PRIYA PASSI vs VATIKA ONE ON ONE PVT. LTD.

HARERA GUl?UGl?AM BEFORE THE HARYAN Priya Passi Resident of: B-8, Kailash Apartments, Lala Lajpat Marg, New Delhi, 110048 : , : :i::: M/s Vatika One on One Private.

Regd. office: Flat no.

22A,2"d f7 Nehru Place New Delhi South D CORAM: Shri Ashok Sangwan APPEARANCE: Sh.

Gaurav Gupta (Advocate) Sh.

Anurag (Advocate) 1,.

The presernt complaint has section 31 of the Real Estate I short, the Act) read with rule and Development) Rules, 2017 77(4)[a) of the Actwherein it is be responsible for all obligatio provisions of the Act or the rul the allottee as per the agreeme t for sale executed inter se.

Page 1 of25 Complaint No.

2330 of Z02Z REAI ESTATE REGULATORY AUTHO ; GURUGRAM mplaint no. of filing complaint date of hearing of decision 2330 of 2022 27.05.2022 02.09.2022 03.07.2024 Complainant Respondent Member To I Complainant Respondent filed by the complainant/allottee under lation and Development) Act, 2016 fin B of the Haryana Real -Estate fRegulation in short, the Rules) for violation of section nter alia prescribed that the promoter shall , responsibilities, and functions under the and regulations made there under or to ffiLIAIIEBE ffi"- eunuennM A.

2.

Complaint No.

2330 of 20ZZ Unit and proiect-related details The particulars of the proje'ct, the details of sale consideration, the amount paid by the complainants, the date of proposed handing over of the possession, and the delay period, if any, have been detailed in the following tabular form: Sr.

No.

Particulars Details 1.

Name and location of the aloject "One on One, Phase 1", Sector-16, Gurugram 2.

3.

Nature of the project Commercial complex Area of the proiect ,1213125 acres 4.

RERA regisrered/ n-:#fr registered and validity status I iLr'irj ffi$.!istered ffiz of zo1.T dated zo.og.zo17 valid 5.

Booking Date 29.1,2.201.4 {pqg.

30 of complaintJ 6.

Allotment Letter 23.01.2015 fpage 34 of complaintJ 7.

Old unit no.

218, Block 4, admeasuring 500 sq.ft. [super area) fpage 37 of complaint) 8.

New unit no. w unit no.

625, 6th floor, block 4- vide letter dated 03.08.2015 fpage 36 of complaint) 9.

Date of buyer agfeem,eht Not executed 10.

Possession Clause Not available L1.

Due date of possession 23,47,2A18 (Deeemed to be 3 years from the date of allptingnt letter in view of "Fortune Infrastructire and Ors. vs.

Trevor D'Lima and Ors." (L2.03.2018 - SC); MANU/SC /0253/201P,) 1,2, Basic sale consideration Rs.4l-,25,000/- (As per allotment letter at page 34 of complaint') 13.

Amount paid by the complainant Rs.34,22,364 /- (p"gu 37 of complaint) 74.

Occupation certificate Not obtained 1.5.

Offer of possession Not offered 1,6, Assured return clause "The unit has been allotted to you with an assured monthly return of Rs.

Page 2 of 25 lv B.

3. ffiHARERA ffi*eunuenAnt Facts of the com The complainant has aJ That on the basis of Complaint No.

2330 of ZOZZ and assurances ofthe respondent, lroject "One on One", Sector 16, the cornplainant bookecl r Gurugram on 29.1"2.201,+ b) Based on the application for allotment. y the complainant, the respondent allotted unit no.

18, block 4, admeasuring 500 sq. ft (super areal in the said project.

H 625,block 4 vide letter da letter dated 23.01-.2015, complerinant- ', the unit was later changed to unit no. (i) Assured monthly return pletion of building. of Rs L37.22/- per sq. ft. payable till com- 03.08.2015.

Further, by way of allotment llowing assurances were made to the 737,22/- per sq. ft. payable tilt completion of the building. a) Post completion of the building an amountequivalent toRs.

130/- per sq. ft. super area of the unit per month shall be paid as committed return from for upto three years from the date of completion of construction of the said commercial unit, or till the said unit is put on lease, whichever is earlier.......,, es per allotment letter page ZT of Objection execution agreement complaina .1.2.201,5 44 of complaint) Amount returns compl Page 3 of25 Rs.

3 of25 Rs.30,87,450 /- HARERA GUl?UGl?AM [iii) Obligation of the developer to lease the premises of which the flat is part @ Rs.130 /- per sq. ft. if the achieved rental is less than Rs.

130/- per sq. ft. then a refund of Rs.133 per sq. ft. for every Rs.1/- by which rental is less than Rs.130sq. ft. (iv) If the achieved rental is between Rs 130/- per sq. ft and Rs lso/_ per sq' ft., then you will be liable to pay additional sale considera- tion @Rs.

66.5 per sq. ft. fRupees Sixty-six paisa Fifty) for every ru- pee of the additional rental achieved. [v) If the achieved rental is above Rs 150/- Ps. ft. then you will be liable to pay additional sale consideration as per the following calcula- tions: il Rs 1330/- per sq. ft.l'(nupees Thirteen Hundred thirty only) for achieving a lease rr:ntal till Rs tiO 1- per sq. ft. ii) Plus Rs.

86.5/- per sq. ft. ro. every nrpee of additional rent above Rs 150/-. (vi) No maintenance charges foi the period up to which property is leased out. (viiJ Rental security deposit and rental advance as would be recovered from incoming lessees paid on receipt. fviii) The flat would be completed and ready for lease by March 201.7 . cJ The complainant paid total sale consideration of Rs.34,22,364/- were paid via cheque no.

900448.

Further, the payments were acknowledged by the respondent vide letters dated 31.1,2.201,4 and 04.ol.zo1,s. dJ The builder buyer agreement received by the complainant on 11,.12,2015 for signing was in iomplete contravention to the terms agreed in the allotment letter dated 23.01.2015.

It was completely blank with respect to the clause on the assured return and the complainant made changes according to allotment letter dated 23.01..2015.

The complainant then sent back the builder buyer agreement with the corrections according to terms agreed in the allotment letter, however the builder buyer agreement was not sent back by the respondent with the incorporated/suggested changes. on 15.12. on 15.12.2015 the complainant through email brought to the notice of the respondent the discrepancies in the proposed builder buyer agreement.

Furthermore, the (ii) Post completion of the building an amount equivalent r per sq. ft. super area per month as committed return years from completion of construction.

2330 of Z0Z2 to Rs.

L30/- Lforupto3 Page 4 ofZS ffiHARERA ffi- GUnU0IAM Complaint No.

2330 of Z02Z builder buyer agreement was kept blank.

Furthermore, the Clause L7 of the builder buyer agreelment added the words: "such policy of the developer may chonge from time to time where the Developer may withdraw the assured return scheme.,, e) As thtl language of the said BBA was contrary to agreed terms in the allotment letter dated 23.or.zo1,s, the comprainant categoricaily requested Mr.

Vinay from the sales team of the respondent to amend the builderr buyer agreement and after assurance filled the blank spaces accorcling to the allotment letter datea 23.01,.2015, so that it can be executed at the earliest.

Fuither, on 19.0 1,.201,6 and 22.02.2016 the complainant received two letters to execute the unchanged builder buyer agreement which was partially blank and contrary to the terms agreecl in the allotment letter dated 23.01.2015 with respect the said unit.

The respondentvide Ietters dated 19.01,.201,6 and zz.oz.2o16 even threatr:ned the complainant with termination of the booking and refund the amount paid by the complainant after deduction of earnest money, brokerage and othei non-refundable charges in case the incomplete and arbitr;rry builder buyer agreement was not signed and returned within 30 days.

The complainant again Wrote to Mr.

Vinay from the sales team of the respondent on 14.06.2016 highlighting that the amended builder buyer agreement as per the terms of the allotment letter dated 23.01.12015 has been duly signed and sent. and sent.

Furthermore, the complainant highlighted th4t relationship manager constantly called inquiring about the reason for amendment of the builder buyer agreement, however there was no response from the respondent.

The conduct of the respondent clearly shows a lack of will to execute the builder buyer agreement as per the agreed terms of the allotment letter with the complainant. complainant highlighted the fact that assured return promised in the Page 5 of25 4t ffiHABERA ffi.eunuenn f) vide emails dated 31.10.2018 and 30.11.2018 the respondenr highlighted the difficulty in continuing with the assured returns promised and cessation of selling properties with assured returns.

Further, the respondent promised that the said unit would be leased by ]une 201,9 and once it is done, all the accounts would be reconciled, all dues would be settled.

It is pertinent to mention that the respondent stopped the payment of assured returns to the complainant in October 2018, in contravention of allotment letter dated 23.ol.zors. gJ vide emails dared 14 o1.z\l.g and o}.o7.2o1,g, the respondenr communicated about recdnciliation of the accounts.

Further, respondent also sent an iddendum agreement which completely omitterd the assured return clause and added collection charges of 5% per mr:nth on the rentals, contrary to the terms agreed in the allotment letter dated 23.01.2015.

Therefore, the complainant did not sign the agreernent which altered the original agreed terms. h)The complainant's husband vide e-mail dated 05.03.2020 asked about assured returns which were same as that promised to the complainant.

It is pertinent to mention that the case of the complainant as well as her husband with respect to assured returns paid are identical and terms of allotment letter dated 23.01,.2015 are identicar as well. i) That the respondent vide e-mail dated OL.O5.2O2L, raised a demand of Rs. and of Rs.9,2z[,000/- against the said unit and even threatened with penal interes;t of 1,Bo/o in case of delay. j) Vide e-mail dated 28.06.2021, complainant's husband enquired about the promise of assured return @Rs.137.22 per sq, ft. and achieving less rental than as agreed in the allotment letter dated 23.01,.2015.

Further the cornplainant's husband also requested the husband to adjust the demand against previous dues by the respondent.

2330 of Z0ZZ Page 6 of25 v ffiHARERA ffi- GURUGRAM Complaint No.

2330 of ZOZZ kJvide e-mail dated zg.1-r.zoz1, the respondent acknowredged query C.

4. respondent as per the assured returns promised in terms of allotment letter dated 23.O1..ZOIS. l) The relspondent vide e-mail dated 11,.0g.2021 apprised the complainant about the status of the project and occupancy certificate granted. vide e-mail dated 07.1,0-202L,the respondent informed the complainant that the said project has been leased to "Google India Services pvt.

Ltd.,, Further, achieved rent,r with the tenant is Rs.115/- per sq. ft.

It is pertinent to mention that crause(b) read with clause (b)t1) of the allotment letter dated zs.br.20r5 assures an achieved rental and obligation of respondent to provide rental lease of minimum Rs.1 30/- per sq. ft.

Therefore, respondent is supposed to pay refund due to achieving less rental.

The amount of refund, complainant is entitled to due to achieving less rentals is Rs.L, TZ,SO0 /-. m] The respondent had stopped the payment of the assured return of Rs.68,610 /- per month from October zll}.Till date no assured return has br:en paid by the respondent as agreed in the allotment letter dated 23.01.2015.

Therefore, till Decembe r zo2l, a principle of Rs.26,75,790/- has been accrued.

At 18 percent simple interest the amount of total interest on the principal amount is Rs.B,02,sTS/_.

Therefore, a total outstanding amount of Rs.34,78,36s/- is pending from the respondent. espondent.

Relief sought by the complainants: The complainant has sought the following relief(s): i.

Direct the respondent to pay a delay interest @1}o/o per annum for not completing and delivering the said unit within the time frame agreed in allotment letter dated 23.}].?OLS. raised by the complainant with respect to amount due from the PageT of25 .t/ ffiHARERA ffi-cl,lnucRAtd Complainr No.

2330 of Z02Z ii' Direct the respondent to pay assured return for the pending 39 months @1'37 '22 per sq. ft. for the said unit which amounts to a total of Rs.26 ,7 5 ,Z g0 / -. iii' Direct the respondent to pay the refund for achieving less rental than stipulated in the allotment letter.

The total refund amounts to Rs.'L.,72,000 /- iv' Direct the respondent to pay assured rental @Rs.1 30 /-per sq. ft. for the said unit till the tenant starts paying the rental.

The total amount of monthly payment for the said unit amounts to Rs.65,0 oo /_ per month. v.

Direct the respondent to pay penal interest @1,8o/o on assured return due till date i.e., Rs.B,oZ,STS/-. vi' Direct the respondent to execute builder buyer agreement as per the terms agreed in the allotm€nt letter dared 23.ot.zoLs. vii.

Direct the respondent to nhnalre. porr.rrion of the said complete in all 5. aspects. viii' Direct the respondent not to levy holding charges on the complainant. ix.

Direct the respondent to pay Rs.5,oo,0oo/- for mental agony and harassment. x.

Direct the respondent to pay Rs.2,00,0 00 /- as litigation expenses to the compLtinant. xi.

Impos,e penalty on the respondent for contravention of Section 1 1( ) ta) of the IRERA Act,20L6. xii.

Pass any other direction as the Authority may deem fit.

On the date of hearing, the authorily explained to the respondent/promoter about the contraventions as alleged to have been committed in relation to Section 11(4) of the Act to plead guirry or not to plead guilty.

Reply by the respondent. espondent.

The respondent contested the complaint on the following grounds: a) That the complainant has filed the present complaint for assured return and this Authority has no jurisdiction to entertain the present complaint as in the cases of assured return, this Hon'ble Court has no jurisdiction, as has lleen decided by this Authority in complaint case no.

175 of ZOIB, D.

6. r' titled as sh.

Bhram singh vs. venetian LDF projects LLp.

Page B of25 ffiHABEBA ffi-eunUGRAM Complaint No.

2330 of 2022 b) That a reading of the entire complaint on a demurrer reveals that the true nature of the relief sought is specific performance of the assured returns commitment.

It is respectfully submitted that relief of specific performance flows from the Specific Relief Act, 1,963 and no part of the Real Flstate (Regulation and Development) Act, 2016 clothes this Hon'ble Authority to exercise powers under Specific Relief Act, 1,963.

Therefore, this Hon'ble Authority not being a civil court could not assert to itself the jurisdiction to grant specific performance of assured returns which is a relief under the specific Performance Act, 1963. c) That the Complainant had booked a commercial shop space on 29.12.2014 and the respondent-allotted a unit no.

218, admeasuring 500 sq. ft. in the project "one on one" situated at Sector- 16, Vatika 0ne on One, Gurugram being deveio!ed by the respondent vide allotment letter dated 1,.3.01..2015. d) That the allotment letter dated 23.01,.2015 stipulated some terms and conditions with regard to the said commercial space.

That there was a further stipulation in the allotment letter that the timely completion of the project is subject to timely payment by the allottee and delay in con- structircn can occur for reasons beyond the control of the respondent. e) That thre construction of the said commercial space was proposed to be completed by March 2017 'by the respondent, within 36 months from the date of receipt of the approval of building plans or th lans or the date of receipt of the approval of the Ministry of Environment and Forests, Government of India for the project or execution of builder buyer agreement, which- ever is later.

0 That the terms and conditions set out in the allotment letter/agreement were accepted by the complainant and he agreed to comply with the / Page 9 of.25 ffiHARESA ffi"eunuenntil Complaint No.

2330 of Z0ZZ same" No grievance had been raised qua the agreed terms and condi- tions of the agreement nor can it be raised at this stage as parties have already acted upon the agreement. g) That the complainant learned about the assured return scheme and was willing and ready to pay the entire sale consideration to reap benefits of assured return upon his own judgment and investigation.

Further, the complainant paid the part sale consideration amount of Rs.34,2 2,364/- towards the total agreed sale consideration. h) That the complainant herein was very well aware of the fact that the commercial unit in questio, *at subject to be leased out post its com- pletion and same was menil;ilad';id agreed by the complainant in the .,.] allotment letter. i) That the said application form clearly stipulated provisions for lease and admittledly contained a lase clause.

That the said allotment letter does not have , porr"irion clause for physical possession.

That it can be con- cludecl herein that the complainant is not a consumer or allottee.

The relationship between the complainant and the respondent is not that of a builder-buyer.

The complainant is an investor and seeks speculative gains. j) That various reminders weie sent to the complainant including letters dated 19.01,.2016 and 22.oZ.Zol-6.

Thus, the complainant has defaulted in his r:ontractual obligations and is merely trying to wriggle out of the contract. kl That the respondent herein had been paying assured return of Rs. urn of Rs.68,610 f - every month to complainant in lieu of advance payments received in respect to a unit booked in the project without any delay.

Upon coming into force of the BUDS Act, any such unregulated deposits which are not approve(l has become illegal and continuing the same ,l/ Page 10 of25 ffiHABESA ffi* eunl.lGRAM Complaint No.

2330 of Z0Z2 shall expose the respondent to strict penal provisions of the Act.

There- fore, enactment of the BUDS Act forced the respondent to discontinue the payment of assured returns. l) that the Hon'ble High Court of Punjab & Haryana in CWp No.26740 of 2022 titled as "Vatika Limited Vs.

Union of India & Ors.", took cognizance in respect of Banning clf Unregulated Deposits Schemes Act, 2OI9 and restrained the Union of'lndia and State of Haryana from taking coercive steps in criminal cases registered against Company for seeking recovery against deposits till the next date of hearing. m) That the complainant has already received an amount of Rs.30,8 7 ,4SO /- as assured return as agreed by die iespondent under the said agreement up to September 2018. n) Furthr-'rmore, the pfoject was hindered due to force majeure reasons be- yond the control of the respondent such as direction of Hon'ble National Green Tribunal, Ehvironment Pollution Control Authority, Haryana State Pollution Control Board, Commissioner Municipal Corporation Gurugram, Hon'ble supreme court, covid 1,g pandemic, etc. which caused a delay in completion of the project.

7.

Copies of all the relevant documents have been filed and placed on the record.

Their authenticity is not inldiSpute.

Hence, the complaint can be decided based on these undisputed documents and submission made by the E.

B. complainernt. furisdiction of the authority: The authority observes that it has territoriar as well as jurisdiction to adjudicate the present complaint for the below.

E. below.

E.

I Territorial jurisdiction subject matter reasons given ry Page 11 of25 HARERA W-GUI?UGI?AM 9' As per notification no.

1/92/2017-ITCP dated 1,4.1.2.2017 issued by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be the entire Gurugram District for all purposes with offices situated in Gurugram.

In the present case, the project in question is situated within the planning area of Gurugram district.

Therefore, this authority has complete territorial jurisdiction to deal with the present complaint.

II Subject matter jurisdiction 10'section 11(+)ta) of the Act,20L6,provides that the promorer shall be responsible to the allottee as per the agreement for sale.

Section I1,(4)(a) is reproduced as hereunder: Section 11@)(a) ,,, '' ' .

Be responsible for atl obtigations, responsibilities and functions under the provisions of this Act or the iutes and regulations made tihereunder or to the ailottees as per the agreemrit yo, sale, or to the association of altottees, as the case may be, till tie conveyance of all the apartments, plots or buildings, ai tne case may be, to the allottees, or, the common orees to the associatfon oy illottees or the competent authority, as the case may be; Section 34-Functions of the Authority: 3t4(fl of the Act provides to ensure compliance of the obligations cast upon the promoters, the allottees and the reol estate agents under this Act and thrt rules and regulations made thereundir, 11.So, in view of the provisions of the Act quoted above, the authority has complete lurisdiction to decide the complaint regarding non-compliance of obligations by the promoter leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainants at a later stage.

F.

Findings on the obiections raised by the respondent: F.I obiection regarding maintainability of complaint on account of complainant being an investor.

12. estor.

12.

The respondent took a stand that the complainant is an investor and not a consumer and therefore, she is not entitled to protection of the Act and thereby not entitled to file the complaint under section 31 of the Act.

2330 of Z0ZZ Page 12 of 25 / HARER& GURUGl?AM Complaint No.

2330 of Z02Z However, it is pertinent to note that any aggrieved person can file a complaint against the promoter if he contravenes or violates any provisions of the Act or rules or regulzttions made thereunder.

Upon careful perusal of all the terms and conditiotts of the allotment letter, it is revealed that the complainant is a buyer, and he had paid a considerable amount to the respondent-promoter towards purchase of unit in its project.

At this stage, it is important to stress upon the definition of term allottee under the Act, the same is reproduced below for ready reference: "2(d) "ellottee" in relatian to a rbal,estate project means the person to whom a:plot:,,.a,patitment or building, as the case may be, has been ailot:ted, sord (whethei as free- hold or leasehord) or othbrwise transferred by thi pro- moter, and includeq the person who subsequentry ac- quires the said allotment Lniougn sak, tranifer oi oth- erwise but does not include o person to whom such plot, apartment or building, as the case may be, is given on rent;" L3. ln view ol'the above-mentioned definition of "allottee" as well as all the terms and conditions of the allotment letter, it is crystal clear that the complainant is an allottee as the subject unit was allotted to him by the promoter.

The concept of investor is not defined or referred to in the Act.

As per the definition given under section 2 of the Act, there will be "promoter" and "allottee" and there cannot be a party having a status of "investor", Thus, the contention of the promoter that the allottee being investor is not entitled to protection of this Act also stands rejected.

F.lI Obiections regarding force Maieure.

14. ieure.

14.

The respondent-promoter has raised the contention that the construction of the unit of the complainant has been delayed due to force majeure circumstarlces such as orders passed by the Hon'ble NGT, Environment Protection Control Authority, and Hon'ble Supreme Court.

The pleas of the respondent advanced in this regard are devoid of merit.

The orders passed were for a very short period of time and thus, cannot be said to impact the ,/ ffi ffi {iqq{ qq* Page 13 of25 HARERA W-GUI?UGI?AM Complaint No.2330 of Z0ZZ respondent-builder leading to such a delay in the completion.

Furthermore, the respondent should have foreseen such situations.

Thus, the promoter respondent cannot be given any leniency on the basis of aforesaid reasons and it is a well-settled principle that a person cannot take benefit of his own wrong' Furthermore, the respondent seeks an extension in the timeline for due date of possession in view of the Covid L9 pandemic. on perusal of records brought before this Authority, it is of the view that the allotment of the unit was done on 23.01 .201,5 though no specific timeline was specified as to the due date of handing over of possession, therefore, in view of " Fortune Infrostructure and brs. vs.

Trevor D,Lima and ors. (12.0s.2018 'sc); MANU/sc/LzsJ/2078' wherein rhe Hon,ble Apex court observed that: "ct person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled tct seek the refund of the amount paid by them, arong with compensation.

Although we are aware of the fact that when there was no delivery period stipulated in the agreemenl q reasonable time has to be taken into consideration.

In the facts and circumstances of this cese, e ti'me period of 3 years would have been reasonable for cctmpletion of the contract.', 15.

The due date of possession had to be calculated from the date of allotment, therefore the due date becomes 23.01.201,8. .01.201,8.

Therefore, the plea advanced in view of Covid 19 pandemic has no merit since the due date of possession for the c,cmplainant's unit was much prior to the occurrence of the pandemic.

F.III Pendency of petition before Hon'ble Punjab and Haryana High Court regarding assured return L6.

The respondent has raised an objection that the Hon'ble High Court of Punjab & Haryana in CWP No.26740 of 2022 titled as "Vatika Limited Vs.

Union of India & ors.", took the cognizance in respect of Banning of Unregulated Deposits Schemes Act, 201,9 and restrained the Union of India Page 14 of 25 v HARER& GUl.?UGl?AM Complaint No.

2330 of 2022 and the State of Haryana from taking coercive steps in criminal cases registered against the Company for seeking recovery against deposits till the next date of hearing.

17.

With respect to the aforesaid contention, the authority place reliance on order dated 22.1,1,.2023 in CWP No.

26740 of 2022 [supraJ, whereby the Hon'ble Punjab and Haryana High court has stated that ",.ihere is no stay on odiudication on the pending civll appeals/petitions before the Real Estate Regulatory Authority as also against the investigating agencies and they are at tiberty to proceed further in the (,ngoing matters that are pending with them.

There is no scope for aiy fiiini,er clarificatron." Thus, in view of the above, the authority has decided to proceed further with the present matter. ' :: t '""t' ,; G.

Findings on relief soughtby lhe oomplainants.

G.l Direct the respOndent t, pHy a delay interest @lr}o/oper annum for not in allotment letter dated 23.0L.2015.

G.ll Direct the respondent to pay assured return for the pending 39 months @137.22 per ,sQ. ft.' for lhe said unit which amounts to a total of completing and delivering the said unit within the time frame agreed Rs.2t5,75,790 / -.

G.lll Direct the respondent to liay the refund for achieving less rental than stipulated in the allotment letter. nt letter.

The total refund amounts to stipulated in the allotment letter.

The total refund amounts to RsL,72,OOO / - G.IV Directtheresp.,onf,entton{[email protected]/-persq.ft.forthe said unit till the tenaqt starts paying the r.ental.The total amount of monthly paym',5,ndr[ot tHe Caid ufliit ariiouniCto Rs.65,000 /- per month.

G.V Direct the responden!,to*Pay penal l.n-terest @Lgo/o on assured return due till date i.e., Rs.8,02,575/-._ G.VI Direct the respondent to execute builder buyer agreement as per the terms agreed in the allotment letter dated 23.01.207^5.

G.VII Direct the respondent to handover possession of the said complete in all aspects.

18.

The common issue with regard to assured return, delay possession charges, and execution of builder buyer agreement is involved in the aforesaid complaint.

I.

Assured returns L9.

The complainant is seeking unpaid assured returns on monthly basis as per allotment letter dated 23.01..2015 at the rates mentioned therein.

It is Page 15 ofZS { ffiHARERA W-GURUGnAM Complaint No.

2330 of 2022 pleaded that the respondent has not complied with the terms and conditions of the said addr:ndum to builder buyer agreement.

Though for some time, the amount of assured returns was paid but later on, the respondent refused to pay the same by taking a plea that the same is not payable in view of enactment of the Banning of Unregulated Deposit Schemes Act,201,9 (hereinzrfter referred to as the Act of ZO19), citing earlier decision of the authority (Brhimjeet & Anr.

Vs.

M/s Landmark Apartments Pvt.

Ltd., complaint no L41 of 2018) whereby relief of assured return was declined by the authority.

The authority has rejected the aforesaid objections raised by the respondent in cR/8001/z0zz titted as Gaurav Kaushik and anr.

Vs, Vatika itd, wherein the authority while reiterating the principle of prospeitive ruling,,has held that the authority can take different l'iew from the earliei one on the basis of new facts and law and the pronounceme ronouncements made by the apex court of the land and it was held that when payment of assured returns is part and parcel of builder buyer's agreement (maybe there is a clause in that document or by way of addendunl, memorandum of understanding or terms and conditions of the allotment of a unitJ, then the builder is liable to pay that amount as agreed upon and the Act of 20tg does not create a bar for payment of assured returns e\ren after coming into operation as the payments made in this regard are protected as per Secti on2(4)(l)(iii) of the Act of ZOlg.Thus, the plea advanced by the respondent is not sustainable in view of the aforesaid reasoning and case cited above.

20.

The monev was taken by the builder as deposit in advance against allotment of immovable property and its possession was to be offered within a certain period.

However, in view of taking sale consideration by way of advance, the builder promised certain amount by way of assured returns for a certain period.

So, on his failure to fulfil that commitment, the allottee has a right to Page 16 of25 t/ HABES& GURUGRAM Complaint No.

2330 of Z02Z approach the authority for redressal of his grievances by way of filing a complaint.

21' The builder is liable to pay that amount as agreed upon and can,t take a plea that it is not liable to pay the amount of assured return.

Moreover, an agreement defines the builder/buyer relationship.

So, it can be said that the agreement for assured returns between the promoter and allotee arises out of the sanle relationship and is marked by the original agreement for sale.

22'It is not disputed that the respondent is a real estate developer, and it had not obtained registration under the Act of 201,6 for the project in question.

However, the project in which.,thei advance has been received by the developer from the allottee is an ongoing project as per section 3 [1) of the Act of 201,6 and, the same would fatt,within the jurisdiction of the authority for giving the desired e desired relief to the complainant besides initiating penal proceedings.

So, the amount paid by the complainant to the builder is a regulated deposit accepted by the latter from the former against the immovable property to be transferred to the allottee later.

In view of the above, the respondent is liable to pay assured return to the complainants- allottees in terms of the allotment letter dated 23.01,.201,s.

II.

Delay possession charges.

23.1n the present complaint, the complainant intends to continue with the project and are seeking possession of the subject unit and delay possession charges as provided under the provisions of Section 1B(1) of the Act which reads as under: "Section 78: - Return of amount and compensation 18(1).

If the promoter fails to complete or is unable to give pos- session of an aporhment, ptot, or buildig, Provided thatwhere an allottee does not intend to withdraw from the proiect, he shall be paif, by the promoter, interest for every month of delay, till the handling over of thepossession, at such rate as may be prescribed." PagelT of25 { HARERA GURUGl?AM Complaint No.

2330 of Z0ZZ 24.The subject unit was allotted to the complainant vide allotment letter dated 23.01.20 [5.

However, builder buyer agreement was not executed between the partiers.

The due date ol'possession had to be calculated from the date of allotment in view of "Fortune Infrastructure ond Ors. vs.

Trevor D,Lima and ors. (12.03.20t8 - sc); MANU/sc/Lzss/20ls.,, Accordingly, rhe due date of possession comes out to be 23.01.2018.As per the allotment letter, the respondent developer was under an obligation to further lease out the unit of the complainant post completion.

25' Admissibility of delay possession charges at prescribed rate of interest: The complainant i, st .tiil$ delay possession charges. proviso to ... iso to ...

Section 18 provides that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing ovejr of possession, at such rate as may be prescribed and it has been prescribed under Rule L5 of the Rules. ibid.

Rule 15 has been reproduced as under: "Rule 15.

Prescribed rate ofinterest- [Proviso to section 12, section L8 and sub-sectlon (+) and subsec:tiin (7) of section 1"9] For the purpose of proviso to section 1.2; section 1-B; and sub-sec- ,lions (4) and (7) of section 19, the "interest at the rate prescribed" :;hall be the State Bank of India highest marginal cost of lending rate +2%0.: .Provided that in case the $tate Bank of lndia marginal cost of lend- ing rate (MCLR) is not in use, it shall be replaced by such bench- mark lending rates which the stste Bank of India may fix from r:ime to time for lending to the general public." 26.The legislature in its wisdom in the subordinate legislation under the Rule 15 of ther Rules, ibid has determined the prescribed rate of interest.

Consequently, as per website of the State Bank of India i.e., https:/./sbi.co.in, the marginal cost of lending rate [in short, MCLR) as on date i.e., 03.O7.ZOZ4 is 8.95%.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +20/o i.e., L0.950/o.

27.The definition of term 'interest' as defined under Section Z(za) of the Act provides that the rate of interest chargeable from the allottee by the Page 18 of25 HARERE ffiGUI?UGIIAM Complaint No.

2330 of Z0ZZ promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default.

The relevant section is reproduced below: "(za) "interest" means the rates of interest payable by the pro_ moter or the allottee:, as the case may be.

Explanation. planation. -For the purpose of this clause_ the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default; the interest payable by the promoter to the allottee shall be from the date the promoter received the amount or any part thereof till the date the amount or part thereof and interest thereon is re- funded, and the interest payable by the allottee to the promoter sholl be from the dat:e the:allottee defaults in payment to the pro- moter till the date it is paid;" 28.

On consicleration of documents available on record and submissions made by the complainant and the respondent, the authority is satisfied that the respondent is in contraventiofiiof the provisions of the Act.

The possession of the subject unit was to be completed within a stipulated time i.e,, by 23.01,.2018.

29.

However now, the proposition before it is as to whether the allottee who is getting/entitled for assured teturp even after expiry of due date of possession, can claim both the assured return as well as delayed possession charges?

30.

To answer the above proposition, it is worthwhile to consider that the assured return is payable to the allottees on account of provisions in the BBA or an addendum to the BBA.

The assured return in this case is payable as per "Addendum to builder buyer agreement".

The rate at which assured return has been committed by the promoter is Rs.

137 .22 /- per sq. ft. of the super area per month till the completion of the building which is more than reasonable in the present circumstances.

If we compare this assured return with delayed possession charges payable under proviso to Section 1B(1) of the Act, 201,6, the assured return is much better i.e., assured return in this Page 19 of 25 '1/ HARERA ffi-GU|?UGI?AM Complaint No.

2330 of Z0Z2 case is payable at Rs. ble at Rs.6B,6 tA / - per month till completion of building whereas the delayed possession charges are payable approximately Rs.

30,94 3.87 /- per month.

By way of assured return, the promoter has assured the allottee that they' would be entitled for this specific amount till completion of construction of the said building.

Moreover, the interest of the allottee is protected even after the completion of the building as the assured returns are payatlle even after completion of the building.

The purpose of delayed possession charges after due date of possession is served on payment of assured return after due d:rte of poslession as the same is to safeguard the interest of the allottee as theii money is continued to be used by the ':: promoter even after the promised due date and in return, they are to be paid either the assured return or delayed possession charges whichever is higher, '' ' .' '' i: ' 3L.Accordingly, the authority decides that in cases where assured return is reasonable and comparable with the delayed possession charges under Section 18 and assured return is payable even after due date of possession till the date of completion of the project, then the allottees shall be entitled to assured return or delayed possession charges, whichever is higher without prejudice to any other remedy including compensation.

32.

On consideration of the documents available on the record and submissions made by the parties, the complainanis have sought the amount of unpaid amount of assured return as per the terms of allotment letter.

As per the allotment letter dated 23.01,.2015, the promoter had agreed to pay to the complainant allottee Rs.137.22/- per sq. ft. on monthly basis till completion of the building.

The said clause further provides that it is the obligation of the respondent promoter to lease the premises.

It is matter of record that the assured return was paid by the respondent-promoter till September 2018 at the rate of Rs.

1 37 .22 /- per sq. ft. er sq. ft., but later on after Septemb er 2018, Page 20 oizl / HARERA W-GUI?UGRAM Complaint No.

2330 of 2022 the respondent refused to pay the same by taking a plea of the Banning of Unregulated Deposit Schemes Act, 201,9.

But that Act of 2olg does not create a bar for payment of assured returns even after coming into operatiotr and the payments made in this regard are protected as per Section 2[4)(iii) of the aboye-mentioned Act.

33.

In the present complaint, the Authority finds ambiguity as to whether the OC/CC fcrr the block in w'hich unit of complainant is situated has been received by the promoter or not.

Consequently, during the last hearing dated 29.05.2024,the Authority directed the respondent to furnish a copy .,.r,'r i of occupation certificate and a Cg-nf b,.f.Iease deed, in case, the unit is further leased out to any third party.

However, despite given the sufficient time to the respondent, nothing has been placed on record till date by the respondent.

34.

Therefore, the authority is of the view that the construction cannot be deemed to complete until the OC/CC is obtained from the concerned authority by the respondent promoter for the said project.

Thus, considering the facts of the present case and documents placed on record by both the parties, the respondent is directed to pay assured return at the agreed rate i.e., @ Rs.137.22/- per sq. ft. per month from the date the payment of assured return has not been paid i.e., October 2018 till the date of completion of the building and thereafter Rs.

130/- per sq. ft. per month till first 36 months after completion of the proiect or till the date said unit is put on lease, whichever is earlier.

Further, in case the unit in question is leased out by the respondent at the rate lower/higher than as is fixed by the respondent, the respondent is obligated to settle the same in trerms of the allotment letter dated 23.01.201,5.

35.

201,5.

The respondent is directed to pay the outstanding accrued assured return amount tiill date at the agreed rate within 90 days from the date of this order PageZL of25 HARERA ffi-GURUGI?AM Complaint No.

2330 of 2022 after adjustment of outstanding dues, if any, from the complainant and failing which that amount would be payable with interest @ 8.950/o p.a. till the date r:f actual realization.

III.

Execution of Builder Buyer Agreement 36.

A project by the name of One on One situated in Sector L6, Gurugram was being developed by the respondent.

The complainant came to know about the same and booked a unit in it for Rs.41,25,000/- against which he paid an amount of Rs.34,22,364/-.

The complainant has approached the Authority seeking relief w.r.t. execution of buyer's agreement inter se parties.

I'he Authority observes'thq,,!.the unit was booked under assured return scheme and the complainant has already paid more than lOo/o of the 37.

However, despite receipt of almost entire consideration amount against the booked unit except stamp duty and other charges payable to the governmr-'nt and even after receipt of RERA registration back in 20\7,the respondent-promoter has failed to enter into a written agreement for sale with respect to the same and has failed to get the plot registered in name of the complainant till date.

Thus, in view of Section 1 1(a) [a) read with Section L3 of the Act of 201,6, the respondent-promoter is directed 1.o enter into a registered agreement for sale with the complainant w.r.t. the unit in question within a period of one month and handover possession of the allotted unit to him in the said project after obtaining:, CCfpart CC from the competent authority in terms of the allotmenl. letter dated 23.01,.201,5.

G.VIII Direct the respondent not to levy holding charges on the complainant.

38.

In the case of Varun Gupta vs Emaar MGF Land Limited, Complaint Case no.4031 of 2OL9 decided on 12.08. on 12.08.2021, the Hon'ble Authority had already decided that the respondent is not entitled to claim holding charges ,/ Page 22 of 25 HARERA W-GUI?UGI?AM Complaint No.

2330 of Z02Z from the complainants at any point of time even after being part of the builder buyer agreement as per law settled by the Hon'ble Supreme Court in Civil Appeal nos.

3864 -3899 /2020 decided on l4.l1.ZO20.

The relevant part of same is reiterated as under- "734.

As far as hording charges are concerned, the deveroper having received thet sale consideration has nothing to tosi by holding possession of the allotted Jtat except that it would be required to maintain the apartment.

Therefore, the hotding charges will not be payable to the deveroper.

Even in a case where the possession has been derayed on account of the allottee having notpaid the entire sale consideratioi, the developer shail not be entitred to any hotding charges though it would be eititted:,to intereti yo, thefreriod"the payment is delayed.,, ,, Therefore, the respondent is directed not to levy any holding charges upon G'x Direrct the respondent to pay Rs.2,00,000/- as litigation expenses to the complainant.

39.

The complainants are seeking the above mentioned relief w.r.t. compensation.

The Hon'ble Supreme Court of India in Civil Appeal nos.

6745-6749 of 2021 titled as M/s Newtech Promoters and Developers Ltd.

V/s State of UP & Ors.(supra),'has held that an allottee is entitled to claim compensation and litigation charges'under section s L2, 14,lB and section 19 which is to be decided by the adjudicating officer as per section 71. and the quantum of compensation and Iitigation expense shall be adjudged by the adjudiicating officer having due regards to the factors mentioned in section 72.

The adjudicating officer has exclusive jurisdiction to deal with the complaints in respect of compensation and legal expenses.

H.

Directions issued by the Authority: 40. ority: 40.

Hence, thel Authority hereby passes this order and issues the following directions under Section 37 of the Act to ensure compliance with the respondent. , ,.r,,i'I)'. c.Ix Direct the re$pilnau"j harassment. ' , to pay Rs.5,00,000/- for mental agony and Page23 of25 II.

HAREB& ffi-GUIIUGI?AM Complaint No.

2330 of Z0ZZ obligations cast upon the promoter as per the functions entrusted to the Authority under Section 34(f) of the Act of 201,6: I' The respondent is clirected to pay assured return at the agreed rate i.e., @ Rs.137.22/- per sq. ft. per month from the date the pay_ ment of assured return has not been paid i.e., october 2018 till the date of completion of the building and thereafter Rs.

130/_ per sq. ft. per month till first 36 months after completion of the proiect or till the date said unit is put on lease, whichever is ear- lier.

Further, in case the unit in question is leased out by the respond- ent at the rate lower/higf1.er than as is fixed by the respondent, the respondent is obligated io settle the same in terms of the allotment letter dated 23.0I.20L5.

The respondent is directed to pay the outstanding accrued assured return amount till date along with interest rate of 8.950/oper annum within 90 days from the date of this order after adjustment of out- standing dues, if any, from the complainant and failing which that amount would be payable with interest @ B.9so/o p.a. till the date of actual realization.

The respondent is directed to handover possession of the unit on obtaining the occupation certificate to the complainant, as per the allc,tment letter dated 23.01,.201.5.

The respondent-promoter is directed to enter into a registered agree- ment for sale with the complainant with respect to the unit in ques- tion within a period clf one month and handover possession of the al- lotted unit to him in the said project after obtaining cc/partcc from the competent authority. authority.

The respondent shall not charge holding charges and anything from the complainant which is not the part of the allotment letter. r' Page 24 of 25 III.

IV.

V. ffiHARERA ffi"-eunucRm 41.

Complaint stands 42.

File be consigned to Dated: O3.O7.2024 Complaint No.

2330 of 20ZZ Regulatory Authority, Gurugram Page25 of25