan on the basis of which the new super area is calculated. The actual plan should be the one submitted to the authorities for completion certificate and on the basis of which occupancy certificate is granted. The calculations of increased area should be sent to the allottee, so that the allottee knows and can verify on ground as to how his super area has increased. A mere letter from the company that the super area has increased is not sufficient to claim any amount from the allottee. Thus, whenever a claim on the basis of increase in super area is made, the company is bound to give the relevant information as to how the super area stands increased. The clauses in this respect therefore need to be modified. Accordingly modified clause 1.6 is given in the table. Clause 9.2 also gets covered by modified clause 1.6.
17. In the order, the Commission had found that the proportion of land on which apartment is situated and over which the allottee would have ownership right was to be decided unilaterally at the discretion of the company(DLF Ltd.). In clause 1.7 of the existing agreement, company has stated that it may, at its own discretion for the purpose of complying with the Haryana Apartments Ownership Act, 1983 or other applicable Laws, substitute the method of calculating the proportionate share in the ownership of the land beneath the building/common areas or facilities. The company in so many words stated that the allottee will only have proportionate ownership rights in the land underneath the building i.e. the land which is the footprint of the building in which the said apartment is situated. Similarly, company has unlawfully provided for itself right to further go up in air by increasing the number of floors and reserving to itself terrace rights. This is totally contrary to the law and imposition of this condition on the allottee by DLF is because of its dominance and amounts to 14 gross abuse. All relevant clauses depriving allottee of his lawful rights need to be modified to bring them in conformity with Law, Rules and Regulations so as to remove the abuse vis-a-vis the allottee. Modified clauses are given in the table below.
18. In the order, the Commission observed that the covenant in clause 1.7(viii) of the agreement, giving right to DLF of having full and absolute rights in the community buildings/sites/recreational and sporting activities sites including maintenance of those, was abusive.
As per applicable Laws, Rules and Regulations discussed above, site for community buildings are compulsorily required to be set apart by the coloniser and these sites, if not constructed either at the cost of coloniser or if not handed over and constructed by others, were to be given to the Govt. of Haryana, free of cost. This simply shows that the cost of these sites is recovered from the Allottees and clause 1.7(viii) makes a false representation that no costs were recovered from allottees. Moreover, in order to claim ownership rights over any part of the land in Belaire Complex, the company has to show that it was owning a part of the constructed super area which was not allotted to the allottees /apartment owners and not charged from allottees. In such a case, the company would be the owner of that facility and the common area proportionate to its super area jointly with other apartment owners. As per law & relevant rules, the company is bound to provide for club, schools, shopping complex, children park and open green areas. As per the building bye-laws and the Acts of 1975 and 1983, the open areas and common facilities are to be maintained by the Apartment Owners Association. The company's rights in club, etc. can be there only if the company has filed accounts with the administrator showing that it had not recovered the cost of club etc. by charging the cost of common facilities from the allottees and common facilities were owned by it.
Para one of annexure II to the agreement reads as under:-
"Super area for the purpose of calculating the sale price in respect of the said Apartment shall be the sum of apartment area of the said apartment, its pro rata share of common areas in the entire said building and pro rata share of other common areas outside apartment buildings earmarked for use of all 15 apartment allottees in the Belaire which include the club with swimming pool, toilets/change room, multipurpose hall, gymnasium and restaurant, etc."
Part B of annexure IV reads as under:-
List of general common areas and facilities located in the basement for all apartment allottees in the Belaire included in computation of super area of the said apartment:-
Sl.no. Particulars Remarks
1. DG Room/DG sets
2. Underground domestic and fire water
May be located under any
tanks and pump room and pumps with
building or any other
accessories
suitable location in the
3. Electric sub- Belaire/zone-8, DLF City,
station/transformers/electrical panels Phase V
4. Fan rooms
5. Laundromat
6. Maintenance stores and circulation
areas
7. Sewerage treatment plant
8. Air-conditioning plant room and
equipments
In view of above discussion, clause 1.7 & 1.8 clearly abusive and need
modification as given in the table below.
19. In the order, the Commission observed that DLF's sole discretion to link one project to another was abusive in nature. Interlinking of projects for the purpose of mobility of residents and for ingress egress is one thing, but interlinking projects for any other purpose without giving equivalent rights to allottee is altogether different.
When Belaire Complex apartments were agreed to be sold to allottees, the FAR was 175%. If, in future, FAR is increased, only owners of apartments will have collective right to use or not to use increased FAR and the company cannot club the project with its other projects for this purpose. Accordingly, different clauses of the agreement need to be modified and reference to phase V need to be deleted. It should be retained only where rights of allottees are not adversely affected. The modified clauses 1.9 & 1.10 are given in table below.
1620. In the order, the Commission observed that clause 1.11 of the agreement was abusive. EDC is charged by Government for development of main lines of roads, drainage, sewage, water and electricity. EDC is proportional to the land area of the project and may be linked with number of dwelling units. EDC is invariably passed over by the builder to the allottees. Entire EDC charges for a complex are burdened on allottees in proportion to super area. There may be a case of State increasing EDC charges. Builder can pass on increased EDC charges to allottees only after informing the allottee about the order of the State Government enhancing EDC (with a copy of letter) and how his share of EDC has been calculated. Non-payment of EDC by an allottee can result only into a recovery action as per law. Neither the allotment can be cancelled, nor possession of his apartment can be taken by force. Provision in this clause relating to resumption of the apartment in case of default in payment of EDC is contrary to the provisions of relevant laws. As per section 19 of the Act of 1983 all sums assessed by the association of apartment owners towards the share of the common expenses chargeable to any apartment and remaining unpaid has to constitute a charge on such apartment prior to all other charges, except charge, if any on the apartment, for payment of local taxes and all sums unpaid on a first mortgage of the apartment. Further, in case the allottee fails to pay these charges, the Director, Country Planning may recover these charges as arrears of land revenue as per the regulation 19 of Regulations of 1976. The relevant clause 1.11, therefore, should be modified as given in the table below.
21. In the order, the Commission observed that clause 1.14 of the agreement was abusive since it gave sole discretion to DLF regarding arrangement for power supply and rates levied for the sale of power to the allottees. By this clause, the company takes away the right of Allottees' Association to get competitive offers from other players. DLF has arbitrarily foisted compulsory payments for another service- provider on the allottee. Clause 1.13 and 1.14 of the agreement are interconnected. Clause 1.13 is about power backup whenever the supply of DHBVN (State Electricity Board) is not there. Clause 1.14 envisages a situation when DHBVN fails to supply electricity to the complex. So long as Resident Welfare Association of the Complex does not take charge of services of the complex, the company is bound to provide essential services to the complex in terms of maintenance agreement, but once RWA takes over the responsibilities of the complex, it will have freedom to continue 17 with the service providers engaged by the company or to enter into fresh contracts with some service provider or engage new service provider. Also since the Company marketed and sold Belaire Complex as govt. approved residential project and govt. charging heavy amount as EDC, providing of DHBVN connection by the state is mandatory and the company has to ensure DHBVN connection for each allottee. The relevant clauses 1.13 and 1.14 be modified as suggested in the table.
22. In the order, the Commission found clause 4 of the agreement abusive as it provided arbitrary forfeiture of earnest money by the company without even a notice to the allottee. The company provided for forfeiture of amounts of allottee for non- fulfillment of the conditions of agreement by the allottee, but there is no corresponding clause in respect of non-fulfillment of clauses of agreement on the part of company. Clause 5,8,10 and 12 of the agreement are highly one-sided and should be modified. Modified clauses are given in the table below.
23. The delivery of possession of the apartment by the company is governed by clause 10 and clause 11 of the Agreement. However, clauses 11.1, 11.2, 11.3 and clause 39 provide for those circumstances under which the company may not deliver the possession in time or may abandon the project altogether without its fault and the consequences. Clause 11.1 talks of non availability of construction, material, strike of the work force, terrorist act, enemy act, act of God, delay in grant of permissions, completion certificate etc. from the government or the property becoming subject matter of litigation in Courts or before Tribunals. Clause 11.2 provides for eventualities of delay in giving possession of apartments due to Govt. rules, orders, notifications, after the agreement and the companies' decision to challenge the same in Courts /Tribunals. Clause 11.1 provides that the company shall not be bound by the existing period of delivery in case of eventualities as stated therein and shall have the power to extend the period of delivery of possession and may also unilaterally alter the terms of agreement. It also provides that in case of abandonment of project by the company, it would be at liberty to cancel the agreement and to refund to the allottee "amount attributable to the agreement"
without any interest. 'Amount attributable to the agreement' has not been defined clearly and the same is vague, which gives arbitrary powers to the company. In cases of cancellation/abandonment of the project by the company for none of the fault of the allottee, the company was not even liable to return the amount actually 18 paid by the allottee to the company with interest but the company, out of the amount paid by the allottee was to deduct the interest paid by the allottee and the interest due towards allottee on delayed payment as well as to deduct amount of non refundable nature. The company had not specified as to what was the amount of non-refundable nature to be deducted. Similar provision is there in clause 11.2 towards refund of "amount attributable to the agreement" without interest in case of the project getting scrapped altogether. Clause 11.3 provides that if for the reasons other than clause 11.1, 11.2 and clause 39, the company fails to deliver the possession to the allottees within three years from the date of execution of agreement or within the extended period (the company having liberty to extend the period to any extent.) then the allottee shall be entitled to give notice to the company within 90 days from the expiry of the said period of three years or extended period of terminating the agreement. Even in that event the company was not liable to refund the amount deposited by the allottee along with interests to him. In such an eventuality, the company on receipt of notice, was at liberty to sell/dispose of the apartment to any other party and without accounting for the sale proceeds of the apartment to the allottee within 90 days of the realisation of the price was to refund to the apartment allottee his amount without interest, after deduction of brokerage paid by the company to the broker/sale organiser (in case booking was done through broker /sale organiser) the allottee thereafter could make no claim against the company. If the allottee failed to exercise his/her right of termination within the period as provided in this clause by delivering a written notice to the company then he was not to be entitled to terminate the agreement and was to continue to be bound by the terms of the agreement. In similar way, clause 11.4 provided that in case of abandonment of the project/scheme by the company or if the company failed to give possession within three years of the execution of the agreement or within the extended period as extended by the company itself under various clauses of the agreement, the company shall be entitled to terminate the agreement and the company shall, on such termination refund only the amount paid by the apartment allottee with 9% simple interest for such period for which it was lying with the company. The company was not liable to pay any other compensation. Even in such an eventuality, the company, at its sole option and discretion, could decide not to terminate the agreement and to pay to the allottee and not to anyone else (his successor or subsequently transferee) compensation at Rs.5/- per sq. feet of the 19 super area of the said apartment per month for the period of such delay beyond three years or extended period, subject to condition that apartment allottee was not in default under any term of the agreement. This compensation was also to be adjusted only at the time of giving possession the said apartment to the Allottee. Clause 12 described defaults only on the part of the allottee as if company can commit no default.
These provisions also show that there was no exit option with the allottee and the clauses were abusive and heavily loaded in favour of the company. The company had foisted these clauses on the allottee giving no option to the allottee to bargain for the exit, while the company had liberty to extend the period of delivery of possession on self serving grounds like non availability of material, non availability of work force, any govt. notifications, orders or litigations in the Court, which may even have been invited by the company itself, without any penalty on the company for such extended period of delivery. The allottee in case of delay in payment of the instalment had to pay interest to the company @ 15% within 1st 90 days and 18% thereafter. Even where the company failed to deliver the possession within the extended period, a written notice is to be given by the allottee with duly acknowledge receipt of the company whereas the company unilaterally, without any prior notice could terminate the agreement even in case of default in payment of instalment by the allottee. The abuse of dominance is self evident from the provisions of these clauses. The Commission considers that the above clauses should be modified in the manner as given in the table to make this agreement non abusive.
24. Clause 13 is regarding execution of conveyance deed in favour of apartment allottee who has paid full consideration amount to company. The transfer of ownership has to be in accordance with the Act of 1983. However, clause is totally one sided putting no obligation on company to execute the conveyance deed once stamp duty papers are sent to the company after paying entire price as per the agreement. Clause 14 of the original agreement is concerning maintenance and it does not recognise the right of allottees to manage the common services of the complex through RWA, as provided in the Act of 1983. Clause 13 & 14 can be made non abusive by suggested modifications given in table below.
2025. In para 12.90, the Commission observed that under the agreement DLF had sole authority to make addition and alteration in the building with all benefits flowing to DLF and the allottee having no say in this regard. The abusive provisions are contained in clauses 20, 22 and other clausesof the agreement, excerpts of which were re-produced in the main order of 12th August, 2011. Clause 20 gives unfettered right to company to make any addition, alteration, improvements, repair whether structural or non structural, ordinary or extraordinary to unsold units within the building with no right to the allottees of other apartment to raise any objection. The allottee as well as the company both are bound by the building bye laws applicable to apartments. If the company has a right to make structural changes in the apartments belonging to it, the same rights have to be available to the allottee also and these rights are naturally to be exercised in accordance with the laws applicable to a GHS Complex. The relevant clauses should be modified as suggested in the annexure.
26. Clause 20 gives the company the right to make additions, alterations, improvements and other changes in unsold apartments. The rights of the company and the apartment owners in their respective apartments are equal. Company cannot have more rights.
27. Clause 22 gives rights to the company to make additional constructions, to put up additional structure in or upon the building or put additional apartments or structures anywhere in the said complex or in the said portion of land as may be approved by the competent authority and additional apartments/ buildings have to be the sole property of the company which the company would be entitled to dispose of in any way without any interference on the part of the apartment allottee.
The laws applicable to Group Housing Complexes have been briefly narrated above. These laws make it abundantly clear that once the plan for Group Housing Complex is approved by the competent authority as per the applicable FAR and these apartments are sold on the basis of such approved plans, the company is left with no rights either in the sold apartments or in the common areas. Once the apartments of the complex are sold for considerations or agreed to be sold, the company cannot change the plans without approval of the allottees since the allottees are charged not only for the apartment but for all internal and external 21 developments including common areas, open areas, external and internal infrastructure. The allottees while entering into the agreement had before them the complex as promised to be developed by the developer and they put their hard earned money keeping in mind the number of flats to come up, the kind of facilities to be given, population density, the open green areas and other common facilities etc. The joint ownership rights of apartments allottees over common areas and land and the apartment ownership rights of the allottees go together. The company cannot take away these rights from the allottees. Once the company had utilized FAR available at the relevant time in respect of the land over which the complex is to be developed, any subsequent increase in FAR would belong to the allottees and not to the company and it is only the allottees association which will have right to put additional construction with consent of all the allottees. The company shall have no right to have additional construction if subsequently FAR is increased. As such, clause 20 & clause 22 and other such clauses are highly abusive, should be modified as suggested in the table.
28. In para 12.90, the Commission had observed that creation of 3rd party rights by the company without allottees consent was to the determinant of allottees interest and was abusive. A reference was made to clause-23 of the agreement. Clause 23 of the Agreement gives right to the company to raise finance, loan for its own purpose from any financial institution, bank by way of mortgage or creating charge over the building/apartment/portion of building or by any other mode subject to condition that when the conveyance deed is executed, the apartment shall be free from all encumbrances. It is further provided that the company/financial institution /bank shall always have first lien /charge on said apartment for their dues and other sums to be payable by the apartment allottee in respect of any loan granted to the company for purpose of construction of the building/complex. While first part of the clause gives right to the company to raise loan before execution of conveyance deed and provides that at the time of conveyance deed it shall be free from all encumbrances, the second part of the clause provides that the banks or financial institution shall have first lien for recovery of their dues on the apartment of the allottee. The first part is contradictory to the second. Moreover, this clause only talks of the apartment and not of the complex. There is no doubt that during the construction and before delivery of possession of apartment of the complex, the 22 property belongs to the company. However, once the complex is complete and completion certificate is obtained and it is ready for transfer to the allottees, the company has to make entire complex free from all encumbrances, before transferring the apartments and other common areas under joint ownership rights. The apartment alone is not the property of the allottee. The allottee is also joint owner of all the open areas, common facilities etc. within the complex. Therefore, when the complex is ready and conveyance deeds are executed with the allottees, the whole complex has to be free from all encumbrances and of mortgage, charges or any kind of loan from financial institutions or banks over the complex. If the company has any unpaid loan of the banks /financial institution after the apartments are sold, the banks etc. can have lien only over unsold apartments for recovery of dues of the company. Clause 23, 24 & 25 should be modified as given in the table below to remove this abuse.
29. The Commission, in its order, observed that while heavy penalties were imposed in the agreement for default of allottee, there were insignificant penalties on DLF for its own defaults. A reference was made to clause 35 of the agreement, which shows abuse of dominance. The company can refuse to condone delay and can cancel the apartment even if the allottee was prepared to pay interest on delayed payment. While in case of company, the company for itself has reserved so many excuses for non delivery of possession and for scrapping the contract altogether or for delaying the project. It has given itself the powers to extend the period of delivering possession but for the allottee, the sole discretion lies with the company to cancel the flat in case of delayed payment. In case of condoning delay, the Company could be charging interest to the tune of 15% for 1st 90 days and thereafter 18%. However, for the default of the company, the company was liable to pay only 9% interest to the allottee on only such amount which the company deemed refundable to the allottee. That makes the clause abusive, one sided and shows blatant abuse of dominance. In clause 12, the company has given events of defaults and consequences for the allottee. The company has nowhere given in the entire agreement the events of defaults for itself. The Commission considers that the defaults can be on the part of the company as well on the part of the allottees and the agreement should provide for defaults of both the parties and the agreement must be equitable in dealing with both the sides and levy of interest /penalty should 23 of equal level on both sides. The Commission also considers that Force Majeure in clause 39 should be defined as understood in common parlance of law. The consequent modifications are suggested in the clauses 35 & 39.
30. In view of the modified clauses/sub clauses as suggested above in the agreement, certain clauses/sub clauses of the agreement have become superfluous. The Commission has suggested deletion of these clauses. Certain clauses of the agreement, in view of the suggested modified clauses, needed small changes so as to bring them in consonance with the modified clauses. These changes are minor in nature and have been suggested wherever needed. Some clauses are closely interlinked with the abusive clauses and had to be modified so that the abuse was not perpetuated. These interlinked clauses wherever existed have been accordingly modified. The clauses which needed fine tuning with the modified clauses have also been accordingly modified and the suggested clauses have been given in the table below.
31. The terms of the agreement to be entered into with the allottee were never shown to the allottee at the time of booking of the apartment. These terms and conditions of the agreement were prepared and framed by the company unilaterally without consulting the buyer. Once the company had already received considerable amount from the applicants/buyers, this agreement was forced upon the allottees and the allottee had no option but to sign the agreement, as otherwise the agreement provided for heavy penalties and deduction from the money already deposited by the allottees with the company, which itself was an abuse of dominance. The appropriate procedure would have been that a copy of the agreement which DLF proposed to enter with the allottee should have been made available to the applicants at the time of inviting applications. The agreement should be signed within a reasonable time from the date of allotment and all additional amounts should be demanded from the allottee only when the agreement has been signed. Any allottee, who was not agreeable to the terms of agreement, should have liberty to withdraw his application and should be given the entire application amount back.
24TABLE MODIFIED BUYER'S AGREEMENT Claus Original Clause(s) Modified Clause(s) e Reps A. Whereas the Company, its Company's Representation A-M Associate companies, its subsidiary companies presently A. WHEREAS the Company, its own individual respective portions associate/subsidiary companies of land in a site presently presently own various parcels of land admeasuring 527.9435 acres or admeasuring 6.67 acres (hereinafter thereabouts more fully described in referred to as the "Said Land") in Annexure-I (hereinafter referred to Phase V in DLF City (earlier known as "Phase-V") in DLF City (earlier as DLF Qutab Enclave Complex), in known as DLF Qutab Enclave Tehsil & District Gurgaon, Haryana. Complex), in Tehsil & District The copies of the title deeds Gurgaon, Haryana. reflecting the ownership of the Said Land is annexed herewith as B. And whereas the Company has Annexure []. The Said Land is acquired some lands and will be earmarked for the purpose of building acquiring some more lands in the a group housing scheme ("hereinafter neighbourhood of Phase-V and referred to as the "GHS Belaire"), such lands as and when licensed comprising of 5 multistoried and approved by the competent residential apartment buildings of up authority(ies), shall be deemed to to 19 floors. The Company be a part of the approved layout represents that in pursuance of inter plan of Phase V and accordingly se arrangements between the the area of Phase-V (presently Company and its admeasuring 527.9415 acres on associate/subsidiary companies, the thereabouts) shall stand Company is entitled to carry out the enhanced, and in that case development, marketing and sale of Annexure-I of this Agreement shall apartments/units constructed on the automatically stand superseded Said Land and transfer the Said Land and be substituted by such to the Allottee(s).
subsequently approved layout
plan(s) of Phase-V and shall be B. AND WHEREAS the Company is
deemed to form a part of this fully competent to enter into this
Agreement. Agreement and all the legal
formalities with respect to the right,
C. And whereas the Company has title and interest of the Company
specifically made it clear that the regarding the Said Land on which the
layout plan of Phase-V as is GHS Belaire is to be constructed
present annexed hereto as have been completed. The Company
Annexure-I is tentative and is agrees and undertakes that it shall at
subject to approval of Director, all times keep the Apartment
Town & Country Planning, Allottee(s) (hereinafter referred to as
Haryana, Chandigarh, and any "Allottee(s)") indemnified against all
changes/ directions/ conditions claims, demands, losses etc caused
25
imposed by Director, Town & due to any discrepancy/dispute in the
Country Planning, haryana, right, title or interest of the Company
Chandigarh, at any stage, while in the Said Land on which the GHS
approving the proposed tentative Belaire is to be constructed.
layout plans, shall be binding on
both the Apartment Allottee and C. AND WHEREAS the Director
the Company and the Apartment General Town & Country Planning,
Allottee hereby agrees that it shall Haryana, Chandigarh, (hereinafter
not be necessary on the part of the referred to as the "DTCP") has
Company to seek consent of the granted a license to develop housing
Apartment Allottee for the purpose project vide License No. [.]. The
of making any changes in order to license agreement(s) entered into by
comply with such the Company with the Governmental
directions/conditions/changes and Authorities are annexed herewith as
that the layout plan of Phase-V as Annexure [].
may be amended and approved
from time to time shall supersede D. AND WHEREAS the Company has
the proposed tentative layout plan obtained the final layout plan
as given in Annexure-I hereto approvals for the GHS Belaire from
and/or previously approved layout DTCP that are annexed hereto as
plan(s), as the case may be, and Annexure []. The Company agrees
shall automatically form a part of and undertakes that it will not make
this Agreement as Annexure-I in any changes on its own to these
place of persently attached layout layout plans unless mandated by
plan as Annexure-I or previously DTCP, and such changes shall be
approved layout plan(s) as the communicated to the Allottees in
case may be. writing. The Company has also
obtained the layout plan approvals for
D. And whereas the Company has the entire Phase V in DLF City, which
further clarified to the Apartment are annexed herewith as Annexure
Allottee that the proposed tentative []. It is understood by the Parties that
layout plan of Phase-V as given in except the layout plans for GHS
Annexure-I of this Agreement Belaire, the remaining layout plans
comprises of both group housing for Phase V are tentative in nature
and plotted areas, but however, and are being provided to the
the plotted areas of Phase-V Allottee(s) for information purposes
presently admeasuring 66.25 only and shall not affect the rights of
acres or thereabout are in no way, the Parties.
directly, indirectly or in any manner
whatsoever, connected to this Allottee(s) Representations Agreement, so much so, that this Agreement is confined and limited E. AND WHEREAS the Allottee had in its scope only to this group applied for an apartment in the GHS housing complex to be construted Belaire vide application dated [] and by the Company on the portion of has been allotted apartment no. [] land clearly delineated in (hereinafter referred to as the Annexure-I/ Annexure-IA of this "Apartment") located on [] floor in Agreement. tower / building no [] (hereinafter referred to as the "Building") E. And whereas the Company has alongwith covered / open car parking 26 further clarified to the Apartment spaces in the GHS Belaire, as Allottee that the proposed tentative permissible under law. layout plan as given in Annexure-I of this Agreement depicts several F. AND WHEREAS the Allottee has zones (excluding plotted areas gone through all the terms and presently admeasuring 66.25 conditions set out in this Agreement acres or thereabouts with each and understood the mutual rights and zone as may be earmarked for obligations of the Parties. residential, commercial or other uses, provided however, the total Mutual Representations number of zones and their earmarked uses may be changed G. AND WHEREAS the Parties hereby as per the directions of the confirm that they are signing this competent authority(ies) or at the Agreement with full knowledge of all sole discretion of the Company. the laws, rules, regulations, notifications, etc., applicable to the F. And whereas the Company has Said Land/GHS Belaire and the further clarified to the Apartment terms and conditions contained in Allottee that the proposed tentative this Agreement. layout plan as given in Annexure-I of this agreement may have H. AND WHEREAS the Parties relying plotted areas, commercial areas on the confirmations, representations and residential projects areas as and assurances of each other to may be earmarked in different faithfully abide by all the terms, zones, but however, this conditions and stipulations contained Agreement is confined and limited in this Agreement and all applicable in its scope only to the sale of laws are now willing to enter into this residential apartments in a specific Agreement on the terms and group housing complex to be conditions appearing hereinafter.
named as The Belair (hereinafter referred to in this Agreement as the "said Complex") consisting of Five (05) multi storeyed residential apartment buildings to be constructed on a portion of land presently admeasuring 6.67 Acres or thereabout earmarked and delineated in, Zone 8, Phase-V (hereinafter referred to in this Agreement as the "said Portion of Land") in accordance with the building plan(s) approved by the Director, Town & Country Planning, Haryana, Chandigarh.
The proposed tentative layout plan is given in Annexure IA of this Agreement. The area of the said Portion of Land 6.67 Acres or thereabout may stand modified in future to the extent as may be 27 required pursuant/consequent to any directions/approvals by the Director, Town & Country Planning Haryana, Chandigarh.
G. And whareas the Company has explained to the Apartment Allottee that the purpose of description of entire phase-V given in Annexure-I is merely to acquaint the Apartment Allottee with the overall picture of the development that may take place in Phase-V, and that such tentative description of the overall development plan of Phase-V is not intended to convey to the Apartment Allottee any impression of any right, title or interest in any of the zones to be developed in Phase-V or in any land(s) falling outside the said Portion of Land specifically earmarked for the construction of the said Complex which is the subject matter of this Agreement.
H. And whereas the Company is competent to enter into this Agreement.
I. And whereas the Apartment Allottee has applied to the Company vide application dated 30/10/06 agreeing to the terms and conditions as set out in the application for allotment of the residential Apartment No. ---having an approximate super area (super area is specifically defined in Annexxure II) of ----sq. meters (----
sq. feet approximately) which includes an Apartment area of approximately----sq. mtrs (---- sq. ft approximately) (hereinafter referred to as the "said Apartment"
and is more specifically defined in Annexure II) located on -----floor in Tower/Building No. ----(hereinafter referred to as the "said Building") and for allotment of two (02)/ 28 three(03)/ Four(04) covered/ Open Parking Space Nos. (1) ----- (2) ----
- (3) ----- and (4) -----
J. AND whereas the Apartment Allottee has demanded from the Company and the Company has allowed the Apartment Allottee an inspection of Phase-V including Zone 8 and the said Portion of Land, tentative building plans, tentative location plan, ownership record of Phase-V including Zone 8 and the said Portion of Land and all other documents relationg to the title, competency and all other relevant details and the Apartment Allottee has confirmed that he/she is fully satisfied in all respects with regard to the right, title and interest of the Company, its Associate Companies, its subsidiary companies in the said portion of land on which the said complex/building is being constructed and has understood all the limitations and obligations of the Company in respect thereof.
The Apartment Allottee has agreed that there shall be no further investigations or objections by him/her in this regard and further that he/she is fully satisfied of the competency of the Company to enter into this Agreement.
K. And whereas the Apartment Allottee acknowledges that the company has readily provided all the information and clarifications as required by him/her but that he/she has not relied upon and is not influenced by any architect's plan, sales plans, sale brochures, advertisements, representations, warranties, statements or estimates of any nature whatsoever whether written or oral made by the Company, its selling agents/brokers or otherwise 29 including but not limited to any representations relating to the description or physical condition of the property, the building or the Apartment or the size or dimensions of the Apartment or the rooms therein or any other physical characteristics thereof, the services to be provided to the Apartment Allottees, the estimated facilities/amenities to be made available to the Apartment Allottee(s) or any other data except as specifically represented in this agreement and application and that the apartment allottee has relied solely on his/her own judgment and investigation in deciding to enter into this agreement and to purchase the said Apartment (having specifications set out in Annexure-
V to this agreement). No oral or written representations or statements shall be considered to be a part of this agreement and this Agreement is self contained and complete in itself in all respects.
L. And whereas the Apartment allottee has confirmed to the Company that he/she is entering into this Agreement with full knowledge of all the laws, rules, regulations, notifications etc. applicable to the said DLF City and Phase-V in general and the said Complex /said Building(s) in particular and the terms and conditions contained in this Agreement and that he/she has clearly understood his/her rights, duties, responsibilities, obligations under each and all the clauses of this Agreement.
M. And whereas the Company, relying on the confirmations, representations and assurances of 30 the Apartment Allottee to faithfully abide by all the terms, conditions, and stipulations contained in this Agreement has accepted in good faith his /her application to allot a residential Apartment (having specifications set out in Annexure-
V) and is now willing to enter into this Agreement on the terms and conditions appearing hereinafter.
1.1 In accordance with the terms and In accordance with the terms and conditions conditions set out in this Agreement, set out in this Agreement and mutually mutually agreed upon by and between agreed upon by and between the Parties, the parties, the Company hereby agrees the Company hereby agrees to sell and the to sell and the Apartment Allottee hereby Allottee hereby agrees to purchase the agrees to purchase the said Apartment Apartment in GHS Belaire having Super detailed below having a super area of Area of approximately [] sq. mtr. [] sq ft approximately......mts (.....Sq fit) (the including carpet area of approximately [] sq. definition of super area is given in mtr. [] sq ft. along with area of pro rata share Annexure II) which includes an apartment in the Common Areas and Facilities as area of approximately ....sq. mtrs. (....sq. defined under Section 3(f) of the Apartment ft.) (the definition of Apartment area is Ownership Act, 1983. The Common Areas given in Annexre II) along with undivided and Facilities include the following :
proportionate share/interest in the land though not included in the computation of i. The land on which the building is located; super area only underneath the said Building in which the said Apartment is ii. The foundations, columns, girders, located calculated in the ratio which the beams, supports, main walls, roofs, halls, super area of the said Apartment bears to corridors lobbies, stairs, stair ways, fire the total super area of all the Apartments escapes and entrances and exit of the in the said Building; and exclusive use of building; the two(02)/ three(03)/ four(04) reserved iii. The basements, cellars, yards, gardens, car parking spaces.
parking area and storage spaces;
Tower No/Apartment No. Type:
Super Area Sq. Mts/Sq.ft. Approx. (Rs.) : iv. The premises for the lodging of janitors Rate (Rs.per sq. mt./sq.ft of super area or persons employed for management of (Rs.): property;
Preferential Location Charges (Rs.): Price for car Parkings (Rs.): v. Installation of central services such as Total sale Price: power, light, gas, hot and cold water, heating, refrigeration, air conditioning and Parking : Nos. (1)-------(2)--------(3)---------- incinerating; (4)------
Price payable Rs............ vi. The elevators, tanks, pumps, motors, Any tax paid or payable by the Company fans, compressors, ducts and in general all and/or its Contractors by way of Value apparatus and installations existing for Added Tax, State Sales Tax, Central common use; Sales Tax, Works Contract Tax, Service vii. Such community and commercial Tax, and Education Cess or any other facilities as may be provided for in the taxes by whatever name called, in 31 connection with the construction of the declaration (and listed in Annexure []); and said Complex (hereinafter collectively referred to as "Taxes"). viii. All other parts of property necessary or convenient to its existing maintenance and The Apartment Allottee shall pay, in safety or normally in common use. addition to the total price a price equal to The Total Price for the Apartment based on the proportionate share of Taxes; the the Super Area and Preferential Location proportionate share being calculated in Charges, if any, is [](hereinafter referred to the ratio of the super area of the said as "Total Price"):-
Apartment to the total super area of all the apartments in the said Complex Building/ Rate of Rate of Preferent (hereinafter referred to 'the additional Tower carpet area of Location price') No/Name/ area of the Charges Apartment Apartment prorata (Rs) The Company shall periodically intimate No / Type Sq Mts/ share in to the Intending Allottee, on the basis of [] Floor Sq Ft Commo certificates from a Chartered Engineer n Areas and /or a Chartered Accountant, the and amount payable as additional price as Facilitie stated in (ii) above and the Apartment s Allottee shall make payment within 30 (Thirty ) days of such intimation.
The price of two (02)/ three (03)/ four (04) Parking: Nos. (1)-------(2)--------(3)---------- car parking spaces valued at Rs....
(4)------
(Rupees......only) per car parking space A sum of Rs [] which has been offered as aggregating to Rs..../- is included in the discount by the Company shall be deducted above sale price of the said apartment.
from the aforesaid price.
Any additional car parking space will be charged extra by the Company at the Explanation:
then prevailing rate and will be offered subject to availability.
(i) The Total price above does not include any Taxes (consisting of tax paid or payable The total price is Rs..... (Rupees.....only) by the Company and/or its Contractors by (inclusive of Rs.....) towards two way of Value Added Tax, State Sales Tax, (02)/three (03) /four (04) car parking Central Sales Tax, Works Contract Tax, spaces, whichever is applicable, payable Service Tax, and Education Cess or any for the said Apartment together with the other taxes by whatever name called, in parking spaces and the said Apartment connection with the construction of the GHS along with the parking spaces will be Belaire) payable by the Company up to the treated as a single indivisible unit for all date of handing over the possession of the purposes including but not limited to Apartment.
Haryana Apartment Ownership Act, 1983 etc.
(ii)The Allottee shall pay, in addition to the Total Price, a sum equal to the proportionate share of Taxes; the proportionate share will be calculated in the ratio of the Super Area of the Apartment to the total Super Area of all the Apartments in the GHS Belaire.
32(iii) The Company shall periodically intimate to the Allottee, on the basis of certificates from a chartered engineer and/ or a chartered accountant, the amount payable as stated in (ii) above and the Allottee shall make payment within 30 days from the date of such written intimation. In addition, the Company shall provide to the Allottee the details of the tax paid or demanded along with the acts/rules/notifications together with dates from which such taxes/levies etc have been imposed or become effective.
(iv) The Total Price of an Apartment includes [] parking space (s) whether located in the open or covered as provided in the Agreement. Any additional car parking space (s) will be charged extra by the Company and will be offered subject to availability.
1.2 The total prices are escalation free, save The Total Price is escalation-free, save and and except increases which the except increases which the Allottee hereby Apartment Allottee hereby agrees to pay, agrees to pay, due to increase on account due to increase in super area (as of External Development Charges ("EDC"), explained in Clause 1.6), increase in Infrastructural Development Charges ("IDC") external development charges (as and all other increases in cost/charges explained in Clause (1.11)(a), increase in specified in the Agreement to be paid by the infrastructure development charges (as Allottee and/or any other increase in explained in clause 1.11(b)), increases on charges which may be levied or imposed by account of additional fire safety measures the Governmental Authorities from time to undertaken (as explained in Clause 1.13) time or as stated in this Agreement. increases in all types of securities to be paid by the Apartment Allottee, deposits The Company undertakes and agrees that and charges and increase thereof for bulk while raising a demand on the Allottee for supply of electrical energy (as explained increase in EDC, IDC, cost/charges in Clause (14.3)) and all other increases imposed by the Governmental Authorities, in cost/charges, specifically provided for the Company shall enclose the said in this Agreement and/or any other notification/order/rule/regulation to that charges which may be levied or imposed effect along with the demand letter being by the Government/statutory authorities issued to the Allottee. from time to time.
1.3 The Apartment Allottee(s) shall make the The Allottee(s) shall make the payment as payment as per the payment plan set out per the payment plan set out in Annexure in Annexure III to this Agreement. The []. Taxes shall be payable as provided in additional price however shall be payable sub clause (iii) of the Explanation to Clause as provided in sub clause (iii) of the 1.1 above.
33Explanation to Clause 1.1 above.
1.4 The Company may allow, in its sole The Company may allow, in its sole discretion, a rebate for early payments of discretion, a rebate for early payments of installments payable by the Apartment installments payable by the Allottee by Allottee by discounting such early discounting such early payments @[]% 1 per payments @9% per annum for the period annum for the period by which the by which the respective installment has respective installment has been preponed. been preponed. The provision for The provision for allowing rebate and such allowing rebate and such rate of rebate rate of rebate shall not be subject to any shall be subject to revision/withdrawal, revision/withdrawal, once granted to an without any notice, at the sole discretion Allottee by the Company. of the Company 1.5 The Apartment Allottee hereby agrees to The Allottee has agreed to pay Preferential pay additionally as preferential location Location Charges as stated in para 1.1. charges a sum of Rs...../- (Rupees....only) However, if due to any change in the lay out calculated @ of Rs..../- per sq. ft. of the / building plan as directed by the DTCP on super area to be paid in a manner and its own, the Apartment ceases to be in the within the time as stated in the schedule preferential location, the Company shall be of payments given in Annexure III. liable to refund the entire amount of However the apartment allottee has Preferential Location Charges with interest specifically agreed that due to any @[]% per annum to the Allottee. If the change in the Lay-out/Building plan, the Allottee so agrees the Company can adjust said apartment ceases to be in a this sum against the next payment to be preferential location, the Company shall made by Allottee as per the schedule of be liable to refund only the amount of payments given in Annexure []. Preferential Location Charges, without any interest, paid by the apartment allottee and such refund shall be made/adjusted in the last installment as stated in the schedule of payments given in Annexure III. If due to any change in the Lay out/Building plan(s), the said apartment becomes preferentially located, then the Apartment Allottee agrees to pay the additional preferential location charges to the Company calculated @Rs.../- per sq. ft. of the super area of the said apartment (____% of Basic Sale Price), to be paid in the manner as demanded by the Company.
1.6 It is made clear by the Company and the The Super Area allotted to the Allottee is Apartment allottee agrees that the sale subject to change till the construction of the price of the said apartment shall be Building is complete.
1The rates of interest are not being prescribed by the CCI and are left blank, however wherever rates of interest are applicable to both parties in similar circumstances they should be reasonable and uniform; and where applicable only to one party, should be reasonable.
34calculated on the basis of its super area (as per the definition of super area given The Company shall, before making in Annexure II) and that the super area as variations, inform the Allottee about the stated in this Agreement is tentative and same in writing in advance about its is subject to change till the construction of intention to carry out minor changes and the said building is complete and thereafter the Company may carry out such occupation certificate is issued by the changes upto (+/- 2%).It is agreed that the competent authority (ies). The final super Company shall not make any variations area of the said Apartment shall be beyond (+/- 2%) without the consent of the confirmed by the Company only after the majority of the Allottees. construction of the said building is complete and the occupation certificate is It is acknowledged and agreed by the granted by the competent authority. The Company and Allottee that every element of total price payable for the said apartment floor plans has relevance to the Allottee and shall be recalculated upon confirmation thus all elements of all the floor plans by the Company of the final super area of included in Annexure [] must remain largely the said apartment and any increase or intact even after the changes in the Super reduction in the super area of the said Area. The Company shall confirm the final Apartment shall be payable or refundable, Super Area that has been allotted to the as the case may be, without any interest, Allottee after the construction of the Building at the same rate per square meter as is complete and the occupation certificate is agreed in Clause (1.1) of this Agreement granted by the competent authority (ies), by i.e. on the rate irrespective of any rebates furnishing details of the changes in the allowed/payment plan opted for. If there Super Area. shall be an increase in super area, the Apartment Allottee agrees and The total price payable for the Super Area undertakes to pay for the increase in shall be recalculated upon confirmation by super area immediately on demand by the Company. If there is any reduction in the the Company as and when such demand Super Area within the defined limit of 2%, is intimated to the Apartment Allottee by then Company shall refund the money paid the Company irrespective of receipt of the by Allottee immediately with []% per annum Occupation Certificate and if there shall interest. If there is any increase in the Super be a reduction in the super area, then the Area allotted to Allottee, the Company will refundable amount due to the Apartment demand that from the Allottee as per the Allottee shall be adjusted by the next milestone of schedule of payments in Company from the final installment as set Annexure []. All these monetary forth in the Schedule of Payments in adjustments will be made at the same rate Annexure III. per square meter as agreed in Clause (1.1) of this Agreement adjusted for all the The definition of super area, Apartment rebates allowed/payment plan opted for, area, the tentative percentage of together with the next payment milestone apartment area to super area as on the due as per schedule of payment defined in date of execution of this agreement (the Annexure []. percentage of apartment area to super area shall be subject to change till the construction of the said Building is complete) are clearly described by the Company in Annexure II which forms part of this Agreement and is hereby accepted by the Apartment allottee. The apartment 35 allottee confirms that he/she has read, understood and agrees to this definition and that he/she has no objection to the same and the Apartment Allottee has assured the Company that after having agreed to the definition of super area given in Annexure II as the basis for the purchase and payment of price of the said Apartment, he/she shall not raise any dispute or make 1.7 It is further clarified to the Apartment The Allottee shall have the right to the Allottee that the Company has calculated Apartment as mentioned below:
the total price payable for the said Apartment on the basis of its super area (i) The Allottee shall have exclusive (as specifically defined in Annexure II) ownership of the Apartment. which comprises of the apartment area and pro rata share of the common areas (ii) The Allottee shall also have and facilities within the Belaire and undivided proportionate share proportionate share of Club and other interest in the Common Areas and common facilities within/outside, if any, Facilities as defined in the the said Building only and proportionate Haryana Apartment Ownership share of other common facilities, if any, Act 1983 (hereinafter referred to which may be located anywhere in the as "Apartment Act") in the GHS said Complex, The Belaire, at the sole Belaire. Since the share / interest discretion of the Company (as listed in of Allottee in the Common Areas Part A & B of Annexure IV). The and Facilities is undivided and Company makes it abundantly clear to cannot be divided or separated, the Apartment Allottee that he/she shall the Allottee shall use the be entitled to the ownership rights and Common Areas and Facilities rights of usage only as per details given within the GHS Belaire below: harmoniously along with other occupants, maintenance staff etc.,
(i) The Apartment allottee without causing any shall have ownership of the inconvenience or hindrance to said Apartment consisting of them. Further, the right of the the apartment area only. The Allottee over the Common Areas definition of apartment area is and Facilities shall be within the given in Annexure II. The GHS Belaire (as listed in apartment area is included in Annexure []) or outside the the computation of super area Belaire Complex if charged from (super area is defined in the Allottee and the use thereof Annexure II). shall always be subject to the timely payment of maintenance
(ii) The Apartment Allottee charges and other charges as shall also have undivided applicable.
proportionate share/interest in the common areas and facilities (iii) That the computation of the price within the said Building/said of the Apartment includes Complex and proportionate recovery of price of land, share of other common construction of not only the 36 facilities, if any, which may be Apartment but also the Common located within or outside the Areas and Facilities included in Apartment Buildings (as listed Annexure [] and situated within in Part A & B of Annexure IV). the said GHS Belaire.
As the share/interest of Apartment Allottee in the common areas and facilities is undivided and cannot be separated this would require him/her to use the common areas and facilities within the said Complex only (as listed in Part A & B of Annexure IV) harmoniously along with other occupants, maintenance staff etc., without causing any inconvenience or hindrance to them. Further it is clearly understood and agreed by the Apartment Allottee that even if the common areas and facilities within the said Complex only (as listed in Part A & B of Annexure IV) is included in the computation of super area, the right of the Apartment Allottees to use the common areas and facilities shall be within the said Complex only (as listed in Part A & B of Annexure IV) and shall always be subject to the timely payment of maintenance charges. It is further made abundantly clear and the Apartment Allottee has understood that he /she shall be entitled to undivided proportionate share/interest in no other common areas and facilities except the common areas and facilities within the said Complex only as listed in Part A & B of Annexure IV.
(iii) In addition to above, though not forming a part of computation of super area for which price is charged, the Apartment Allottee shall have the ownership of undivided 37 proportionate share/interest in the land underneath the said Building only (i.e. the land which is the foot print of the Building in which the said Apartment is situated). The undivided proportionate share/interest of land underneath the said Building shall be calculated in the ratio of super area of the said Apartment to the total super area of all the apartments within the said Complex only. It is made abundantly clear and agreed by the Apartment Allottee that no other land (s) is/are forming part of this Agreement, and the Apartment Allottee shall have no right, no title, no interest of any kind whatsoever on any other land(s) except to the extent of using only such general common areas and facilities within the said Complex, DLF City, Phase V limited to and precisely listed in Part-C of Annexure IV subject, however, to the timely payment of maintenance charges by the Apartment Allottee.
It is made clear by the Company and specifically understood by the Apartment Allottee that the Company may at its sole discretion and for the purpose of complying with the provisions of Haryana Apartment Ownership Act, 1983 or any other applicable laws substitute the method of calculating the proportionate share in the ownership of the land beneath the building and/or common areas and facilities as may be described by the Company in its sole discretion in any declaration by calculating the same in the ratio 38 of his/her apartment's value to the total value of the said building(s) project/scheme, as the case may be, and that the apartment allottee agrees not to raise any objections in this regard.
(iv) In addition to the above, though not forming a part of the computation of super area, the Apartment Allottee shall be entitled, without any ownership rights, to exclusively use the To be deleted covered/Open car parking space specifically allotteed to him for parking his/her vehicle in terms of Clause (1.12) below and as listed in Part-D of Annexure IV.
(v) In addition to above though not forming a part of the -do-
computation of super area for which price is charged, the Apartment Allottee shall also be entitled for use only, the general common areas and facilities within the said Complex limited to and precisely listed in Annexure IV, Part-C, which may be within or outside the land underneath the said Building earmarked as common areas by all the occupants of all the buildings to be constructed on the said Portion of Land. However, such general common areas and facilities earmarked for common use of all occupants shall not include the exclusive covered parking space in basements/stilts and open parking spaces, if individually allotted to the respective occupants for their use.
(vi) It is specifically made clear to the Apartment Allottee 39 and is agreed by the Apartment Allottee that as the proposed apartments are nearby to the boundaries of DLF Golf and Country Club or any other recreational and sporting -do-
activities including golf and tennis etc., the Apartment Allottee shall have no right, title or interest in the ownership of the DLF Golf and Country club and its ancillary facilities, its membership, operation and running of the DLF Golf and Country club or any other recreational and sporting activities including golf and tennis etc. The Apartment Allottee shall not raise any dispute/objection to any activity(ies) of the DLF Golf and Country Club or any other recreational and sporting activities including golf and tennis etc. including but not limited to lighting arrangements, parties/get together, tournaments and other activities of the DLF Golf and Country Club which may be carried through out the year at the sole discretion of the management of the DLF Golf and Country Club or any other recreational and sporting activities including golf and tennis etc. It is further made clear that the area earmarked for the DLF Golf and Country Club and its facilities, various community facilities like school, recreational and sporting activities including golf, tennis, hotels, other clubs, hospitals and the like shall not be a part of the complex where the said apartment/said Building is proposed to be located and the Apartment Allottee will be required to pay separate 40 deposits/charges for securing admission and usage to the DLF Golf and Country Club or any other recreational and sporting activities including golf and tennis etc. and other community facilities, the acceptance or rejection of which shall be at the sole discretion of the management of the DLF Golf and Country Club or any other recreational and sporting activities including golf and tennis etc. and other community facilities and the Apartment Allottee shall not raise any dispute/objection in this regard at any time during the occupancy of the said Apartment. It is further made clear to the Apartment Allottee that the running and operation of the DLF Golf and Country Club or any other recreational and sporting activities including golf and tennis etc. and other community facilities including nearby governmental installations/statutory reasons may cause disturbance to the occupants of nearby areas for which the Apartment Allottee specifically agrees not to raise any dispute or make any claim of whatsoever nature against the Company in this regard.
(vii) While the super area of the said Apartment does not include any recovery/loading towards the cost of construction -do-
or area of club /Community Centre within the said Complex, the Apartment Allottee(s) have conditional right of usage of facilities of a common nature which may be provided on the Club/Community center within the said Complex only.
41However, the Company reserves the right to include such areas in the computation of final super area of the apartment at any stage with the proviso that the price shall not be charged for such additional area of the Club/Community Center from the Apartment Allottee(s) and the Apartment Allottee(s) shall not raise any objection thereto. It is clarified and understood that this club/community center is distinct and independent from DLF Golf and Country Club/any other club in DLF City/Community center sites in DLF City and /or any other recreational and sporting activities including golf and tennis etc. and any other activity/amenity facility of a general nature provided by the Company. This right of usage is limited to the said Site within the said Complex only and is subject to the fulfilment of the terms and conditions as stipulated in this application and Payment Plan. The Apartment Allottee authorises the Company to formulate at the Company's sole discretion appropriate management structure and policies, rules and regulations for the said Club/Community Centre and upon intimation of the formalities to be complied with by the Company, the Apartment Allottee undertakes to fulfil the same. It is understood that the Club/Community Centre usage shall be limited to only the occupants of the Complex and the Company may make suitable provision of convenants to this effect in the 42 necessary documents which the Apartment Allottee undertakes to faithfully comply with without raising any objections. It is understood that the entire operating cost of the said Club/community facility, improvements/up gradations to be carried out over a period of time, direct usage charges for the facilities used and the items consumed by the Apartment Allottee from time to time, shall in no way constitute any portion of the sale price of the said Apartment and shall be paid extra and are outside the scope of this application, payment plan of the Apartment Buyers' Agreement.
(viii) That the company has made it specifically clear to the Apartment allottee and after -do-
having satisfied himself/themselves, the Apartment allottee has understood and agreed that the computation of the price of the said Apartment does not include any element of recovery or payments towards land, construction, running and operation of community buildings/sites, other recreational and sporting activities including golf and tennis etc. as well as recovery of payment towards maintenance charges of any kind by the Company from the Apartment Allottee in any manner. Further, the Apartment Allotttee understands and fully agrees that the Company is free to deal with community buildings/sites/recreational and sporting activities including golf and tennis etc. in any manner as the Company may deem fit 43 and as regards payment of maintenance charges the Apartment Allottee shall not raise any claim against payment of maintenance charges payable by the Apartment Allottee to the Association of apartment allottees/the maintenance agency/the company for such maintenance from the Date of Occupation certificate.
1.8 All other land(s) areas, facilities and To be deleted amenities including those listed below, are specifically excluded from the scope of this Agreement and the Apartment Allottee shall not be entitled to any ownership rights, rights of usage, title or interest etc. in any form or manner whatsoever in such land(s), areas, facilities and amenities. Such lands, areas, facilities and amenities have not been included in the scope of this Agreement or in the computation of super area for calculating the sale price and, therefore, the Apartment Allottee has not paid any money for use or ownership in respect of such lands, areas, facilities and amenities. The Apartment Allottee agrees and understands that the ownership of such lands, areas, facilities and amenities vests solely with the Company, its Associate companies, its subsidiary companies and their usage and manner/method of use, disposal etc. shall be at the sole discretion of the Company, its Associate companies, its subsidiary companies.
All land(s), areas, (except the general common areas and facilities and amenities within the said Complex earmarked for common use, limited to and precisely listed in Part B of Annexure IV) falling outside the land underneath the said Building in which the said Apartment is located including but not limited to those as listed in Annexure IV, Part C, or any other facility or amenity as may be provided at the sole option and sole discretion of the Company or as may be 44 provided in accordance with the directions of any competent authority(ies) including but not limited to schools, shops, facilities, amenities etc. even if provided in the said Building, are specifically excluded from the scope of this Agreement and the Apartment Allottee shall have no ownership rights, no right of usage, no title, no interest or no claims whatsoever in such land(s), areas, facilities and amenities within the said Building, the said Portion of Land or any where in Phase V. The Apartment Allottee hereby gives an irrevocable undertaking to the Company that he/she shall never claim any rights, title nor any interest in these land(s), areas, facilities and amenities, including but not limited to those listed in Annexure IV, Part-E, as they are specifically excluded from the scope of this Agreement and are not included in the computation of super area in any manner, and for which the Apartment Allottee has not paid any money to the Company in any form or manner whatsoever and that the Apartment Allottee agrees that he/she shall not, at a later date, after execution of this Agreement, raise any claim or create any dispute in respect of such land(s), areas, facilities and amenities. The Company, its Associates, its subsidiary companies as the owner of such lands, areas facilities and amenities shall have sole right and absolute authority to deal with the same in any manner including but not limited to creation of rights in favour of any other party by way of sale, transfer, lease, joint venture, collaboration or any other mode including transfer to Government, Semi Government, any other Authority, Body, any Person, Institution, Trust and/or any Local Body(ies) which the Company may deem fit in its sole discretion.
All land(s) [ other than usage of land(s) earmarked in the layout plan as may be approved from time to time as public roads only for use by general public in 45 Phase-V and in DLF City.] falling outside the periphery/boundary of the said Portion of Land are clearly outside the scope of this Agreement and the Apartment Allottee shall have no ownership rights, no rights of use, no title no interest of any kind or manner whatsoever in such lands falling outside the periphery/boundary of the said Portion of Land. The Company, its Associate companies, its subsidiary companies as the owner of some of these lands, areas, facilities and amenities shall have the sole right and the absolute authority to deal in any manner including but not limited to creation of further rights in favour of any other party by way of sale, transfer, lease or any other mode which the Company may deem fit in its sole discretion.
The Apartment Allottee confirms and represents that he/she has not made any payment to the Company in any manner whatsoever and the Apartment Allottee hereby agrees that the Company has not indicated/promised/represented/given any impression of any kind in an explicit or implicit manner whatsoever, that the Apartment Allottee shall have any right, title or interest of any kind whatsoever in any lands, building, common areas, facilities and amenities falling outside the land underneath the said Building save and except the use of general common areas (for the purpose of direct exit to a nearest public street, nearest road only) to be identified by the Company in its sole discretion and such identification by the Company in its plans now or in future shall be final, conclusive and binding on the Apartment Allottee. Further the Company has made clear to the Apartment Allottee that it shall be carrying out extensive development/construction activities now and for many decades in future in the entire area falling outside land underneath the said Building in which his/her Apartment is located and that the Apartment Allottee has confirmed 46 that he/she shall not raise any objection or make any claims or fail to pay installments in time as stipulated in Schedule of Payments in Annexure III on account of convenience, if any, which may allege to be suffered by him/her due to such development/construction or its incidental/related activities. It is made clear by the Company and agreed by the Apartment Allottee that all rights including the rights of ownership of land (s), facilities and amenities (other than those within the said Building and the land underneath the said Building only) shall vest solely with the Company, its Associate companies, its subsidiary companies who shall alone have the sole and absolute authority to deal in any manner with such land(s), facilities and amenities including but not limited to creation of further rights in favour of any other party by way of sale, transfer, lease, collaboration, joint venture, operation and management or any other mode including transfer to Government, Semi-
Government, any other Authority, Body any Person, Institution, Trust and /or any Local Body(ies) which the Company may deem fit in its sole discretion. The Company relying in good faith on this specific undertaking of Apartment Allottee in this Agreement has agreed to accept the application and allot the said Apartment and this undertaking shall survive throughout the occupancy of the Apartment by the Apartment Allottee, his/her legal representative, successors, administrators, executors, assigns etc. 1.9 It is made clear by the Company and the It is made clear by the Company and the Apartment Allottee agrees that the said Allottee agrees that the Apartment along Apartment along with two02)/three with [] car parking spaces will be treated as (03)/four (04) car parking spaces will be a single indivisible unit for all purposes treated as a single indivisible unit for all including but not limited to Haryana purposes including but not limited to Apartment Ownership Act, 1983. Haryana Apartment Ownership Act, 1983 and amendments thereto. The Apartment It is agreed that the GHS Belaire is an Allottee further agrees that the Common independent, self contained group housing areas and within/outside apartment scheme covering the said Land and is not a buildings (as listed in Part A of Annexure part of any other project or zone and shall IV) are for common use of all the not form a part of and/or linked/combined 47 occupants of the said Building and that with any other project in its vicinity or the general common areas and facilities otherwise except for the purpose of within the said Complex which are integration of infrastructure for the benefit of outside the land underneath the said the Allottee. Building (excluding reserved parking areas) as listed in Part B of Annexure IV are for common use of occupants of all the buildings to be constructed on the said Portion of Land. However, it is specifically made clear to the Apartment Allottee that his/her right to use such common areas and facilities within the said Building (as listed in Part A of Annexure IV) and general common areas and facilities (as listed in Part B of Annexure IV) falling outside the land underneath the said Building (excluding car parking spaces specifically allotted and assigned to the Apartment Allottee(s) but within the said Complex shall be limited to the areas within the said Complex as may be included in the Declaration which may be filed by the Company at its sole discretion in terms of the Haryana Apartment Ownership Act, 1983 or any other amendment(s) or statutory modification(s) or re-enactments thereof or under the provisions of any other applicable law(s) and the Apartment Allottee hereby agrees that such Declaration shall be binding upon the Apartment Allottee. The Apartment Allottee has assured the Company to faithfully abide by such declaration. The common areas and facilities within the said Building (as listed in Part A of Annexure IV) and the general common areas and facilities within the said Complex (as listed in Part B of Annexure IV) shall be available for use by the Apartment Allottee subject to the timely payment of maintenance charges and the Apartment Allottee agrees that in the event of failure to pay maintenance charges on or before due date, he/she shall not have the right to use such common areas and facilities and such general common areas and facilities.
It is further clarified by the Company and agreed to by the Apartment allottee that 48 the company may at its sole discretion make The Belair project a part of any other adjacent project that has already come into existence or maybe constructed in future at any time or keep it separate as an independent estate and the Apartment allottee shall not raise any objection for such formation. In the event of any such formation, the common areas and facilities and the \undivided interest of each apartment owner shall be specified by the Company in the declaration which may be filed by the Company in compliance of the Haryana Apartment Ownership Act, 1983 which shall be conclusive and binding upon the apartment owners and the Apartment allottee agrees and confirms that his/her right, title and interest in the said Apartment/said Building/said Complex as specified in the said declaration shall be acceptable to him/her without any objection/dispute against the Company/Association of the Apartment owners or Association of Condominium, as the case may be.
1.10 It is specifically made clear by the It is understood by the Allottee that all other Company and understood by the areas and facilities (not included in Apartment Allottee that all other areas Annexure []) i.e. areas and facilities falling and facilities (not included in Part-A and outside the GHS Belaire shall not form a Part-B of Annexure IV) including but not part of the Deed of Declaration to be filed in limited to those as listed in Part D of accordance with the Haryana Apartment Annexure IV or any other facility or Ownership Act, 1983. amenity as may be provided by the Company at its sole option and discretion or provided in accordance with the direction of any competent authority(ies) and including but not limited to shops, facilities, amenities if provided at the Company's sole option and discretion in the stilts of the said Building, are specifically excluded from the scope of this Agreement and, therefore, shall not form a part of the declaration to be filed in terms of Haryana Apartment Ownership Act, 1983 or any other amendment(s) or statutory modification(s) or re-enactments thereof or under the provisions of any other applicable law(s).
491.11 It is made clear by the Company and Any raise in the IDC and EDC imposed by agreed by Apartment allottee that the the Government after the date of execution payment of External Development of the Agreement, or imposition/levy of charges shall always be solely to the additional levy(ies), fees, cesses, charges account of Apartment allottee to be borne etc. in the nature of infrastructure charges and paid by all the apartment allottees in and or by whatever name either existing or proportion to the super area of their leviable in future imposed/levied by the respective apartments to the total super Government of Haryana or any other area of all the Apartments in all the authority, shall be paid by the Allottee either buildings in the said Complex. The pro directly to the concerned authorities or if rate share of External Development paid by the Company on behalf of the charges as levied by the Govt. of Allottee or demanded from the Company, Haryana up to the date of issue of pay the same to the Company on pro-rata licenses originally paid by the company basis as specified in clause 38 of this as applicable to the said apartment is Agreement 2. In case such IDC are levied/ already taken into account by the demanded by the government from the Company while determining the total Company with retrospective effect, the price payable by the Apartment Allottee Allottee shall be liable to pay the same on for the said Apartment. The Apartment demand being raised by the Company on allottee undertakes to additionally pay to pro-rata basis as stated hereinabove. The the Company, on demand, any increase Company assures the Allottees that the in the External Development charges Company had paid the requisite IDC and levied, (over and above the rate originally EDC till the date of execution of the paid by the company and included in the Agreement. sale price on which EDC is charge up to the date of issue of license by the Govt.
of Haryana), by whatever name called or in whatever form and with all such conditions imposed, by the Haryana Govt.
and /or any competent authority and such increase in external development charges shall be borne and paid by the Apartment Allottee in proportion to the super area of his/her Apartment to the total super area of all the Apartments in all the buildings in the said Complex as determined by the company. If such charges are increased (including with retrospective effect) after the sale deed has been executed then the Apartment Allottee undertakes to pay such charges directly to the government agency or department concerned or to the company as may be called for immediately on demand. In the event of such charges remaining unpaid, the 2 Clause 38 states the 'method of calculation of proportionate share ...' and numbering of the clause will change if all modified agreement is accepted.
50Apartment allottee agrees that the company shall have an unfettered right to resume the said Apartment and the apartment allottee shall have no right, title and interest left in the apartment thereafter. The apartment allottee further agrees that he/she would not be competent to challenge such action of resumption of the said apartment by the Company due to default of non-payment of such enhanced external development charges on the part of the Apartment Allottee.
In addition to the external development charges, as mentioned in Clause 1.11 (a) hereinabove, the Government of Haryana or any other authority, with a view to recover the cost of development with regard to State/National Highways, transport, irrigation facilities, power facilities etc. may impose/levy additional levy(ies), fees, cesses, charges etc. by whatever name called on prescribed basis either existing or leviable in future and in that event, the Intending Allottee agrees to pay the same either directly to the concerned authorities paid by the Company or demanded from the company, reimburse the same to the Company on pro-rate basis on demand being raised by the Company on him in this regard. It is made clear that the said charges shall be levied on pro-rate basis pertaining to the said apartment in The Belaire Complex and the same shall be assessable/applicable/calculable from the date of this Application. It has further clarified to the Intending Allottee that the said Infrastructure Development Charges shall be payable by the Intending Allottee in addition to the External Development Charges mentioned in Clause 1.11 (a) hereinabove. In case such Infrastructure Development Charges are levied/demanded by the government from the Company with retrospective effect for any reason whatsoever, the Intending Allottee shall be liable to pay the same on demand being raised by the Company on 51 retrospective basis from the date of this Application on pro-rata basis as stated hereinabove. In case the Sale Deed has already been executed in favour of the Intending Allottee by the Company and the demand of Infrastructure Development Charges has been made by the concerned Authority after the execution of such Sale Deed, then in that event the pro-rate demand made by the Company on the Intending Allottee shall be treated as unpaid sale price of the said apartment and the Company shall have a lien on the apartment to the extent of such unpaid amount.
1.12 The Apartment Allottee agrees that the The Allottee agrees that the [] covered/open Two (02)/Three (03)/Four (04) parking space allotted to him/her for covered/open parking space allotted to exclusive use shall be understood to be part him/her for exclusive use shall be of the the Apartment and the same shall not understood to be together with the have independent legal entity detached from Apartment and the same shall not have the said Apartment. As the parking spaces independent legal entity detached from are an integral amenity of the Apartment the said Apartment. As the parking and the parking spaces form one single spaces are an integral amenity of the said indivisible unit, the Allottee undertakes not Apartment and the said Apartment to sell/transfer/deal with the parking space alongwith two/three car parking spaces independent of the Apartment. The Allottee form one single indivisible unit. The undertakes to park his/her vehicle in the Apartment Allottee undertakes not to parking space allotted to him/her and not sell/transfer/deal with the parking space anywhere else within the GHS Belaire. It is independent of the said Apartment. The specifically made clear and the Allottee Apartment Allottee undertakes to park agrees that the service areas in the his/her vehicle in the parking space basement, if any, provided anywhere in the allotted to him/her and not anywhere else complex shall be kept reserved for services, in the said Complex. It is specifically use by maintenance staff etc. and such made clear and the Apartment Allotted areas shall not be used by the Allottee for agrees that the service areas in the parking his/her vehicles. The Allottee agrees basement, if any, provided anywhere in and confirms that the parking space allotted the said Complex shall be kept reserved to him/her shall automatically be cancelled for services, use by maintenance staff in the event of cancellation, surrender, etc. and such areas shall not be used by relinquishment, resumption, re-possession the Apartment Allottee for parking his/her etc. of the said Apartment under any of the vehicles. The Apartment Allottee agrees provisions of this Agreement. A tentative that all such car parking spaces allotted parking plan is given in Annexure []. All to the occupants of the building(s)/said clauses of this Agreement pertaining to use, Complex shall not form part of common possession, cancellation etc. shall apply areas and facilities of the said mutatis mutandis to the said parking spaces Apartment/any building constructed on wherever applicable. the said Site for the purpose of the declaration to be filed by the Company under Haryana Apartment Ownership Act, 52 1983. The Apartment Allottee agrees and confirms that the parking space allotted to him/her shall automatically be cancelled in the event of cancellation, surrender, relinquishment, resumption, re-
possession etc. of the said Apartment under any of the provisions of this Agreement. A tentative parking plan is given in Annexure-IV. All clauses of this Agreement pertaining to use, possession, cancellation etc. mutatis mutandis to the said parking spaces wherever applicable.
1.13 The total price of the said Apartment The Total Price of the Apartment includes mentioned in the schedule of payments in the cost of providing electric wiring, fire Annexure III of this Agreement is detection and fire fighting equipment in the inclusive of the cost of providing electric Common Areas and Facilities within the wiring, fire detection and fire fighting GHS Belaire as prescribed in the Fire equipment in the common areas within Fighting Code/Regulations under National the said Building/said Complex as Building Code 1983, amendment No.3 of prescribed in the fire fighting January, 1997. code/regulations under National Building Code 1983, amendment No.3 of January, The Company undertakes to provide 1997. Power back-up may be provided residential electricity connection through subject to timely payment of maintenance Dakshin Haryana Bijli Vitran Nigam charges, not exceeding 7.5 KVA load per (DHBVN) or State Electricity Boards (SEB) Apartment in Building A, B & C and 10 with sufficient capacity as defined in KVA load per Apartment in Buildings D&E Annexure [] for the GHS Belaire. The at 70% load factor in addition to that for Company shall also provide sufficient the common areas and services. backup power facility for the requirements However, DG set capacity calculation defined in Annexure []. The backup power shall take into account suitable overall plant may be located within or outside the diversity of 60%. This back-up is complex and the same shall be an integral exclusive of the back-up required and part of the Common Area and Facilities of provided for Central Air-conditioning plant the GHS Belaire and for the exclusive use of of the Complex to be located in the the GHS Belaire. services area(s). It is specifically made clear to the Apartment Allottee that in the In the event that any other type of event of non payment of electricity connection (other than residential) such as charges as billed by the Company/the industrial or commercial, is provided at the Maintenance Agency, the Company/the time of handing over the possession, the Maintenance Agency shall have the right Company shall bear the additional cost of to disconnect such supply of electricity electricity charges and the Allottees shall be without any notice. The total price of the liable to pay the electricity charges, based said Apartment does not include the cost on their actual consumption, only at the of electric fittings, fixtures, geysers, rates applicable for residential connection electric and water meter etc. which shall as chargeable by DHBVN from time to time. be got installed by the Apartment Allottee at his/her own cost. If due to any The Total Price of the Apartment does not subsequent legislation/Govt. order, include the cost of electric fittings, fixtures, directives, guidelines or electric and water meter etc. within the 53 change/amendments in Fire Code Apartment which shall be installed by the including the National Building Code or if Allottee at his/her own cost. If, before the deemed necessary by the Company or handing over possession, due to any any of its nominees at its sole discretion, change or enactment of any legislation, additional fire safety measures are laws, bylaws or Govt. orders, directives, undertaken, then the Apartment Allottee guidelines or change /amendments in Fire undertakes to pay within thirty (30) days Code including the National Building Code, from the date of written demand by the any additional fire safety measures are Company, the additional expenditure required to he installed, the Company shall incurred thereon along with other install the same and the said liability, after Apartment Allottees proportion to the the handing of possession, shall be of the super area of his/her Apartment to the Allottees who shall pay on pro rata basis. total super area of all the Apartments in the said Building/said Complex as determined by the Company.
1.14 The Apartment allottee has agreed and To be deleted.
understood that the company or its agents may at their sole discretion and subject to such government approvals as may be necessary, enter into the arrangement of generating and/or supplying power to the various complexes with or outside the DLF City, Gurgaon (Haryana) including the Belair Complex in which the Apartment allottee may be owning the said apartment. In such an eventuality the apartment allottee fully concurs and confirms that he /she shall have no objection to such arrangement for generating and/or supply of power but also gives complete consent to such arrangement including it being an exclusive source of power supply to the said complexes or to the Apartment Allottee directly and has noted the possibility of its being to the exclusion of power supply from DHBVN/State electricity Boards (SEBs)/any other source. The apartment allottee further agrees that this arrangement could be provided within the various complexes of DLF City, Gurgaon by the Company or its agents directly or through the respective Association of apartment owners. It is further agreed by the apartment allottee that the company or its agents shall have the sole right to select the site, capacity and type of the power generating and supply equipment/plant as 54 may be considered necessary by the Company or its agents in their sole discretion from time to time. It is also understood that the said equipment/plant may be located anywhere in or around DLF City, Gurgaon including within or nearby the said Complex within which the Apartment allottee may be owning the apartment.
It is further agreed and confirmed by the Apartment allottee that the company or its agents shall have the right to charge tariff for providing/supplying the power at the rate as may be fixed from time to time by the Company which may or may not be limited to the rate then charged by the DHBVN/State Electricity Boards. The apartment allottee agrees and confirms that he/she shall pay the tariff to the company or its agents directly or through the Association of apartment allottee respectively for consuming the power so supplied but shall have no ownership right, title or interest in the equipment so installed by the Company or its agents.
The apartment allottee also confirms that he/she had understood that such power generating and/or supplying equipment may during its operation inconvenience the Apartment allottee and the apartment allottee has no objection to the same. The obligation to pay the tariff shall remain with the Apartment Allottee to be paid forthwith as per demand. The Apartment Allottee further specifically agrees not to raise any dispute with regard to such arrangement either with regard to installation of power generating equipment or payment of tariff at any time whatsoever during the period of Apartment Allottee's ownership of the said Apartment. This clause shall survive the conveyance of the said apartment or any subsequent sale/resale or conveyancing thereof.
2 Payment for taxes, wealth-tax, cesses by Payment for taxes on land, wealth-tax,
Apartment Allottee cesses by Allottee
55
That the Apartment Allottee agrees to pay The Allottee agrees to pay directly, or if paid
directly or if paid by the Company then by the Company, then reimburse to the
reimburse to the Company on demand, Company on demand, Govt. rates, property
Govt. rates, property taxes, Wealth Tax, taxes, wealth tax, taxes of all and any kind
taxes of all and any kind by whatever by whatever name called, whether levied or
name called, whether levied or leviable leviable now or in future on the GHS Belaire
now or in future on the said Complex /or building(s) constructed on the Said Land
and/or building(s) constructed on the said or the Apartment, as the case may be, as
Portion of Land or the said Apartment, as assessable/applicable from the date of
the case may be, as application of the Allottee and the same
assessable/applicable from the date of shall be borne and paid by the Allottee in
application of the Apartment Allottee and proportion to the Super Area of the said
the same shall be borne and paid by the Apartment to the Super Area of all the
Apartment Allottee in proportion to the Apartments in the GHS Belaire. Further the
Super Area of the said Apartment to the Allottee shall be liable to pay from the date
super area of all the Apartments in the of his/her application house-tax/property-
said building/said Complex as determined tax, fire fighting tax or any other fee or cess
by the Company. Further the Apartment as and when levied by a local body or
Allottee shall be liable to pay from the authority and so long as the Apartment of
date of his/her application house- the Allottee is not separately assessed to
tax/property-tax, fire fighting tax or any such taxes, fee or cess, the same shall be
other Fee or Cess as and when levied by paid by the Allottee in proportion to the
a Local Body or Authority and so long as Super Area of the said Apartment to the
the said Apartment of the Apartment total Super Area of all the Apartments in the
Allottee is not separately assessed to GHS Belaire.
such Taxes, Fee or Cess, the same shall
be paid by the Apartment Allottee in
proportion to the super area of the said
Apartment to the total super area of all
the Apartments in the said Building/said
Complex as determined by the Company.
These taxes, fees, cesses etc shall be
paid by the Apartment Allottee
irrespective of the fact whether the
maintenance is carried out by the
Company or its Nominee or any other
Body or Association of all or some of the
Apartment owners.
3 Amount paid by Apartment Allottee with Amount paid by Apartment Allottee with
Application Application
That the Apartment Allottee has paid a That the Allottee has paid a sum of Rs []
sum of Rs......(Rupees.....only) being part (Rupees [] only) being part payment towards
payment towards the cost of the said the cost of the Apartment at the time of
Apartment at the time of application the application the receipt of which the
receipt of which the Company doth Company doth hereby acknowledge and the
hereby acknowledge and the Apartment Allottee shall and doth hereby agree to pay
Allottee shall and doth hereby agree to the remaining price of the Apartment as
pay the remaining price of the Apartment prescribed in schedule of payments
as prescribed in Schedule of Payments (Annexure []) attached with this Agreement
56
(Annexure-III) attached with this along with all other charges, securities etc.
Agreement along with all other charges, as may be demanded by the Company
securities etc. as may be demanded by within the time and in the manner specified
the Company within the time and in the therein.
manner specified therein.
4 Earnest Money Earnest Money
The Apartment Allottee has entered into The Allottee has entered into this
this Agreement on the condition that out Agreement on the condition that, out of the
of the amount(s) paid/payable by him/her amount(s) paid/payable by him/her for the
for the said Apartment and the parking Apartment alongwith the parking spaces
spaces allotteed to him/her, the Company allotted to him/her, the Company shall treat
shall treat 10% of the sale price of the 10% of the sale price of the Apartment
Apartment amounting to Rs.---------- amounting to Rs.[] (Rupees [] as earnest
(Rupees ........)as earnest money to money to ensure fulfillment, by the Allottee,
ensure fulfillment, by the Apartment of the terms and conditions as contained in
allottee, of the terms and conditions as this Agreement.
contained in the application and this
agreement. The term sale price shall Earnest money shall not include any other
include basic sale price, preferential charges such as Preferential Locations
location charges, sale price of car parking Charges, brokerage charges etc. However, space (s), due or to be paid which form the earnest money shall be liable for part of the Schedule of Payments at forfeiture in case any of the following Annexure III. contingencies occur:
The Apartment Allottee hereby authorizes (i) In case the Allottee terminates the the company to forfeit out of the amounts present agreement without any default or paid/payable by him/her, the earnest breach by the Company. money as aforementioned together with any interest paid, due or payable along In case, however the Allottee has with an any other amount of a non terminated the agreement on the basis of refundable nature including brokerage default or breach by the Company, then the paid by the Company to the brokers in Company shall not have the right to forfeit case of booking is done through a broker any amounts deposited by the Allottee as in the event of the failure of the the same shall be recoverable only on the Apartment allottee to perform his/her determination of the issues between the obligations or fulfill all the terms and Parties by the Arbitrator. The Company shall conditions set out in the application and / be liable to refund the entire amount or this Agreement executed by the deposited in the first instance, with the Apartment allottee including but not Allottee being required to furnish security for limited to the concurrence of any event of an amount of the earnest money, with an default as described in Clause (12) of this undertaking that he shall be liable to pay Agreement or in the event of failure of the interest @ []% per annum on the earnest Apartment Allottee to sign and return this money so retained in case he fails to prove Agreement in its original form to the the breach. Company within thirty (30) days from the date of its dispatch by the Company. (ii) In case the Allottee fails to make payments for 3 consecutive stages of The Apartment allottee agrees that the construction, despite having been issued conditions for forfeiture of earnest money notice in that regard.57
shall remain valid and effective till the execution and registration of the The Parties agree that the conditions for conveyance deed for the said Apartment forfeiture of earnest money shall remain and that the Apartment Allottee hereby valid and effective till the execution and authorises the Company to effect such registration of the conveyance deed for the forfeiture without any notice to the Apartment. Apartment Allottee and the Apartment allottee has agreed to this condition to indicate his/her commitment to faithfully abide by all the terms and conditions contained in his/her application and this Agreement.
5 Mode of Payment Mode of Payment That the Apartment Allottee shall make all Subject to the Company abiding by the payments in time in terms of Schedule of construction milestones, the Allottee shall Payments as given in Annexure-III make all payments, on demand by the annexed to this Agreement and as may Company, within the stipulated time as be demanded by the Company from time mentioned In the schedule of payments as to time and without any reminders from annexed to this Agreement through A/ c the Company through A/c Payee Payee cheque/demand draft in favour of Cheque(s)/Demand Draft(s) in favour of 'MIs [] payable at New Delhi/Delhi.
M/s DLF Limited' payable at New Delhi/Delhi.
6 Compliance of Laws relating to Compliance of Laws relating to remittances remittances The Allottee, if resident outside India, shall The Apartment Allottee, if resident solely be responsible for complying with the outside India, shall solely be responsible necessary formalities as laid down in for complying with the necessary Foreign Exchange Management Act, 1999, formalities as laid down in Foreign Reserve Bank of India Act and Rules made Exchange Management Act, 1999, thereunder or any statutory amendment(s) Reserve Bank of India Act and Rules modification(s) made thereof and all other made thereunder or any statutory applicable laws including that of remittance amendment(s) modification(s) made of payment acquisition/sale/transfer of thereof and all other applicable laws immovable properties in India etc. and including that of remittance of payment provide the company with such permission, acquisition/sale/transfer of immovable approvals which would enable the Company properties in India etc. and provide the to fulfill its obligations under this Agreement. company with such permission, approvals Any refund, transfer of security, if provided which would enable the Company to fulfill in terms of the Agreement shall be made in its obligations under this Agreement. Any accordance with the provisions of Foreign refund, transfer of security, if provided in Exchange Management Act, 1999 or terms of the Agreement shall be made in statutory enactments or amendments accordance with the provisions of Foreign thereof and the Rules and Regulations of Exchange Management Act, 1999 or the Reserve Bank of India or any other statutory enactments or amendments applicable law . The Allottee understand and thereof and the Rules and Regulations of agrees that in the event of any failure on the Reserve Bank of India or any other his/her part to comply with the applicable 58 applicable law . The Apartment Allottee guidelines issued by the Reserve Bank of understand and agrees that in the event India, he/she shall be liable for any action of any failure on his/her part to comply under the Foreign Exchange Management with the applicable guidelines issued by Act, 1999 as amended from time to time. the Reserve Bank of India, he/she shall The company accepts no responsibility in be liable for any action under the Foreign this regard. The Allottee shall keep the Exchange Management Act, 1999 as Company full indemnified and harmless in amended from time to time. The company this regard. Whenever there is any change accepts no responsibility in this regard. in the residential status of the Allottee The Apartment Allottee shall keep the subsequent to the signing of this Company full indemnified and harmless in Agreement, it shall be the sole responsibility this regard. Whenever there is any of the Allottee to intimate the same in writing change in the residential status or the to the Company immediately and comply Apartment Allottee subsequent to the with necessary formalities if any under the signing of this Agreement it shall be the applicable laws. The Company shall not be sole responsibility of the Apartment responsible towards any third party making Allottee to intimate the same in writing to payment/remittances on behalf of any the Company immediately and comply Allottee and such third party shall not have with necessary formalities if any under any right in the application/allotment of the the applicable laws. The Company shall said apartment applied for herein in any way not be responsible towards any third party and the Company shall be issuing the making payment/remittances on behalf of payment receipts in favour of the Allottee any Apartment Allottee and such third only.
party shall not have any right in the
application/allotment of the said
apartment applied for herein in any way
and the Company shall be issuing the
payment receipts in favour of the
Apartment Allottee only.
7 Adjustment/Appropriation of Payments Adjustment/Appropriation of Payments
The Apartment Allottee authorises the The Allottee authorizes the Company to
Company to adjust/appropriate all adjust/appropriate all payments made by
payments made by him/her under any him/her under any head(s) of dues against
head(s) of dues against outstanding, if lawful outstanding, if any, in his/her name as
any, in his/her name as the Company the Company may in its sole discretion
may in its sole discretion deem fit and the deem fit and the Allottee undertakes not to Apartment Allottee undertakes not to object/demand/direct the Company to adjust object/demand/direct the Company to his payments in any manner otherwise than adjust his payments in any manner as decided by the Company in its sole otherwise than as decided by the discretion Company in its sole discretion.
.
8 Time is Essence Time is Essence Time is the essence with respect to the Time is of essence for the Company as well Apartment Allottee's obligations to pay as the Allottee. The Company shall abide by the price of the said Apartment in the time schedule for completing the accordance with the Schedule of construction, creating the facilities and Payments as given in Annexure III along handing over the Apartment to the Allottee 59 with other payments such as applicable after receiving the occupation certificate. stamp duty, registration fee, interest Similarly, the Allottee shall make timely bearing maintenance security and other payments of the installment and other dues charges, deposits stipulated under this payable by him/her and meeting the other Agreement to be paid on or before due obligations under the Agreement subject to date or as and when demanded by the the simultaneous completion of construction Company as the case may be and also to by the Company. It is clarified that the perform or observe all the other Allottee shall be liable to make the payment obligations of the Apartment Allottee of the installment only after the under this Agreement. It is clearly agreed corresponding construction stage being and understood by the Apartment Allottee completed and the cogent and independent that it shall not be obligatory on the part evidence of actual work and progress done of the Company to send demand being provided along with certificate of proof notices/reminders regarding the from an independent registered architect payments to be made by the Apartment about the actual progress of the building Allottee as per Schedule of Payments (with the actual site photographs. (Annexure III) or obligations to be performed by Apartment Allottee. In case the Allottee fails and/or neglects to However, in case of any default / delay in make timely payments of the installments the payments b the Appartment Allottees, and defaults in payment for three the Company may take such actions as consecutive installments, the Company shall may be permitted within the scope of this have the right to cancel the Apartment and agreement. forfeit 10% of the sale consideration as provided in Cause 4 and refund the remaining amount to the Allottee without interest within 30 days from the date of termination.
9.1 Construction of the said Building/said Construction of the Building/ Apartment/said Complex Apartment/GHS Belaire The Apartment allottee has seen and The Allottee has seen and accepted the accepted the Schedule of Payments, (as Schedule of Payments, (as given in given in Annexure III) tentative typical Annexure []), apartment and floor plans, Apartment plans/tentative typical floor layout plans as represented by the plan/tentative layout plan(s)/tentative Company to have been approved by the parking plan (as given in Annexure-VI) Government agencies (as given in tentative specifications (as given in Annexure []) and the specifications of the Annexure-V ) which are subject to change apartment (as given in Annexure []). The at the sole option and discretion of the Company will construct the said GHS Company and the Apartment Allottee has Belaire in accordance with the said lay out accepted and consented to this condition. plans, floor plans and specifications. Subject The construction of the said Building/said to Clause 1.6, the Company undertakes to Complex and the said Apartment strictly abide by such plans approved by the including the materials, equipments, Government agencies and as shown in the plants and fixtures to be installed therein Annexure(s) attached herewith and shall shall substantially be in accordance with also strictly abide by the bye-laws, FAR and the specifications as given in Annexure V density norms and provisions prescribed by subject to the right of the Company to the Haryana Development and Regulation amend the specifications in order to of Urban Area Act 1975, Haryana 60 substitute materials, plans and equipment Development and Regulation of Urban Area or fixtures of similar quality or subject to Rules 1976 and the Punjab Schedule Roads any direction from competent authority or and Controlled Areas (Restriction of due to force majure conditions or reasons Unregulated Development) Act 1963 and beyond control of the company and the the Apartment Act as amended from time to Apartment allottee hereby agrees to this time and shall not have an option to make condition. The Apartment Allottee has any variation/alteration/ modification in such further authorised the Company to carry plans or Annexures and breach of this term out, on his/her behalf, such additions, by the Company shall constitute a material alterations, deletions and modifications in breach of the Agreement. the building plans, floor plans, Apartment plans, change in specification etc. including the number of Apartments/floors as the company may consider necessary or as directed by any competent authority while sanctioning the building/layout plans or at any time thereafter till the grant of an occupation certification. The Company may increase the proposed number of floors in the said building and shall be seeking necessary approvals for the same. The Apartment Allottee hereby agrees that the Company is fully entitled to increase the number of floors in the said building and/or the height of the said building and the apartment allottee has no objection to the same. In case the Company is able to obtain the necessary approvals for increasing the number of floors and /or increase the height of the said building then in such case, the company shall inform the Apartment allottee about whether the Apartment allottee wishes to move to a higher floor.
If the Apartment Allottee conveys his desire to shift to a higher floor, the same may be permitted by the Company at its sole discretion. The Apartment allottee shall not claim any reduction in price of his Apartment due to increase in the number of floors in the said building.
Accordingly, his application and this Agreement shall stand modified to this effect. The intimation of option to shift to a higher floor will be given to all the Apartment Allottees by way of a written notice. The issuance of the occupation certificate for the building/complex shall be the conclusive evidence (issue for the said building or for the said complex as 61 the case may be) that the building/complex and the said Apartment have been fully completed in accordance with the plans and specifications as annexed to this Agreement or any modifications thereof and the Apartment allottee agrees that upon issue of occupation certificate he/she shall not make any claim against the Company in respect of any item of work in the said apartment which may be alleged not to have been carried out or completed or in respect of any design, specifications, building materials used or for any other reason whatsoever. A copy of the tentative typical Apartment plans, tentative typical floor plan, tentative parking plan is attached to this Agreement as Annexure VI.
9.2 Major Alteration/Modification To be deleted
In case of any major
alteration/modifications resulting in +/- 10% change in the super area of the said Apartment or material/substantial change, in the sole opinion of and as determined by the Company, in the specifications of the materials to be used in the said Building/said Apartment any time prior to and upon the grant of occupation certificate, the Company shall intimate the Apartment Allottee in writing the changes thereof and the resultant change, if any, in the price of the said Apartment to be paid by him/her and the apartment allottee agrees to deliver to the company his/her written consent or objections to the changes within thirty (30) days from the date of dispatch by the company of such notice failing which the apartment allottee shall be deemed to have given his/her full and unconditional consent to all such alterations/modifications and for payments, if any to be paid in consequence thereof. It the written notice of Apartment Allottee is received by the company within thirty (30) days of intimation in writing by the Company indicating his/her non-consent/objections to such alterations/modifications as 62 intimated by the company to the Apartment allottee then in such case alone the Company may at its sole option and discretion decide to cancel this agreement without further notice and in such event the company shall refund the entire money received from the Apartment Allottee with interest @9% per annum within ninety (90) days from the date of intimation received by the Company from the Apartment allottee and upon dispatch of such refund by registered post, the company shall be released and discharged from all its obligations and liabilities under this Agreement and the Apartment allottee agrees and authorises the company to resell or deal with the said apartment and the parking space thereafter in any manner whatsoever at the company's sole discretion.
10.1 Schedule for Possession of the said Schedule for Possession of the said
Apartment Apartment
The Company based on its present plans The Company agrees and understands that
and estimates and subject to all just timely delivery of possession is the essence
exceptions, contemplates to complete of the Agreement. The Company, based on
construction of the said Building/said the approved plans and estimates, assures
Apartment within a period of three (03) to hand over possession of the Said Land/
years from the date of execution of this Apartment within a period of 3 years from
Agreement unless there shall be delay or the date of execution of the Agreement
there shall be failure due to reasons entered into by the Company for the present
mentioned in Clauses (11.1), (11.2), project (GHS Belaire) unless there is delay
(11.3) and Clause (39) or due to failure of or failure due to Force Majeure conditions or Apartment Allottee(s) to pay in time the circumstances beyond the control of the price of the said Apartment alongwith Company. In case there are any delays, the other charges and dues in accordance Company shall keep the Allottee fully with the schedule of payments given in informed and communicate new estimated Annexure III or as per the demands date of possession. raised by the Company from time to time or any failure on the part of the Apartment If, however, the completion of the Building Allottee(s) to abide by all or any of the is delayed due to the Force Majeure terms or conditions of this Agreement. conditions then the Allottee agrees that the Company shall be entitled to the extension of time for delivery of possession of the Apartment, provided that such Force Majeure conditions is not of a nature which make it impossible for the contract to be implemented.
63The Allottee agrees and confirms that, in the event it becomes impossible for the Company to implement the project due to Force Majeure conditions, then this allotment shall stand terminated as if it has been terminated with mutual consent. Then the Company shall refund to the Allottee the entire amount received by the Company from the allotment, alongwith interest @ []%, within 60 days from the date of happening of the Force Majeure conditions. After refund of the money paid by the Allottee, Allottee agrees that he/ she shall not have any rights, claims etc. against the Company and that the Company shall be released and discharged from all its obligations and liabilities under this Agreement.
10.2 Procedure for taking possession Procedure for taking possession The Company, upon obtaining certificate The Company, upon obtaining certificate of for occupation & use from the competent occupation and use from the competent authority(ies) shall offer in writing to the authority shall offer in writing the possession Apartment Allottee to take over, occupy of the Apartment, to the Allottee in terms of and use the said Apartment in terms of this Agreement to be taken within 30 days this Agreement within thirty (30) days from the date of issue of such notice and the from the date of issue of such notice and Company shall give possession of the the Company shall hand over the said Apartment to the Allottee. The Company Apartment to the Apartment Allottee for agrees and undertakes to indemnify the his/her occupation and use subject to the Allottee in case of failure of fulfillment of any Apartment Allottee having complied with of the provisions, formalities, documentation all the terms and conditions of this on part of the Company. The Allottee Agreement and is not in default under any agree(s) to pay the maintenance charges as of the provisions of this Agreement and determined by the Company/RWA as the has complied with all provisions, case may be. formalities, documentation etc. The Apartment Allottee shall be liable to pay the levy of maintenance charges from the date of grant of the occupation certificate more fully described in Clause 14.4 mentioned hereinafter irrespective of the Apartment Allottee taking over possession of the said Apartment at a later 64 10.3 Failure of Apartment Allottee to take Failure of Apartment Allottee to take Possession Possession Upon receiving a written intimation from Upon receiving a written intimation from the the Company in terms of Clause (10.2) Company as per Clause 10.2, the Allottee above, the Apartment Allottee shall within shall, within the time stipulated by the the time stipulated by the Company in the Company in the notice, take possession of notice, take over the said Apartment from the Apartment from the Company by the Company by executing necessary executing necessary indemnities, indemnities, Undertakings, Tripartite undertakings and such other documentation Maintenance Agreement and such other as prescribed in this Agreement, and the documentation as the Company may Company shall give possession of the prescribe and the Company shall after Apartment along with Common Areas and satisfactory execution of such documents Facilities to the Allottee. In case the Allottee and payment by the Apartment Allottee of fails to take possession, such Allottee shall all the dues under this Agreement permit still be liable to pay maintenance charges as the Apartment Allottee to occupy and use prescribes in this Agreement and raised the said Apartment. If the Apartment from time to time by the Company/RWA. Allottee fails to take over the Apartment as aforesaid within the time limit Further it is agreed by the Allottee that in the prescribed by the Company in its notice, event of his/her failure to take over the said then the said Apartment shall lie at the Apartment in the manner as aforesaid, then risk and cost of the Apartment Allottee the Company shall have the option to cancel and the Company shall have no liability or this Agreement. concern thereof. Further it is agreed by the Apartment Allottee that in the event of However, before exercising the option of his/her failure to take over the said cancelling the Agreement, the Company Apartment in the manner as aforesaid, shall condone the delay by the Allottee in then the company shall have the option to taking over the Apartment on the condition cancel this Agreement and avail the that the Allottee shall be liable to pay to the remedies as stipulated in Clause (12) of Company appropriate charges per month for this Agreement or the Company may, taking delayed possession of the Apartment without prejudice to its rights under any of for the entire period of delay. If the Allottee the clauses of this Agreement and at its fails to meet the above mentioned condition sole discretion, decide to condone the within 3 months from the date of the receipt delay by the Apartment Allottee in taking of the written intimation from the Company over the said Apartment in the manner as to take over possession, then the Company stated in this clause on the condition that may exercise the option of cancelling the the Apartment Allottee shall be liable to Agreement. pay to the Company charges @Rs.5/- per sq. ft. of the super area per month for If the Company elects to cancel this taking delayed possession of the Agreement, the Company shall have the Apartment for the entire period of delay right to retain the earnest money as and to withhold conveyance or handing specified in this Agreement and refund the over for occupation and use of the said balance amount to the allottee without Apartment till the entire charges/penalty interest within 30 days. with applicable over due interest., if any, at the rates as prescribed in this agreement are fully paid. It is made clear and the Apartment Allottee agrees that 65 the charges/penalty as stipulated in this clause shall be a distinct charge and payable till such time the said Apartment is put in use by self or on lease and is not related to (but in addition to) maintenance or any other charges as provided in this Agreement. Further the Apartment Allottee agrees that in the event of his/her failure to take over the said Apartment within the time stipulated by the Company in its notice, h/she shall have no right or claim in respect of any item of work in the said Apartment which he/she may allege not to have been carried out or completed or in respect of any design specifications, building materials or any other reason whatsoever and that he/she shall be deemed to have been fully satisfied in all respects concerning construction and all other work relating to the said Apartment/said Building/said Complex.
11.1 Delay due to reasons beyond the control To be deleted.
of the Company If, however, the completion of the said Building/said Complex is delayed by reason of non-availability of steel and/or cement or other building materials, or water supply or electric power or slow down, strike or due to dispute with the construction agency(ies) employed by the company, lock-out or civil commotion, by reason of war or enemy action or terrorist action or earthquake or any act of God or if non-delivery for possession is as a result of any Act, Notice, Order, Rule or Notification of the government and /or any other :public or competent authority or due to delay in grant of completion/occupation certificate by any competent authority or if competent authority(ies) refuses, delays, withholds, denies the grant of necessary approvals for the said Apartment/said Building/said 66 plot for any amenities, facilities intended to be create therein or if any matters, issues relating to such approvals, permissions, notices, notifications by the competent authority(ies) become subject matter of any suit/writ before a competent court or for any other reasons beyond the control of the Company then the Apartment allottee agrees that the company shall be entitled to the extension of time for delivery of possession of the said Apartment. The company as a result of such a contingency arising reserves the right to alter or vary the terms and conditions of this Agreement or if the circumstances beyond the control of the company so warrant, the company may suspend the scheme for such period as it may consider expedient and the Apartment allottee agrees not to claim compensation of any nature whatsoever (including the compensation stipulated in Clause 11.4) of this Agreement during the period of suspension of the Scheme.
The Apartment allottee confirms that he/she has authorised the company to treat this Apartment Buyers' Agreement executed by him/her as cancelled in consequence of the company abandoning the project the Apartment allottee confirms that he/she has given irrevocable authority to the Company that upon such cancellation/abandonment and subject to A0partment allottee not being in default under this Agreement and to refund by registered post, the amounts attributable to the said Apartment (after deducting interest on delayed payments, and interest paid, due or payable, any amount of non-refundable nature) that have been received from the Apartment allottee by the company without any interest or compensation of whatsoever nature and upon dispatch of such refund by registered post, the Apartment allottee agrees that he/she shall not have any rights, claims etc. against the Company and that the company shall be released 67 and discharged from all its obligations and liabilities under this Agreement.
11.2 Failure to deliver possession due to Failure to deliver possession due to Government Rules, Orders, Notifications Government Rules, Orders, Notifications etc etc. If the Company is unable to construct/ That if as a result of any law that may be continue or complete the construction of the passed by any legislature or Rule, GHS Belaire due to any governmental/ Regulation or order or Notification that regulatory authority's action provided the may be made and /or issued by the same is not due to the fault of the Company, Government or any other Authority then the Company may challenge the same including a Municipal Authority, the by moving the appropriate courts, tribunal(s) Company is unable to complete the and / or relevant authority. In such a constructions of the said Apartment/said situation, the amounts paid by the Allottee Building./said Complex, then the shall continue to remain with the Company. Company may, if so advised, though not However, in case the Allottee chooses to bound to do so, at its sole discretion terminate this Agreement and asks for the challenge the validity, applicability and/or refund of all the money paid to the efficacy of such Legislation, Rule, Order Company, the Company shall refund the or Notification by moving the appropriate entire amount paid by the Allottee to the Courts, Tribunal(s) and/or Authority. In Company within 30 days from the date of such a situation, the money(ies) paid by such intimation by the Allottee and the Apartment Allottee in pursuance of thereafter the Allottee shall be left with no this Agreement, shall continue to remain other right or claim of whatsoever nature with the Company and the Apartment against the Company under or in relation to Allottee agrees not to move for or to this Agreement. Alternatively, the Allottee obtain specific performance of the terms may continue with the Agreement and in of this Agreement, it being specifically such a situation, this Agreement shall agreed that this Agreement shall remain remain in abeyance till final determination in abeyance till final determination by the by the court(s) / tribunal(s) / relevant Court(s)/Tribunal(s)/Authority(ies). authority (les). However the Allottee may, if However the Apartment Allottee may, if he/she so desires, become a party along he/she so desires, become a party along with the Company / RWA in such litigation to with the Company in such litigation to protect Allottee's rights arising under this protect Apartment Allottee's rights arising Agreement. In the event of Company under this Agreement. In the event of the succeeding in its challenge to the impugned Company succeeding in its challenge to legislation or rule, regulation, order or the impugned legislation or Rule, notification as the case may be, it is hereby Regulation, Order or Notification as the agreed that this Agreement shall stand case may be, it is hereby agreed that this revived and the Company and the Allottee Agreement shall stand revived and the shall be liable to fulfill all obligations as Apartment Allottee shall be liable to fulfill provided in this Agreement. During the all obligations as provided in this period the Agreement is in abeyance, the Agreement. It is further agreed that in the Company shall deposit the amount paid by event of the aforesaid challenge of the the Allottees (who choose to continue with Company to the impugned the agreement) in a Bank and the interest Legislation/Order/Rule/Regulation/Notific accrued on the said amount shall be divided ation not succeeding and the said between the Allottees on pro rata basis. legislation/order/rule/regulation becoming final, absolute and binding, the Company 68 will, subject to provisions of law/court order, refund to the Apartment Allottee, the amounts attributable to the said Apartment (after deducting interest on delayed payments, and interest paid, due or payable, any amount of non-refundable nature) that have been received from the Apartment Allottee by the Company without any interest or compensation of whatsoever nature within such period and in such manner as may be decided by the Company and the Apartment Allottee agrees to accept the Company's decision, in this regard to be final and binding.
Save as otherwise provided herein, the Apartment Allottee shall not have any other right or claim of whatsoever nature against the Company under or in relation to this Agreement.
11.3 Failure to deliver Possession by the To be deleted.
company: remedy to Apartment Allottee If for any reasons other than those given in Clauses (11.1.), (11.2) supra and Clause (39), the company shall be unable to or fails to deliver possession of the said Apartment to the Apartment Allotttee within three (03) years from the date of execution of this Agreement or within any extended period or periods as envisaged under this Agreement, the in such case, the Apartment Allottee shall be entitled to give notice to the Company, within ninety (90) days from the expiry of said period of three (03) years or such extended periods, as the case may be, for terminating this Agreement. In that event the Company shall be at liberty to sell and/or dispose of the said Apartment and the allotted parking space to any other party at such price and upon such terms and conditions as the Company may deem fit without accounting for the sale proceeds thereof to the Apartment Allottee. Thereafter the Company shall within ninety (90) days from the date of full realisation of the sale price after sale of said Apartment and parking space refund to the Apartment Allottee, without any interest, the amounts paid by him/her 69 in respect of the said Apartment and the parking space without deduction of earnest money but after deduction of brokerage paid by the Company to the broker/ sales organiser in case the booking is done through a broker/ sales organiser. The Apartment Allottee agrees that he / she shall have no other claim against the Company in respect of the said Apartment and parking space under this Agreement. If the Apartment Allottee fails to exercise his/her right of termination within the time limit as aforestated, by delivery to the Company of a written notice acknowledged by the Company in this regard then he/she shall not be entitled to terminate this Agreement thereafter and he/she shall continue to be bound by the provisions of the this Agreement.
11.4 Failure to deliver Possession : Remedy to To be deleted.
the Company The Apartment Allottee agrees that in consequence of the Company abandoning the Scheme or becoming unable to give possession within three (03) years from the date of execution of this Agreement or such extended periods as permitted under this Agreement, the Company shall be entitled to terminate this Agreement whereupon the Company's liability shall be limited to the refund of the amounts paid by the Apartment Allottee with simple interest @ 9% per annum for the period such amounts were lying with the Company and to pay no other compensation whatsoever.
However, the Company may, at its sole option and discretion, decide not to terminate this Agreement in which event the Company agrees to pay only to the Apartment Allottee(s) and not to any one else and only in cases other than those provided in Clause (11.1.), (11.2), (11.3) and Clause (39) and subject to the Apartment Allottee not being in default under any term of this Agreement, 70 compensation @ Rs.5/- per sq. ft. of the super area of the said Apartment per month for the period of such delay beyond three (03) years or such extended periods as permitted under this Agreement. The adjustment of such compensation shall be done only at the time of conveyancing the said Apartment to the Apartment Allottee first named in this Agreement and not earlier.
12 Events of defaults and consequences Events of defaults and consequences It is specifically made clear to the Subject to the Force Majeure clause, the apartment allottee that all defaults, Company shall be considered under a breaches and/or non-compliance of any condition of Default, if it fails to deliver on of the terms and conditions of this any of the following milestones: agreement shall be deemed to be events of defaults liable for consequences (i) Company delays the construction stipulated herein. With a view to acquaint and misses two consecutive the Apartment Allottee, some of the construction linked milestones indicative events of defaults are and their associated time lines as mentioned below which are merely defined in Annexure []; or illustrative and are not exhaustive. (ii) Company changes the specifications of the GHS Belaire Failure to make payments within the time in a major manner without the as stipulated in the Schedule of prior written consent of the Payments as given in Annexure III and Allottees; or failure to pay the stamp duty, legal, (iii) Company fails to provide ready to registration, any incidental charges, any move in possession of the increases in security including but not apartment to the Allottee within limited to interest bearing maintenance the time period specified. For the security as demanded by the Company, purpose of this clause, 'ready to any other charges, deposits for bulk move in possession' shall mean supply of electrical energy, taxes etc. as that the apartment shall be in a may be notified by the Company to the habitable condition which is Apartment Allottee under the terms of this complete in all respects. Agreement, and all other defaults of similar nature. In case of Default by Company under the conditions listed above, Allottee is entitled to Failure to perform and observe any or all the following:
of the Apartment Allottee's obligations including those contained in {12(i)] above (i) Stop making any more payments as set forth in this Agreement or if the to Company as demanded by the Apartment Allottee fails to execute any Company. If the Allottee stops other making payments, the Company deed/document/Undertakings/indemnities shall correct the situation by etc. or to perform any other obligation, if completing the construction any, set forth in any other Agreement with milestones and only thereafter the the Company in relation to the said Allottee be required to make the Apartment. next payment without any penal 71 interest or Failure to take over the said Apartment (ii) The Allottee shall have the option for occupation and use within the time of terminating the Agreement in stipulated by the Company in its notice. which case the Company shall be immediately liable to refund the Failure to execute the conveyance deed entire money paid by the Allottee within the time stipulated by the Company under any head whatsoever in its notice. towards the purchase of the apartment, along with simple Failure to execute Tripartite Maintenance interest @ []% per annum within Agreement and/or to pay on or before its 30 days of receiving the due date the maintenance charges, termination notice.
maintenance security deposits,
deposits/charges for bulk supply of In case the Allottee issues a letter of
electrical energy or any increases in termination due to breach alleged by the
respect thereof, as demanded by the Allottee on any of the above grounds, the
Company, its nominee, other Body or Company shall terminate the Agreement in
Association of Apartment accordance with the condition stipulated
Owners/Association of Condominium, as above.
the case may be
In case the Company chooses to abandon
Failure, pursuant to a request by the the project, the Company shall be liable to Company, in terms of Clause (28) of this refund all the money paid by the Apartment Agreement to become a member of the Allottee along with interest of []% p.a. Association of Apartment Owners of the said Building/said Complex or to pay subscription charges etc. as may be required by the Company or Association of Apartment Owners, as the case may be.
Assignment of this Agreement or any interest of the Apartment Allottee in this Agreement without prior written consent of the Company.
Dishnour of any cheque(s) given by Apartment Allottee for any reason whatsoever.
Sale/transfer/disposal of/dealing with, in any manner, the parking space independent of the said Apartment or usage of the parking space other than for parking his / her vehicle.
Any other acts, deeds or things which the Apartment Allottee may commit, omit or fail to perform in terms of this Agreement, any other undertaking, 72 affidavit/agreement/indemnity etc. or as demanded by the Company which in the opinion of the Company amounts to an event of default and the Apartment Allottee agrees and confirms that the decision of the Company in this regard shall be final and binding on the Apartment Allottee.
Upon the occurrence of any one or more of event(s) of default under this Agreement including but not limited to those specified above, the Company may, at its sole discretion decide, by notice to the Apartment Allottee, to cancel this Agreement. If the Company elects to cancel this Agreement, the Apartment Allottee shall have thirty (30) days from the date of issue of notice of cancellation by the Company to rectify the default as specified in that notice. The Apartment Allottee agrees that if the default is not rectified within such thirty (30) days, this Agreement shall be liable to be cancelled/cancelled without any further notice and the Company shall have the right to retain, as and for liquidated damages, the entire earnest money as specified in this Agreement along with the interest on delayed payments, any interest paid, due or payable, any other amount of a non-refundable nature. The Apartment Allottee agrees that upon such cancellation of this Agreement, the Company will be released and discharged of all liabilities and obligations under this Agreement and the Apartment Allottee hereby authorises the Company that the said Apartment and the car parking space may be sold to any other party by the Company or dealt in any other manner as the Company may in its sole discretion deem fit as if this Agreement had never been executed and without accounting to the Apartment Allottee for any of the proceeds of such sale. In the event of the Company electing to cancel this Agreement, any amount which is found to be refundable to the Apartment Allottee over and above the amounts retained as 73 and for liquidated damages such as the earnest money, interest on delayed payments, any interest paid, due or payable, any other amount of non-
refundable nature, brokerage, if any, paid, etc. shall be refunded by the Company only after realizing such refundable amount on further sale/resale to any other party and shall be refunded without any interest or compensation of whatsoever nature and upon such cancellation and refund by the Company by registered post, the Apartment Allottee shall be left with no right title, interest, claim or lien over the said Apartment and the car parking space in any manner whatsoever.
13 Conveyance of the said Apartment Conveyance of the said Apartment The company, its associates companies, The Company, on receipt of complete its subsidiary companies as stated earlier justified and legal due amount under the shall prepare and execute along with the said Agreement from the Allottee, shall Apartment Allottee a conveyance deed to execute a conveyance deed and convey the convey the title of the said Apartment in title of the Apartment together with favour of Apartment Allottee but only after proportionate indivisible rights in the receiving full payment of the total price of Common Areas and Facilities in the GHs the Apartment and the parking space Belaire within 30 days from the date of filing allotted to him/her and payment of all of Deed of Declaration.
securities including interest bearing maintenance security, deposits and However, in case the Allottee fails to deposit charges for bulk supply of electrical the stamp duty, registration charges and all energy, interest, penal interest etc. on other incidental and legal expenses etc. so delayed installments stamp duty, demanded within the period mentioned in registration charges, incidental expenses the demand letter, the Allottee authorises for registration, legal expenses, for the Company to withhold registration of the registration and all other dues as set forth conveyance deed in his/her favour till full in this Agreement or as demanded by the and final settlement of all dues and stamp Company from time to time prior to the duty and registration charges to the execution of the Conveyance Deed. In Company is made by the Allottee. case the Apartment Allottee fails to deposit the stamp duty, registration The Allottee shall be solely responsible and charges and all other incidental and legal liable for compliance of the provisions of expenses etc. so demanded within the Indian Stamp Act, 1899 including any period mentioned in the demand letter, actions taken or deficiencies/penalties the Company shall be free to appropriate imposed by the competent authority(ies). the part of sale price paid by the Apartment Allottee towards the said charges and expenses and the Apartment Allottee shall forth with deposit the shortfall in the sale price so caused together with interest for the period of 74 delay in depositing the sale price so appropriated according to payment plan at the rate and in the manner mentioned in the Schedule of Payment (Annexure III) hereof. If the Apartment Allottee is in default of any of the payments as set forth in this Agreement then the Apartment Allottee authorises the Company to withhold registration of the Conveyance Deed in his/her favour till full and final settlement of all dues to the Company is made by the Apartment Allottee. The Apartment Allottee undertakes to execute conveyance Deed within the time stipulated by the Company in its written notice failing which the Apartment Allottee authorises the Company to cancel the allotment and terminate this Agreement in terms of Clause (12) of this Agreement and to forfeit out of the amounts paid by him/her the earnest money, delayed payment interest, any interest paid, due or payable, any other amount of a non-
refundable nature and to refund the balance amount without any interest in the manner prescribed in Clause (12) Supra. The Apartment Allottee shall be solely responsible and liable for compliance of the provisions of Indian Stamp Act, 1899 including any actions taken or deficiencies/penalties imposed by the competent authority(ies).
14.1* Maintenance of the said Building. said Maintenance of the said Building/Complex/ Complex/ said Apartment Apartment In order to provide necessary The Company shall be responsible to maintenance services, dedicated focus maintain the GHS Belaire till the receipt of and transparency in accounting and audit the occupation certificate or the date of procedures the Company shall, upon the allotment whichever is later. Cost of such completion of the said Building. said maintenance has been included in the Total Complex, hand over the maintenance of Price of the Apartment. the said Building/said Complex to the Association of Apartment Allottees or However, after the receipt of the occupation such other agency/ body/ company/ certificate or date of allotment whichever is association of condominium (hereafter later and until the time the GHS Belaire is referred to as "maintenance agency") as handed over to the RWA as provided for in the Company in its sole discretion may latter part of this clause, the Company shall deem fit. The Apartment Allottee if so be responsible for maintenance of the GHS directed by the Maintenance Agency/ the Belaire and for such purpose may charge 75 Company at its sole discretion hereby the Allottee reasonable maintenance agrees to execute Tripartite Maintenance charges. Agreement (draft given in Annexure VII to this Agreement) with the Maintenance As per the provisions of the Apartment Act, Agency or any other nominee/ agency or the Company shall handover the other body/ association of apartment maintenance of the GHS Belaire in all owners as may be appointed by the respects to a legally constituted association Company from time to time for the of apartment owners (hereinafter referred to maintenance and upkeep of the said as the "RWA") on the date of filing of the portion of land/ the said Building/ the said Deed of Declaration and shall give an Complex. This Agreement shall not be undertaking and affidavit to that effect in deemed to be executed till the draft favor of the RWA. Tripartite Maintenance Agreement is signed and returned with this agreement. The Allottee undertakes to pay maintenance The Apartment allottee further undertakes charges at a rate to be determined by the to abide by the terms and conditions of RWA for each Apartment and proportionate the Tripartite Maintenance Agreement undivided share in the Common Areas and and to pay promptly all the demands, Facilities. The entire Common Areas and bills, charges as may be raised by the Facilities (as listed in Annexure []) shall be maintenance agency from time to time. available for use and ownership by the The company reserves the right to Allottee subject to timely payment of change modify, amend, impose additional maintenance charges to the RWA. The conditions in the Tripartite Maintenance Allottees agree that in the event of failure to Agreement at the time of its final pay maintenance charges on or before due execution. The maintenance charges date as demanded by RWA, he/she shall shall become applicable/ payable from not have the right to use such Common the date the maintenance agency Areas and Facilities commences the maintenance of the said complex/said building after the company The Company shall be responsible for has received the Occupation paying the maintenance charges for the Certificate/the date of allotment unsold, unoccupied Apartments once the whichever is later. maintenance charges are made applicable by the RWA.
It is further clarified that the company may at its sole discretion hand over the In order to provide necessary maintenance maintenance of the said Building/said services till the GHS Belaire is handed over Complex to anybody/association of to the RWA, dedicated focus and apartment owners of the said transparency in accounting and audit Complex/said Building including but not procedures the Company shall hand over limited to any body/association of the maintenance of the Building/GHS condominium or the said complex, as the Belaire to such other agency/ body/ case may be at any time before/after the company (hereafter referred to as construction of the said Building/said "Maintenance Agency") as the Company in Complex is complete either for each its sole discretion may deem fit. The Allottee building or for the entire complex and the if so directed by the Maintenance Agency/ Apartment Allottee specifically confirms the Company at its sole discretion hereby his consent to this proposal. It is further agrees to execute Tripartite Maintenance specifically clarified that the Draft Agreement (draft given in Annexure [] to this Tripartite Maintenance Agreement, set Agreement) with the Maintenance Agency out at Annexure VII to this Agreement is or any other nominee/ agency or other body 76 merely an indicative agreement that is as may be appointed by the Company from proposed to be entered into with the time to time for the maintenance and Apartment Allottee for maintenance and upkeep of the GHS Belaire. This Agreement upkeep of the said Building/said shall not be deemed to be executed till the Complex, however, if at any time, after draft Tripartite Maintenance Agreement is having taken over the said Building/said signed and returned with this agreement. Complex, the said association of The Allottee further undertakes to abide by apartment owners, condominium of the terms and conditions of the Tripartite association decides to modify, alter, add, Maintenance Agreement and to pay delete any one or more of the terms and promptly all the demands, bills, charges as conditions of the Draft Tripartite may be raised by the Maintenance Agency Maintenance Agreement, the Apartment from time to time. The Company reserves Allottee shall not have any objection to the right to change modify, amend, impose the same and shall execute the Tripartite additional conditions in the Tripartite Maintenance Agreement as may be Maintenance Agreement at the time of its required by the said Maintenance Agency final execution. The maintenance charges or Association of Apartment Owners or shall become applicable/ payable from the Association of Condominium or its date the Maintenance Agency commences nominees or assigns. The payment of the maintenance of the said complex/said maintenance charges will be applicable building after the company has received the whether or not possession is taken by the occupation certificate/the date of allotment Apartment Allottee. whichever is later.
It is further specifically clarified that the Draft Tripartite Maintenance Agreement, set out at Annexure [] to this Agreement is merely an indicative agreement that is proposed to be entered into with the Allottee for maintenance and upkeep of the Building/said complex. However, if at any time, after having taken over the GHS Belaire, the RWA decides to modify, alter, add, delete any one or more of the terms and conditions of the Draft Tripartite Maintenance Agreement or cancel the Agreement, it may do so. The payment of maintenance charges will be applicable whether or not possession is taken by the Allottee.
14.2 Interest Bearing Maintenance Security Interest Bearing Maintenance Security
(IBMS) (IBMS)
In order to secure adequate provision of In order to secure adequate provision of the
the maintenance services and due maintenance services and due performance
performance of the Apartment Allottee in of the Allottee in paying promptly the
paying promptly the maintenance bills maintenance bills and other charges, the
and other charges as raised by the Allottee agrees to deposit, as per the
maintenance agency, the Apartment schedule of payment given in Annexure []
77
Allottee agrees to deposit, as per the and to always keep deposited with the
schedule of payment given in Annexure Company, an interest bearing maintenance
III and to always keep deposited with the security calculated at the rate of Rs. 100/-
Company/ maintenance agency an per square ft. of the Super Area of the said
interest bearing maintenance security Apartment carrying simple yearly interest as
calculated at the rate of Rs. 100/- per per the applicable bank rates on fixed
square ft. of the super area of the said deposits (applicable to one year fixed
Apartment carrying simple yearly interest deposit) accepted by State Bank of India at
as per the applicable bank rates on fixed the close of each financial year on 31st
deposits (applicable to one year fixed March calculated from the date of realization
deposit) accepted by State Bank of India of the amount by the Company. In case of
at the close of each financial year on 31st failure of the Allottee to pay the March calculated from the date of maintenance bills, other charges on or realization of the amount by the before the due date, the Allottee in addition Company. In case of failure of the to permitting the Company to deny him/ her Apartment Allottee to pay the the right to avail the maintenance services maintenance bills, other charges on or also authorises the Company to adjust in before the due date, the Apartment the first instance, the interest accrued on the Allottee in addition to permitting the interest bearing maintenance security Company to deny him/ her the right to against such defaults in the payment of avail the maintenance services also maintenance bills and in case such accrued authorises the Company to adjust in the interest falls short of the amount of the first instance, the interest accrued on the default, the Allottee further authorises the interest bearing maintenance security Company to adjust the principal amount of against such defaults in the payment of the interest bearing maintenance security maintenance bills and in case such against such defaults. If due to such accrued interest falls short of the amount adjustment in the principal amount, the of the default, the Apartment Allottee interest bearing maintenance security falls further authorises the Company to adjust below the agreed sum of Rs. 100/- per the principal amount of the interest square ft. of the Super Area of the bearing maintenance security against Apartment, then the Allottee hereby such defaults. If due to such adjustment undertakes to make good the resultant in the principal amount, the interest shortfall within 15 days of demand by the bearing maintenance security falls below Company. The Company reserves the right the agreed sum of Rs. 100/- per square ft. to increase the interest bearing of the super area of the said Apartment, maintenance security from time to time in then the Apartment Allottee hereby keeping with the increase in the cost of undertakes to make good the resultant maintenance services and the Allottee shortfall within fifteen days of demand by agrees to pay such increases within 15 days the Company. The Company reserves of demand by the Company. the right to increase the interest bearing maintenance security from time to time in If the Apartment Allottee fails to pay such keeping with the increase in the cost of increase in the interest bearing maintenance maintenance services and the Apartment security or to make good the shortfall as Allottee agrees to pay such increases aforesaid on or before its due date, then the within fifteen (15) days of demand by the Allottee authorizes the Company to charge Company. If the Apartment Allottee fails interest on the delayed payment. to pay such increase in the Interest It is made specifically clear and it is so Bearing Maintenance Security or to make agreed by and between the parties hereto good the shortfall as aforesaid on or that this interest bearing maintenance 78 before its due date, then the Apartment security will be transferred in favour of the Allottee authorises the Company to treat RWA as soon as the GHS Belaire is handed this Agreement as cancelled without any over to the RWA. notice to the Apartment Allottee and to recover the shortfall from the sale proceeds of the said Apartment and the parking space and to refund to the Apartment Allottee the balance of the money realized from such sale after deducting there from the entire earnest money, interest on delayed payments, any interest paid, due or payable and all other dues as set out in this Agreement.
It is made specifically clear and it is so agreed by and between the parties hereto that this part of the Agreement relating to interest bearing maintenance security as stipulated in this clause shall survive the conveyance of title in favour of the Apartment Allottee and the Company/ the maintenance agency shall have first charge/ lien on the said Apartment in respect of any such non-payment of shortfall/ increases as the case may be.
The Company shall at its sole discretion have the right to refund/ offer to refund at its sole option in full and final settlement of the IMBS, after adjusting therefrom any outstanding maintenance bills and/ or other outgoings of the Apartment Allottee at any time including upon execution of the conveyance deed and thereupon the Company shall stand completely absolved/ discharged of all its obligations and responsibilities concerning the IBMS, including but not limited to issues of repayment, refund and/ or claims, if any, of the Apartment Allottee on account of the same. In the alternative, the Company shall have the sole right to transfer to the Maintenance Agency the IBMS of the Apartment Allottee, after adjusting therefrom any outstanding maintenance bills and/ or other outgoings of the Apartment Allottee at any time including upon execution of the conveyance deed and thereupon the Company shall stand completely 79 absolved/ discharged of all its obligations and responsibilities concerning the IBMS including but not limited to issues of repayment, refund and/ or claims, if any, of the Apartment Allottee on account of the same and all clauses dealing/ concerning the IBMS of this Agreement and the Conveyance Deed as far as they are applicable to the Company shall cease to be valid and effective. It is hereby specifically agreed to by the Apartment Allottee that such transfer of IBMS shall not be linked in any manner whatsoever to the implementation of the haryana Apartment Ownership Act, 1983 by the Company for the said Complex.
That the Maintenance Agency/ Association of Apartment Owners, upon transfer of the IBMS or in case fresh IBMS is sought from the Apartment Allottee(s) as stipulated hereinabove, reserves the sole right to modify/ revise all or any of the terms of the IBMS, Tripertite Maintenance Agreement, including but not limited to the amount/ rate of IBMS etc. The Apartment Allottee has specifically agreed with the Company that the Allotment of the said apartment shall be subject to strict compliance of a Code of Conduct that may be determined by the Company/ Association of apartment allottees for occupation and use of the said apartment and such other conditions as the Company/Association of apartment allottees may deem fit from time to time which may include but not limited to usage of the said apartment, operation hours of various maintenance services, general compliances for occupants of the said apartment, regulation as to entry/ exit of the visitors, invitees, guests, security, interiors/ fitouts, etc. It is abundantly clarified that the Code of Conduct as may be specified by the Company/ Association of Apartment Allottees is always subject to change by the Company/ association of apartment allottees, 80 14.3 Payment of deposits & charges for bulk Payment of deposits & charges for bulk supply of Electrical Energy supply of Electrical Energy If the Company or the maintenance If the Company or the Maintenance Agency agency decides to apply for and decides to apply for and thereafter receives thereafter receives permission, from permission, from Dakshin Haryana Bijli Dakshin Haryana Bijli Vitran Nigam Ltd. Vitran Nigam Ltd. (DHBVN) or from any (DHBVN) or from any other body/ other body/ commission/ regulatory/ Commission/ Regulatory/ Licensing licensing authority constituted by the Authority constituted by the Government Government of Haryana for such purpose, of Haryana for such purpose, to receive to receive and distribute bulk supply of and distribute bulk supply of electrical electrical energy in the GHS Belaire, then energy in the said Complex, then the the Allottee undertakes to pay on demand to Apartment Allottee undertakes to pay on the Company proportionate share as demand to the Company proportionate determined by the Company of all deposits share as determined by the Company of and charges paid/ payable by the Company all deposits and charges paid/ payable by or the Maintenance Agency to DHBVN/ any the Company or the maintenance agency other body/ commission/ regulatory/ to DHBVN/ any other Body/ Commission/ licensing authority constituted by the Regulatory/ Licensing Authority Government of Haryana, failing which the constituted by the Government of same shall be treated as unpaid portion of Haryana, failing which the same shall be the Total Price payable by the Allottee for treated as unpaid portion of the total price the Apartment and the conveyance of the payable by the Apartment Allottee for the Apartment shall be withheld by the said Apartment and the conveyance of Company till full payment thereof is received the said Apartment shall be withheld by by the Company from the Allottee. the Company till full payment thereof is Proportionate share of cost incurred by the received by the Company from the company for creating infrastructure like HT Apartment Allottee. Proportionate share Feeder, EHT Sub station etc. shall also be of cost incurred by the company for payable by Allottee on demand. Further the creating infrastructure like HT Feeder, Allottee agrees that the Company shall EHT Sub station etc. shall also be entitled in terms of the Tripartite payable by apartment allottee on Maintenance Agreement (draft given in demand. Further the Apartment Allottee Annexure []) to withhold electricity supply to agrees that the Company shall entitled in the Apartment till full payment of such terms of the Tripartite Maintenance deposits and charges is received by the Agreement (draft given in Annexure VII) Company or the Maintenance Agency. to withhold electricity supply to the said Further in case of bulk supply of electrical Apartment till full payment of such energy, the Allottee agrees to abide by all deposits and charges is received by the the conditions of sanction of bulk supply, Company or the maintenance agency. including but not limited to waiver of the Further in case of bulk supply of electrical Allottee's rights to apply for individual/ direct energy, the Apartment Allottee agrees to electrical supply connection directly from abide by all the conditions of sanction of DHBVN or any other body responsible for bulk supply including but not limited to supply of electrical energy. An Undertaking waiver of the Apartment Allottee's rights in this regard executed by the Allottee is to apply for individual/ direct electrical attached as Annexure [] to this Agreement. supply connection directly from DHBVN The Allottees agrees to pay any increase in or any other body responsible for supply the deposits, charges for bulk supply, of 81 of electrical energy. An Undertaking in electrical energy as may be demanded by this regard executed by the Apartment the Company from time to time.
Allottee is attached as Annexure IX to this
Agreement. The Apartment Allottees
agrees to pay any increase in the
deposits, charges for bulk supply of
electrical energy as may be demanded by
the Company from time to time.
14.4 Fixation of total Maintenance Charges Fixation of total Maintenance Charges
The total maintenance charges as more The total maintenance charges, as more
elaborately described in the Tripartite elaborately described in the Tripartite
Maintenance Agreement (draft given in Maintenance Agreement (draft given in
Annexure VII) will be fixed by the Annexure []), will be fixed by the
maintenance agency on an estimated Maintenance Agency on an estimated basis
basis of the maintenance costs to be of the maintenance costs to be incurred for
incurred for the forthcoming financial the forthcoming financial year.
year. Maintenance charges shall be
levied from the date of issue of It is agreed by the Allottee that the payment
occupation certificate and the Apartment of maintenance charges will be applicable
Allottee undertakes to pay the same whether or not the possession is taken by
promptly. It is agreed by the Apartment the Allottee. The estimates of the
Allottee that the payment of maintenance Maintenance Agency shall be final and
charges will be applicable whether or not binding on the Allottee. The maintenance
the possession is taken by the Apartment charges shall be recovered on such
Allottee. The estimates of the estimated basis on monthly/ quarterly
maintenance agency shall be final and intervals as may be decided by the
binding on the Apartment Allottee. The Maintenance Agency and adjusted against
maintenance charges shall be recovered the actual audited expenses as determined
on such estimated basis on monthly/ at the end of the financial year and any
quarterly intervals as may be decided by surplus/deficit thereof shall be carried
the maintenance agency and adjusted forward and adjusted in the maintenance
against the actual audited expenses as bills of the subsequent financial year. The
determined at the end of the financial Allottee agrees and undertakes to pay the
year and any surplus/deficit thereof shall maintenance bills on or before due date as
be carried forward and adjusted in the intimated by the maintenance agency.
maintenance bills of the subsequent
The Apartments, excluding toilets and
financial year. The apartment Allottee
utility/servant room, are proposed to be
agrees and undertakes to pay the
provided with chilled water for air
maintenance bills on or before due date
conditioning for a capacity equivalent to as as intimated by the maintenance agency. mentioned in table below through central air The Apartments excluding toilets and conditioning plant(s) located in the service utility/servant room are proposed to be areas of the GHS Belaire at a suitable provided with chilled water for air diversity of 60%. Passive cooling will be conditioning for a capacity equivalent to done in toilets by means of exhausting cool-
as mentioned in table below through air.
central air conditioning plant(s) located in the service areas of The Belaire at a 82 suitable diversity of 60%. Passive cooling Blocks AC Capacity (TR) will be done in toilets by means of per Apartment exhausting cool-air.
A&C 14 B 13Blocks AC Capacity (TR) per Apartment D&E 18 A&C 14 B 13 The Allottee undertakes to pay at a rate to be determined by the D&E 18 company/Maintenance Agency for the
utilization of the chilled water through BTU meters installed by the Company for each apartment and further agrees to pay the The Apartment Allottee undertakes to pay fixed and other charges for the central air- at a rate to be determined by the conditioning plant(s) which may form a part company/ association of apartment of the maintenance charges of the GHS allottee/ maintenance agency for the Belaire or may be billed separately by the utilization of the chilled water through Company/the Maintenance Agency at its/ BTU meters installed by the Company for their sole discretion.
each apartment and further agrees to pay the fixed and other charges for the central air-conditioning plant(s) which may form a part of the maintenance charges of The Belaire or may be billed separately by the Company/ association of the apartment allottees/ the Maintenance Agency at its/ their sole discretion.
14.5 Payment for replacement, upgradation, Payment for replacement, up gradation, additions of Lifts, DG Sets, Electric Sub- additions of Lifts, DG Sets, Electric Sub- stations, Pumps, Fire Fighting Equipment stations, Pumps, Fire Fighting Equipment and other Capital Plants/ Equipments. and other Capital Plants/ Equipments.
That as and when any Plant & Machinery As and when any plant & machinery within within the said Complex/ said Building/ the GHS Belaire, as the case may be, within Zone 8, as the case may be, including but not limited to lifts, DG sets, including but not limited to lifts, DG sets, electric sub-stations, pumps, firefighting electric sub-stations, pumps, fire fighting equipment, any other plant / equipment of equipment, any other plant/ equipment of capital nature etc. require replacement, capital nature etc. require replacement, upgradation, additions etc. the cost thereof upgradation, additions etc. the cost shall be borne by the Company till the date thereof shall be contributed by all the of handing over the maintenance of the Apartment Allottees in the said Building/ GHS Belaire to the RWA. After the RWA said Complex/ Zone 8, as the case may takes over the maintenance of the GHS be on pro-rata basis (i.e. in proportion to Belaire, all the Allottees in the GHS Belaire, the super area of the said Apartment to as the case may be on pro-rata basis as the total super area of all the Apartments specified in Clause 38, contribute towards 83 in the said Building/ said Complex, as the the replacement, upgradation, additions etc. case may be). The Company or the including its timings or cost thereof as and maintenance agency shall have the sole when demanded by the RWA. authority to decide the necessity of such replacement, upgradation, additions etc. including its timings or cost thereof and the Apartment Allottee agrees to abide by the same.
The modifications made by the Informant may be accepted as the payments to be borne by the RWA after maintenance is handed over.
14.6 Right of Apartment Allottee to use Right of Allottee to use common areas and common areas and facilities subject to facilities subject to payment of total payment of total maintenance charges maintenance charges The Apartment Allottee hereby agrees to The Allottee hereby agrees to purchase the purchase the said Apartment on the Apartment on the specific understanding specific understanding that his/her right to that is/her right to the use of Common Areas the use of common areas and facilities and Facilities as mentioned in the within the said Building/ said Complex as Annexure(s) and the right to exclusive use listed in Part A and Part B of Annexure IV of parking spaces shall be subject to timely and right to exclusive use of covered/ payment of total maintenance charges, as Open parking spaces as listed in Part D determined and thereafter billed by the of Annexure IV shall be subject to timely Maintenance Agency or the RWA (or the payment of total Maintenance Charges as maintenance agency appointed by it) and billed by the maintenance agency and performance by the Allottee of all his/her performance by the Apartment Allottee of obligations in respect of the terms and all his/ her obligations under this conditions specified by the Maintenance Agreement and the tripartite Maintenance Agency or the RWA from time to time. Agreement. If the maintenance charges are not paid by the Apartment Allottee regularly and on or before its due date, then the Apartment Allottee agrees that he/ she shall have no right to use such common areas and facilities. But so long as the maintenance charges and all payments envisaged under these presents are regularly paid, on or before due date and convenants are observed, the Apartment Allottee shall be entitled to use such common areas and facilities as listed in Part-A and Part-B of Annexure IV and the exclusive use of parking spaces as listed in Part D of Annexure-IV.
14.7 Right to enter the said Apartment for Right to enter the Apartment for repairs repairs The Company/ Maintenance Agency/RWA 84 In addition to the Company's and the shall have rights of unrestricted access of all maintenance agency's rights of Common Areas and Facilities, and parking unrestricted usage of all common areas spaces for providing necessary and facilities as listed in Part-A and Part- maintenance services and the Allottee B of Annexure IV, and parking spaces as agrees to permit the RWA and/or listed in Part D of Annexure IV for Maintenance Agency to enter into the providing necessary maintenance Apartment or any part thereof, after due services, the Apartment Allottee agrees to notice and during the normal working' hours, permit the Company or the maintenance unless the circumstances warrant otherwise, agency to enter into the said Apartment with a view to set right any defect. Any or any part thereof, after due notice and unjustified refusal of the Allottee to give during the normal working hours, unless such right to entry will be deemed to be a the circumstances warrant otherwise, with violation of the maintenance agreement and a view to set right any defect in the said Company or RWA shall be entitled to take Apartment or the defects in the Apartment such action as it may deem fit. above or below the said Apartment. Any refusal of the Apartment Allottee to give such right to entry will be deemed to be a violation of his Agreement and the Company shall be entitled to take such actions as it may deem fit.
14.8 Insurance of the said Building Insurance of the Building The structure of the said Building may be The structure of the said Building shall be got insured against fire, earthquake, riots got insured against fire, earthquake, riots and civil commotion, militant action etc. and civil commotion, militant action etc. by by the Company or the maintenance the Company on behalf of the Allottees and agency on behalf of the Apartment the cost thereof shall be payable by Allottee Allottees and the the cost thereof shall be as part of the maintenance bill raised by the payable by Apartment Allottee as the part Company and thereafter the maintenance of the maintenance bill raised by the agency appointed by the RWA. Contents maintenance agency but contents inside inside each Apartment shall be insured by each Apartment shall be insured by the the Allottee at his/ her own cost. The cost of Apartment Allottee at his/ her own cost. insuring the Building structure shall be The cost of insuring the Building structure recovered from the Allottee as a part of total shall be recovered from the Apartment maintenance charges and the Allottee Allottee as a part of total maintenance hereby agrees to pay the same. charges and the Apartment Allottee hereby agrees to pay the same. The The Allottee shall not do or permit to be Apartment Allottee shall not do or permit done any act or thing which may render void to be done any act or thing which may or voidable insurance of any Apartment or render void or voidable insurance of any any part of the Building(s) / GHS Belaire or Apartment or any part of the said Building cause increased premium to be payable in or cause increased premium to be respect thereof for which the Allottee shall payable in respect thereof for which the be solely responsible and liable Apartment Allottee shall be solely responsible and liable.
15 Use of Basement and service areas Use of Basement and Service Areas The basement(s) and service areas, if The basement(s) and service areas, if any, 85 any, as may be located within the said as may be located within the GHS Belaire, Building/ said Complex, as the case may as the case may be, shall be earmarked as be, shall be earmarked by the Company parking spaces and services including but to house parking spaces and services not limited to electric sub-station, including but no limited to Electric Sub- transformer, DG set rooms, underground station, Transformer, DG set rooms, water tanks, pump rooms, maintenance and Underground water tanks, Pump rooms, service rooms, fire fighting pumps and Maintenance and Service rooms, Fire equipments etc. and other permitted uses Fighting Pumps and equipments etc. and as per zoning plans/building plans. The other permitted uses as per Zoning Plans/ Allottee shall not be permitted to use the Building Plans. The Apartment Allottee services areas and the basements in any shall not be permitted to use the services manner whatsoever and the same shall be areas in the basements in any manner reserved for use by the RWA formed by the whatsoever and the same shall be Allottees for rendering maintenance reserved for use by the Company or the services. maintenance agency and its employees for rendering maintenance services. Any violation of this condition shall be a breach of this agreement by the Apartment allottee.
16 Use of the said Apartment Use of the said Apartment The Apartment Allottee shall not use the The Allottee shall not use the said said Apartment for any purpose other Apartment for any purpose other than for than for residential use or use the same residential use or use the same in a manner in a manner that may cause nuisance or that may cause nuisance or annoyance to annoyance to occupants of other occupants of other Apartments in the Apartments in the said Building/ said Building/ GHS Belaire or for any commercial Complex or for any commercial or illegal or illegal or immoral purpose or to do or or immoral purpose or to do or suffer suffer anything to be done in or around the anything to be done in or around the said said Apartment which tends to cause Apartment which tends to cause damage damage to any flooring or ceiling or services to any flooring or ceiling or services of of any Apartment over, below, adjacent to any Apartment over, below, adjacent to the Apartment or anywhere in the GHS the said Apartment or anywhere in the Belaire or in any manner interfere with the said Complex or in any manner interfere use thereof or of spaces, passages, with the use thereof or of spaces, corridors or amenities available for common passages, corridors or amenities use.
available for common use. The
Apartment Allottee hereby agrees/
indemnifies the Company against any
penal action, damages or loss due to
misuse for which the Apartment Allottee/
occupant shall be solely responsible. If
the Apartment Allottee uses or permits
the use of the said Apartment for any
purpose other than residential, then the
Company shall be entitled to treat this
Agreement as cancelled and to resume
the possession of the said Apartment and
86
the Apartment Allottee has agreed to this
condition. The Apartment Allottee
specifically agrees that the use for which
the apartment is purchased shall not be
altered without obtaining prior consent in
writing from the Company and any
change in the specified use shall be
treated as a breach of this Agreement
entitling the Company to cancel the
allotment and forfeit the entire money
deposited by the Agreement Allottee.
Thereafter, the Apartment Allottee shall
not have any right title or interest in the
said Apartment applied herein.
17 Use of terraces Use of Terrace(s)
The Company reserves the right to give The Allottees, to the exclusion of the
on lease or hire any part of the top Company, shall have the title to the
roof/terraces above the top floor, unless terrace(s) above the top floor of the
otherwise reserved specifically, of any of Building(s) in the GHS Belaire and the RWA
the buildings in the said Complex for formed by the Allottees shall have the right
installation and operation of antenna, to use the roof top/terrace(s) above the top
satellite dishes, communication towers, floor, for any purpose including installation
other communication equipment or to and operation of antenna, satellite dishes,
use/hire/lease the same for communication towers, other
advertisement purposes and the communication equipment.
Apartment Allottee agrees that he/ she
shall not object to the same and make
any claims on this account.
18 General compliance with respect to the General compliance with respect to the
said Apartment Apartment
That the Apartment Allottee shall, after The Allottee shall, after taking possession,
the expiry of period as stipulated in be solely responsible to maintain the
Clause (10.2) be solely responsible to Apartment at his/her own cost, in good
maintain the said Apartment at his/ her repair and condition and shall not do or
own cost, in a good repair and condition suffer to be done anything in or to the
and shall not do or suffer to be done Building, or the Apartment, or the
anything in or to the said Building, or the staircases, lifts, common passages,
said Apartment, or the staircases, lifts, corridors, circulation areas, atrium or the
common passages, corridors, circulation compound which may be in violation of any
areas, atrium or the compound which laws or rules of any authority or change or
may be in violation of any Laws or Rules alter or make additions to the Apartment
of any Authority or change or alter or and keep the Apartment, its walls and
make additions to the said Apartment and partitions, sewers, drains, pipe and
keep the said Apartment, its walls and appurtenances thereto or belonging thereto,
partitions, sewers, drains, pipes and in good and tenantable repair and maintain
appurtenances thereto or belonging the same in a fit and proper condition and
87
thereto, in good and tenantable repair ensure that the support, shelter etc. of the
and maintain the same in a fit and proper Building is not in any way damaged or
condition and ensure that the support, jeopardized. The Allottee further
shelter etc. of the Building or pertaining to undertakes, assures and guarantees that the Building in which the said Apartment he/she would not put any sign-board / is located, is not in any way damaged or name-plate, neon light, publicity material or jeopardized. The Apartment Allottee advertisement material etc. on the face / further undertakes, assures and facade of the Building or anywhere on the guarantees that he/she would not put any exterior of the Building or Common Areas sign board/ name-plate, neon-light, and Facilities. The Allottees shall also not publicity material or advertisement change the colour scheme of the outer walls material etc. on the face/ facade of the or painting of the exterior side of the doors Building or anywhere on the exterior of and windows etc. or carry out any change in the Building or common areas. The the exterior elevation or design. Further the Apartment Allottee shall also not change Allottee shall not store any hazardous or the color scheme of the outer walls or combustible goods in the Apartment or painting of the exterior side of the doors place any heavy material in the common and windows etc. or carry out any change passages or staircase of the Building. The in the exterior elevation or design. Allottee shall also not remove any wall, Further the Apartment Allottee shall not including the outer and load bearing wall of store any hazardous or combustible the Apartment. The Allottee shall plan and goods in the said Apartment or place any distribute its electrical load in conformity heavy material in the common passages with the electrical systems installed by the or staircase of the said Building. The Company and thereafter the RWA and/or Apartment Allottee shall also not remove maintenance agency appointed by RWA. any wall, including load bearing wall of The non-observance of the provisions of this the said Apartment. The Apartment clause shall entitle the RWA, to enter the Allottee shall plan and distribute its Apartment, if necessary and remove all non- electrical load in conformity with the conforming fittings and fixtures at the cost electrical systems installed by the and expense of the Allottee. The Allottee Company. The Non-observance of the shall be responsible for any loss or provisions of this clause shall entitle the damages arising out of breach of any of the Companyand or the maintenance agency, aforesaid conditions.
to enter the Ap[artment, if necessary and
remove the non-conforming fittings and
fixtures at the cost and expense of the
Apartment Allottee. The Apartment
Allottee shall be responsible for any loss
or damages arising out of breach of any
of the aforesaid conditions.
19 Compliance of Laws, Notifications etc. by Compliance of Laws, Notifications etc. by
Apartment Allottee Allottee
The Apartment Allottee is entering into The Allottee is entering into this Agreement
this Agreement for the allotment of a for the allotment of a residential Apartment
residential Apartment with the full with the full knowledge of all laws, rules,
knowledge of all laws, rules, regulations, regulations, notifications applicable to
notifications applicable to Phase V in Phase V in general and this group housing
general and this group housing project in project in particular. That the Allottee
particular. That the Apartment Allottee hereby undertakes that he/she shall comply
88
hereby undertakes that he/she shall with and carry out, from time to time after
comply with and carry out, from time to he/she has taken over for occupation and
time after he/she has taken over for use the said Apartment, all the
occupation and use the said Apartment requirements, requisitions, demands and
all the requirements, requisitions, repairs which are required by any
demands and repairs which are required development authority/ municipal authority/
by any Development Authority/ Municipal Government or any other competent
Authority/ Government or any other authority in respect of the Apartment/
Competent Authority in respect of the Building at his/ her own cost and keep the
said Apartment/ Building at his/ her own Company indemnified, secured and
cost and keep the Company indemnified, harmless against all costs, consequence
secured and harmless against all costs, and all damages, arising on account of non-
consequence and all damages, arising on compliance with the said requirements,
account of non-compliance with the said requisitions, demands and repairs.
requirements, requisitions, demands and
repairs.
20 Alterations of unsold units Alterations and Maintenance of Unsold
Units
The Company shall have right, without
any approval from any Apartment Allottee The Company shall have the right, without
in the said Building to make any any approval from any Allottee to make any
alterations, additions, improvements or alterations, additions, improvements or
repairs whether structural or non- repairs whether structural or non-structural,
structural, interior or exterior, ordinary or interior or exterior, ordinary or extraordinary extra ordinary in relation to any unsold in relation to any unsold Apartment(s) within apartment(s) within the said Building and the Building and the Allottee shall have no the Apartment Allottee agrees not to raise right to raise objections or make any claims objections or make any claims on this on this account. However such alterations account. must be in accordance with sanctioned/approved lay out plans.
21 Flats/Dwelling Units, School(s), To be deleted.
Commercial Premises/ Building, etc. If stipulated in the terms of the Deed of Licence and the bilateral agreement executed between the Company and the Government of Haryana if it is required to earmark a portion of Phase V/ Said Portion of Land, as the case may be, for the construction of flats/ dwelling units for Economically Weaker Sections (EWS) of the society, schools, shops, club/ community centre, Commercial premises/ buildings etc, in such a case, it is a condition of this Agreement agreed to by the Apartment Allottee that he/ she shall have no right, no title or no interest in any form or manner in the land earmarked for 89 as well as in the EWS flats/ dwelling units, school(s), shops, Commercial premises, religious building, club/ community centre, the buildings constructed thereon and facilities provided therein. Further the Apartment Allottee hereby agrees that he/ she shall not have any claim or right to any Commercial premises/ buildings or interfere in the manner of booking, allotment and finalization of sale of flats/ dwelling units for EWS, school(s), shops, Commercial premises/ buildings, club/ community centre or in the operation and management of shops, club/ community centre, school(s), Commercial premises/ building etc. The Company shall enter into a separate agreement with Allottees of EWS flats/ dwelling units, school(s), shops, Commercial premises, religious buildings, club/ community centre, etc. for the purpose of sale of such flats/ dwelling units, Shops Commercial premises/ buildings, club/ community centre, etc., and the Apartment Allottee confirms that he/ she has specifically noted the same.
22 Right of the Company to make additional No additional constructions constructions The Company undertakes that it has no The Apartment allottee agrees and right to make additions or to put up authorises the Company to make additional structure(s) anywhere in the GHS additions to or put up additional structures Belaire after the building plan has been in/upon the said Building or Additional approved by the competent authority (ies) Apartment Buildings(s) and /or structures as enclosed in Annexure [].
anywhere in the said Complex/Said portion of Land as may be permitted by the competent authorities and such additional Apartment Building(s)/structures shall be the sole property of the Company which the Company will be entitled to dispose off in any way it chooses without any interference on the part of the Apartment Allottees. The Apartment Allottee agrees that the company, at its cost, shall be entitled to connect the electric, water, sanitary and drainage fittings on the additional structures/stories with the existing electric, water, sanitary and drainage sources. The Apartment allottee 90 further agrees and undertakes that he/she shall after taking possession of the said Apartment or at any time thereafter, not object to the company constructing or continuing with the construction of the other building(s)/block outside/adjacent to the said Building or inside the said Complex/said Portion of Land or claim any compensation or withhold the payment of maintenance and other charges, as and when demanded by the Company, on the ground that the infrastructure required for the said Complex is not yet complete. Any violation of this condition shall entitle the Company to seek remedies provided under this Agreement in cases of breach, non payment, defaults etc. The modification as proposed by the Informant may be accepted as once plans are final no additional structures should be allowed.
23 Company's right to raise finance Company's right to raise finance The Apartment Allottee hereby authorizes The Allottee shall have no objection, before and permits the Company raise the execution of the conveyance deed, finance/loan from any Financial against the Company raising finance/loan Institution/Bank by way of from any financial institution by way of mortgage/charge/securitization of mortgage/charge/securitization of receivables or in any other mode or receivables or in any other mode or manner manner by charge/mortgage of the said the property of GHS Belaire subject to the Apartment/said Building/said condition that the Apartment shall be free Complex/said Portion of Land subject to from all encumbrances before the execution the condition that the said Apartment of the conveyance deed. The Company may shall be free from all encumbrances at raise finance/loan on any unsold Apartment the time of execution of conveyance from any financial institution/bank by way of deed. The Company/Financial mortgage/charge/securitization of Institution/Bank shall always have the first receivables or in any other mode or manner. lien/charge on the said Apartment for all However, the Company/bank/financial their dues and other sums payable by the institution shall have no right or lien over the Apartment Allottee or in respect of any sold Apartments or the Common Areas and loan granted to the Company for the Facilities.
purpose of the constructions of the said .
Building/said Complex.
24 This Agreement subordinate to mortgage This Agreement subordinate to mortgage by
by the Company the Company
The Apartment Allottee agrees that no The Allottee agrees that no lien or lien or encumbrance shall arise against encumbrance shall arise against the said the said Apartment as a result of this Apartment as a result of this Agreement or 91 Agreement or any money deposited any money deposited hereunder by the hereunder by the Apartment Allottee. In Allottee. In furtherance and not in furtherance and not in derogation of the derogation of the provisions of the provisions of the preceding sentence the preceding sentence, the Allottee agrees that Apartment Allottee agrees that the the provisions of this Agreement are and provisions of this Agreement are and shall continue to be subject and subordinate shall continue to be subject and to the lien of any mortgage heretofore or subordinate to the lien of any mortgage hereafter made/ created by the Company heretofore or hereafter made/ created by and any payments or expenses already the Company and any payments or made or incurred or which hereafter may be expenses already made or incurred or made or incurred pursuant to the terms which hereafter may be made or incurred thereof or incidental thereto or to protect the pursuant to the terms thereof or incidental security thereof, to the fullest extent thereof thereto or to protect the security thereof, and such mortgage(s) or encumbrances to the fullest extent thereof and such shall not constitute an objection to the title of mortgage(s) or encumbrances shall not the said Apartment or excuse the Allottee constitute an objection to the title of the from completing the payment of the price of said Apartment or excuse the Apartment the said Apartment or performing all the Allottee from completing the payment of Allottee's other obligations hereunder or be the price of the said Apartment or the basis of any claim against or liability of performing all the Apartment Allottee's the Company provided that at the time of other obligations hereunder or be the the execution of the conveyance deed the basis of any claim against or liability of said Apartment shall be free and clear of all the Company provided that at the time of encumbrances, lien and charges the execution of the conveyance deed the whatsoever. In case of Allottees who have said Apartment shall be free and clear of opted for long term payment plan all encumbrances, lien and charges arrangement with any Financial Institutions/ whatsoever. In case of the Apartment Banks, the conveyance of the Apartment in Allottee who have opted for long term favour of the Allottee shall be executed only payment plan arrangement with any on the Company receiving no objection Financial Institutions/ Banks the certificate from such financial institution/ conveyance of the Apartment in favour of banks. the Apartment Allottee, shall be executed only on the Company receiving no objection certification from such Financial Institution/ Banks.
25 p Company's charge on the said To be deleted Apartment The Apartment Allottee agrees that the Company shall have the first charge/ lien on the said Apartment for the recovery of all its dues payable by the Apartment Allottee under this Agreement and such other payments as may be demanded by the Company from time to time. Further the Apartment Allottee agrees that in the event of his/ her failure to pay such dues as aforestated, the Company will be 92 entitled to enforce the charge/ lien by selling the said Apartment to recover and receive the outstanding dues out of the sale proceeds thereo.
26 Purchase not Dependent on financing Purchase not Dependent on financing
contingency. contingency.
The Apartment Allottee may obtain The Allottee may obtain finance from any
finance from any financial institution/ bank financial institution/ bank or any other or any other source but the Apartment source but the Allottees' obligation to Allottees' obligation to purchase the said purchase the Apartment pursuant to this Apartment pursuant to this Agreement Agreement shall not be contingent on the shall not be contingent on the Apartment Allottee's ability or competency to obtain Allottee's ability or competency to obtain such financing and the Allottee will remain such financing and the Apartment Allottee bound under this Agreement whether or not will remain bound under this Agreement he/ she has been able to obtain financing for whether or not he/ she has been able to the purchase of the Apartment. obtain financing for the purchase of the said Apartment.
27 Haryana Apartment Ownership Act, 1983 Haryana Apartment Ownership Act, 1983 The Apartment Allottee has confirmed The Company has assured the Allottees and assured the Company prior to that the project in its entirety is in entering into this Agreement that he/s she accordance with the provisions of the has read and understood the Haryana Apartment Act. Apartment Ownership Act, 1983 and its implications thereof in relation to the The Company showing compliance of various provisions of this Agreement and various laws/regulations as applicable in the Apartment Allottee has further Haryana undertakes to file a Deed of confirmed that he/ she is in full agreement Declaration within 90 days from the date of with the provisions of this Agreement in obtaining of the occupation certificate as relation to Haryana Apartment Ownership defined in Section 2 of the Apartment Act Act, 1983 and shall comply, as and when that will include the entire Said Land, all the applicable and from time to time, with theApartments and entire set of Common provisions of Haryana Apartment Areas and Facilities (as listed in Annexure Ownership Act, 1983 or any statutory []) constructed within the GHS Belaire and amendments or modifications thereof or nothing constructed within the GHS Belaire the provisions of any other law(s) dealingwill be excluded from the Declaration. The with the matter. Company shall provide a Copy of such declaration to all Allottees and RWA. The If the said Apartment and the building in Allottee has assured the Company to which it is located be subject to Haryana faithfully abide by such Declaration. Apartment Ownership Act, 1983 or any statutory enactments or modifications thereof, the Common areas and facilities and the undivided interest of each apartment owner in the common areas and facilities as specified by the Company in the declaration which may be filed by the Company in compliance of 93 Haryana Apartment Ownership Act, 1983 shall be conclusive and binding upon the apartment owners and the Apartment Allottee agrees and confirms that his/ her right, title and interest in the said Apartment/ said Building/ said Complex shall be limited to and governed by what is specified by the Company in the said declaration, which shall be in strict consonance with this Agreement and in no manner shall confer any right, title or interest in any lands, facilities, amenities and buildings outside the land beneath the said Building in which the said Apartment is located. It is made clear that the Company shall be the sole owner of the said lands, facilities, amenities and buildings outside the land beneath the said building in which the said Apartment is located and the Company shall be entitled to sell, transfer, part with possession thereof or otherwise dispose of the same to any one and in any manner at its sole discretion and the apartment Allottee shall have no claim whatsoever of any sort therein. The Apartment Allottee undertakes to join any society/ association of the apartment owners and to pay any fees, charges thereof and complete such documentation and formalities as may be deemed necessary by the Company in its sole discretion for this purpose.
28 Association of Apartment Owners To be deleted.
The Apartment Allottee agrees and undertakes that he/she shall join any Association/society of Apartment Owners as maybe formed by the Company on behalf of apartment owners and to pay any fees, subscription charges thereof and to complete such documentation and formalities as may be deemed necessary by the Company for this purpose. An application form for enrolling the Apartment Allottee as a member of such Association is attached as Annexure VIII and the Apartment Allottee agrees to execute the same.
29 Binding effect Binding effect 94 Forwarding this Agreement to the Forwarding this Agreement to the Allottee Apartment Allottee by the Company does by the Company does not create a binding not create a binding obligation on the part obligation on the part of the Company or the of the Company or the Apartment Allottee Allottee until, firstly, the Allottee signs and until firstly, the Apartment Allottee signs delivers this Agreement with all the and delivers this Agreement with all the annexures along with the payments due as annexures along with the payments due stipulated in the schedule of payments in as stipulated in the Schedule of Annexure [] within 30 days from the date of Payments in Annexure III within thirty (30) receipt by the Allottee and, secondly, a days from the date of dispatch by the copy of this Agreement executed by the Company and secondly a copy of this Company through its authorized signatory is Agreement executed by the Company delivered to the Allottee within thirty 30 days through its authorized signatory is from the date of receipt of this Agreement delivered to the Apartment Allottee within by the Company from the Allottee. thirty (30) days from the date of receipt of this Agreement by the Company from the If the Allottee(s) fails to execute and deliver Apartment Allottee. If the Apartment to the company this Agreement within 30 Allottee(s) fails to execute and deliver to days from the date of its receipt by the the company this Agreement within thirty Allottee, then the Company shall serve a (30) days from the date of its dispatch by notice to the Allottee for rectifying the the Company, then the application of the default, which if not rectified within 30 days Apartment Allottee shall be treated as from the date of its receipt by the Allottee, cancelled and the earnest money paid by application of the Allottee shall be treated as the Apartment Allottee shall stand cancelled and all sums deposited by the forfeited. If the counter part of this Allottee in connection therewith including Agreement is not executed by the the earnest money shall be returned to the Company and dispatched to the Allottee without any interest or Apartment Allottee within thirty (30) days compensation whatsoever. from the date of its receipt from the Apartment allottee, then this Agreement The counter-part of this Agreement shall be shall be deemed to have been rejected executed by the Company and dispatched and cancelled and all sums deposited by to the Allottee within 30 days from the date the Apartment Allottee in connection of its receipt from the Allottee. therewith shall be returned to the apartment Allottee without any interest or compensation whatsoever. Upon such refund being made neither party shall have any further right, obligations or liabilities against the other.
30 Agreement not assignable. Agreement not assignable.
It is specifically clarified by the company The Allottee shall have the option to assign, to the Apartment Allottee that the transfer, nominate, convey its right in the apartment in 'The Belaire' being allotted Apartment along with the pro rata share in herein by way of this Agreement is non- the Common Areas and Facilities in any transferable in nature by the apartment manner. The Company undertakes to Allottee and the provisional/final allotment facilitate in giving effect to such assignment, that may be made by the Company shall transfer, nomination and conveyance by the not be assigned, transferred, nominated Allottee.
95or conveyed by the Apartment Allottee in any manner without prior written consent of the Company which consent may be given or denied by the Company in its sole discretion and shall always be subject to applicable laws and notifications or any directions of the government in force and shall also be subject to the terms, conditions and charges as the Company may impose from time to time in this regard. The Apartment Allottee shall be solely responsible and liable for all legal, monetary or any other consequences that may arise from such nominations, if so permitted by the Company at its sole discretion. In the event of refusal or denial by the Company for giving permission to the Apartment Allottee for assignment, transfer, conveyance or nomination of the Apartment being allotted herein, the apartment Allottee has assure the Company and has undertaken not to raise any dispute or claim in any manner at any time based upon which the Company has agreed to make provisional/final allotment of the said apartment.
31 Entire Agreement Entire Agreement This Agreement along with its annexure This Agreement, along with its Annexure(s), and the terms and conditions contained in constitutes the entire Agreement between the application constitutes the entire the Parties with respect to the subject Agreement between the parties with matter hereof and supersedes any and all respect to the subject matter hereof and understandings, any other agreements, supersedes any and all understandings, correspondences, arrangements whether any other Agreements, correspondences, written or oral, if any, between the Parties. arrangements whether written or oral, if any, between the parties. The terms and conditions of the application shall continue to prevail and be binding on the Apartment Allottee save and except in cases where the terms and conditions of the application are at variance with the terms and conditions of this Agreement in which cases the terms and conditions of this Agreement shall prevail and shall supercede those terms and conditions contained in the application. This must be set fourth in writing in a separate 96 Agreement duly signed by and between the parties.
32 Right to amend Annexures Right to Amend Annexure(s) The Draft Tripartite Maintenance All Annexure(s) to this Agreement are an Agreement (Annexure VIII) is attached to integral part of the Agreement and may only this Agreement to acquaint the Apartment be amended through written consent of the Allottee with some of the terms and Parties. conditions as may be stipulated in this document as and when it is finally executed at the appropriate time as notified by the company. The Apartment Allottee hereby confirms that he/she consents to the terms and conditions contained in this draft which shall substantially be the same in the final document to be executed at the appropriate time as notified by the Company. The Apartment Allottee further agrees that the Company shall have the right to impose additional terms and conditions or to modify/amend/change the terms and conditions as stated in this draft in the final document to be executed at the appropriate time.
The Company further reserves the right to correct, modify, amend or change all the annexures attached to this Agreement and also annexures which are indicated to be tentative at any time prior to conveyancing of the said Apartment, as deemed necessary by the Company at its sole discretion.
33 Agreement Specific only to this To be deleted.
Apartment/Project It is clearly understood and agreed by the Apartment allottee that the provisions of this agreement, draft tripartite Maintenance agreement, and those contained in other annexures are specific and applicable to Apartments offered for sale in the Belaire only (the said Complex) and these provisions cannot be read in evidence or interpreted in any manner in or for the purpose of any suit or proceedings before any Court(s), Commission, Consumer Disputes Forum(s) or any other judicial forum 97 involving any other Apartment(s)/ Building(s)/ Project(s) of the company/ its associates/subsidiaries, partnership firms in which the company is partner or interested.
34 Provisions of this Agreement applicable Provisions of this Agreement Applicable on on Occupiers/Subsequent Purchasers Allottee / Subsequent Purchasers It is clearly understood and so agreed by It is clearly understood and so agreed by and between the parties hereto that all and between the Parties hereto that all the the provisions contained herein and the provisions contained herein and the obligation arising hereunder in respect of obligations arising hereunder in respect of the said Apartment/said Building/said the GHS Belaire shall equally be applicable Complex shall equally be applicable to to and enforceable against any subsequent and enforceable against any and all purchasers of the Apartment, as the said occupiers, tenants, licencees and/or obligations go along with the Apartment for subsequent purchasers/assignees of the all intents and purposes. said Apartment, as the said obligations go along with the said Apartment for all intents and purposes.
35 Waiver not a limitation to enforce Waiver not a limitation to enforce
a) The Company may, at its sole (i) The Company may, at its sole option and discretion, without option and discretion, without prejudice to its rights as set out in prejudice to its rights as set out in Clauses (4) and (12) of this Clause (4) of this Agreement, Agreement, waive the breach by waive the breach by the Allottee the Apartment Allottee in not in not making payments as per making payments as per the the schedule of payments given in Schedule of Payments given in Annexure [] but on the condition Annexure III but on the condition that the Allottee shall pay to the that the Apartment Allottee shall Company interest @[]% per pay to the Company interest which annum. It is made clear and so shall be charged for the first ninety agreed by the Allottee that (90) days after the due date exercise of discretion by the @15% per annum and for all Company in the case of one periods of delay exceeding first Allottee shall not be construed to ninety (90) days after the due date be a precedent and /or binding on an additional penal interest @3% the Company to exercise such per annum (total interest 18% per discretion in the case of other annum only). It is made clear and Allottees. so agreed by the Apartment Allottee that exercise of discretion (ii) Failure on the part of the by the Company in the case of one Company to enforce at any time Apartment Allottee shall not be or for any period of time the construed to be a precedent and provisions hereof shall not be /or binding on the Company to construed to be a waiver of any exercise such discretion in the provisions or of the right 98 case of other Apartment Allottees. thereafter to enforce each and every provision.
b) Failure on the part of the Company to enforce at any time or for any period of time the provisions hereof shall not be construed to be a waiver of any provisions or of the right thereafter to enforce each and every provision.
36 Severability No change required If any provision of this Agreement shall be determined to be void or unenforceable under applicable law, such provisions shall be deemed amended or deleted in so far as reasonably inconsistent with the purpose of this Agreement and to the extent necessary to conform to applicable law and the remaining provisions of this Agreement shall remain valid and enforceable as applicable at the time of execution of this Agreement.
37 Captions/Headings No change required The captions/headings in this Agreement are for easy reading and convenience and are of indicative nature only and in no way define, limit or describe the scope of this Agreement or the intent of any provision hereof. The true interpretation of any matter/clauses in this Agreement shall be done by reading the various clauses in this Agreement as a whole and not in isolation or in parts or in terms of captions provided 38 Method of calculation of proportionate Method of Calculation of Proportionate share where-ever referred to in the Share wherever Referred to in the Agreement Agreement Wherever in this Agreement it is Wherever in this Agreement it is stipulated stipulated that the Apartment Allottee has that the Allottee has to make any payment, to make any payment in common with the in common with other Allottee(s) in the GHS other Apartment Allottees in the same Belaire, the same shall be the proportion building, the same shall be the proportion which the Super Area of the Apartment which the super area of the said bears to the total Super Area of all the Apartment bears to the total super area of Apartments in the GHS Belaire, as the all the apartments in the said Building. context may require. Wherever in this Agreement it is stipulated that the Apartment Allottee has to make any payment in common with the 99 Apartment Allottee of all the buildings to be constructed on the said Portion of Land the same shall be in proportion which the super area of the said Apartment bears to the total super area of all the apartments in all the buildings to be constructed on the said Portion of Land.
39 Force Majeure Force Majeure The Company shall not be held "Force Majeure" means any event or responsible or liable for not performing combination of events or circumstances any of its obligations or undertakings beyond the control of a Party which cannot provided for in this Agreement if such be prevented, or cause to be prevented, and performance is prevented, delayed or which adversely affects and makes it hindered by an act of God, fire, flood, impossible to perform obligations under this explosion, war, riot, terrorist acts, Agreement, which shall include:
sabotage, inability to procure or general A. Acts of God, i.e. fire, flood, earthquake, shortage of energy, labour, equipment, natural disasters or acts of like nature; facilities, materials or supplies, failure of B. Air crashes; transportation, strikes, lock outs, action of C. War and hostilities of war, riots or civil labour unions or any other cause commotion of a prolonged nature of atleast (whether similar or dissimilar to the 6 month(s);
foregoing) not within the reasonable D. Any event or circumstance analogous to
control of the Company. the foregoing.
40 Right to join as affected Party Right to join as affected Party
The Apartment Allottee agrees that the The Allottee agrees that the Company shall
Company shall have right to join as an have the right to join as an affected party in
affected party in any suit/complaint filed any suit/complaint filed before any
before any appropriate court by the appropriate court by the Allottee if the
Apartment Allottee if the Company's Company's rights under this Agreement are
rights under this Agreement are likely to likely to be affected or prejudiced in any
be affected/prejudiced in any manner by manner by the decision of the court on such
the decision of the court on such suit/complaint. The Allottee agrees to keep
suit/complaint. The Apartment Allottee the Company fully informed at all times in
agrees to keep the Company fully this regard.
informed at all times in this regard.No
change required
41 Indemnification To be deleted
The Apartment Allottee hereby
covenants' with the Company to pay from
time to time and at all times the amounts
which the Apartment Allottee is liable to
pay under this Agreement and to observe
and perform all the covenants and
conditions contained in this a Agreement
and to keep the Company and its agents
100
and representatives, estate and effects,
indemnified and harmless against any
loss or damages that the Company may
suffer as a result of non-payment, no-
observance or non-performance of the
convenants and conditions stipulated in
this Agreement.
42 Brokerage Brokerage
In case the Apartment Allottee has to pay In case the Allottee has to pay any
any commission or brokerage to any commission or brokerage to any person for
person for services rendered by such services rendered by such person to the
person to the Apartment Allottee whether Allottee whether in or outside India for
in or outside India for acquiring the said acquiring the Apartment for the Allottee, the
Apartment for the Apartment Allottee, the Company shall in no way whatsoever be
Company shall in no way whatsoever be responsible or liable therefor and no such
responsible or liable therefor and no such commission or brokerage shall be
commission or brokerage shall be deductible from the amount of sale price
deductible from the amount of sale price agreed to be payable to the Company for
agreed to be payable to the Company for the Apartment. Further, the Allottee
the said Apartment. Further the undertakes to indemnify and hold the
Apartment Allottee undertakes to Company free and harmless from and
indemnify and hold the Company free and against any or all liabilities and expenses in
harmless from and against any or all this connection.
liabilities and expenses in this connection.
43 Further Assurances Further Assurances The Apartment Allottee and the persons Both Parties agree that they shall execute, to whom the said Apartment or part acknowledge and deliver to the other such thereof is let, transferred, assigned or instruments and take such other actions, in given possession shall execute, additions to the instruments and actions acknowledge and deliver to the Company specifically provided for herein, as may be such instruments and take such other reasonably required in order to effectuate actions, in additions to the instruments the provisions of this Agreement or of any and actions specifically provided for transaction contemplated herein or to herein, as the Company may reasonably confirm or perfect any right to be created or request in order to effectuate the transferred hereunder or pursuant to any provisions of this Agreement or of any such transaction.
transaction contemplated herein or to confirm or perfect any right to be created or transferred hereunder or pursuant to any such transaction.
44 Copies of the Agreement No modification required Three copies of this Agreement shall be executed and the Company shall retain the orginal and a copy of this Agreement and send the third executed copy to the Apartment Allottee for his/her reference and record.
10145 Place of Execution Place of Execution The execution of this Agreement will be The execution of this Agreement will be complete only upon its execution by the complete only upon its execution by the Company through its Authorised Company through its authorized signatory at Signatory at the Company's head Office the Company's head Office in New Delhi in New Delhi after the copies duly after the copies duly executed by the executed by the Apartment Allottee are Allottee are received by the Company. received by the Company. Hence this Hence this Agreement shall be deemed to Agreement shall be deemed to have been have been executed at New Delhi even if executed at New Delhi even if the the Allottee has prior thereto executed this Apartment Allottee has prior thereto Agreement at any place (s) other than New executed this Agreement at any place (s) Delhi. other than New Delhi.
46 Notices Notices That all notices to be served on the That all notices to be served on the Allottee Apartment Allottee and the Company as and the Company as contemplated by this contemplated by this Agreement shall be Agreement shall be deemed to have been deemed to have been duly served if sent duly served if sent to the Allottee or the to the Apartment Allottee or the Company Company by Registered Post at their by Registered Post at their respective respective addresses specified below addresses specified below _________________ _________________ _________________ (Address of _________________ (Address of Apartment Allottee) Apartment Allottee) _________________ _________________ M/s DLF Limited M/s DLF Limited DLF Centre, Sansad Marg, DLF Centre, Sansad Marg, New Delhi-110001 New Delhi-110001 It shall be the duty of the Allottee to inform It shall be the duty of the Apartment the Company of any change subsequent to Allottee to inform the Company of any the execution of this Agreement in the change subsequent to the execution of above address by Registered Post failing this Agreement in the above address by which all communications and letters posted Registered Post failing which all at the above address shall be deemed to communications and letters posted at the have been received by the Allottee. above address shall be deemed to have been received by the Apartment Allottee.
47 Joint purchasers Joint purchasers That in case there are Joint Apartment That in case there are Joint Allottees all Allottees all communications shall be sent communications shall be sent by the by the Company to the Apartment Allottee Company to the Allottee whose name whose name appears first and at the appears first and at the address given by address given by him/her which shall for him/her which shall for all intents and all intents and purposes to considred as purposes to considered as properly served properly served on all the Apartment on all the Allottees.
102Allottees.
48 Certain References No modification required Any reference in this Agreement to any one gender, masculine, feminine or neuter includes the other two and the singular includes the plural and vice versa, unless the context otherwise requires. The terms "herein", "hereto", "hereunder", "hereof" or "thereof" or similar terms used in this Agreement refer to this entire Agreement and not to the particular provision in which the term is used unless the context otherwise requires. Unless otherwise stated all references herein to clauses, sections or other provisions are references to clauses, sections or other provisions of this Agreement.
49 Right to Transfer Ownership Right to Transfer Ownership The Company reserves the right to The Company reserves the right, during the transfer ownership of the said The Belaire period of construction of the GHS Belaire, to in whole or in parts to any other entity transfer ownership of the GHS Belaire in such as Partnership firm, body corporate whole or in parts to any other entity such as
(s) whether incorporated or not, partnership firm, body corporate(s) whether Association or Agency by way of incorporated or not, association or agency sale/disposal/or other arrangement as by way of sale/ disposal / or any other may be decided by the Company in its arrangement as may be decided by the sole discretion and the Apartment Allottee Company. The Company, however, shall agrees that he/she shall not raise any take an undertaking from the Transferee objection in this regard. assuring the Allottees that the Transferee shall abide by and conform to the terms and conditions laid out in this Agreement and obligations arising therefrom.
50 Laws of India No change required That the rights and obligations of the parties under or arising out of this Agreement shall be construed and enforced in accordance with the laws of India.
51 Dispute Resolution by Arbitration Dispute Resolution by Arbitration All or any disputes arising out of or All or any disputes arising out or touching touching upon or in relation to the terms upon or in relation to the terms and of this Agreement including the conditions of this Agreement, including the interpretation and validity of the terms interpretation and validity of the terms thereof and the respective rights and thereof and the respective rights and 103 obligations of the parties shall be settled obligations of the Parties, shall be settled amicably by mutual discussion failing amicably by mutual discussion, failing which which the same shall be settled through the same shall be settled through arbitration. The arbitration shall be arbitration. governed by the Arbitration & Conciliation Act, 1996 or any statutory The arbitration proceedings shall be amendments/modifications thereof for the governed by the Arbitration and Conciliation time being in force. The arbitration Act, 1996. The arbitration proceedings shall proceedings shall be held at an be held at an appropriate location at DLF appropriate location in DLF City, City, India by a sole arbitrator, who shall be Gurgaon, Haryana by a Sole Arbitrator mutually appointed by the Parties or if who shall be appointed by the Company unable to be mutually appointed, appointed and whose decision shall be final and by the Court under the Arbitration and binding upon the Parties. The Apartment Conciliation Act, 1996. Allottee hereby confirms that he/she/it shall have no objection to this appointment even if the person so appointed, as the Arbitrator, is an employee or advocate of the Company or is otherwise connected to the Company and the Apartment Allottee confirms that notwithstanding such relationship/connection, the Apartment Allottee shall have no doubts as to the independence or impartiality of the said Arbitrator. The Courts at Gurgaon alone and the Punjab & Haryana High Court at Chandigarh alone shall have the jurisdiction.
32. Secretary is directed to provide a copy of this order to all concerned, besides forwarding the same to Hon'ble Competition Appellate Tribunal(COMPAT).
33. It is ordered accordingly.
Sd/- Sd/- Sd/-
(H.C. Gupta) (R.Prasad) (Anurag Goel)
Member Member Member
Sd/- Sd/- Sd/-
(Geeta Gouri) (M.L.Tayal) (Justice S.N.Dhingra)(Retd.)
Member Member Member
Sd/-
(Ashok Chawla)
Chairperson
104