DEEPANKAN GUPTA vs MS ELAN LIMITED

t.

HARERA GUR!GRAlvl BEFORE THE HARYANA REAL ESTATE RECULATORY AUTHORITY, GURUGRAM R/o: - C-8ls, Ground Floor, Ardee City, cate no.

3, Sector-s2, Gurugram-122002.

Date ofdecision 5277 of 2022 2a.07,2022 Office at: 3.: Irloor, Goll View 'l ow. r, Golf Co u rse Road, Sector42, CORAM: APPEARANCE: Caurav Bhardwaj lasmohan Xrishan Ddng Advocate for the complainant Advocate for the respondent ORDER The present complaint has been nled by the complainant/allottees under section 31 ofthe Real Estate (Re8ulation and Developmentl Act, 2016 (in short, the Actl read with rule 28 of the Haryana Real Estate [Regulation and Development) Rulet 2017 (in short, the Rules] for violation of sectioo 11(4)[a) of the Act wherein it is inter atio prescribed that the promoter shall be r€spons,ble for all obligations, responsibilities and lunctions under the provision ot the Act or the C.mnlaint No.

5277 ol 2022 Rules and regulations made there under or to the alloitees as per the agr€ement for sale executed inlerse.

A.

Unitand proiect rolated detalls 2.

The particulars ofunit details, sale consideration, the amount paid by the complainants, date ofproposed handingoverthe possession, delay period, ifany, havebeen deta,led in thefollowing tabuhr form: Comblaint No.

5277 of 2022 I "Elan I'4ercado", Sector-8o, Village- Naurangpur, Cu.ugram, Haryana. ') l.

1 RIM registered Registered 790 0f 20\7 dated 74.09.2017 l-icense no.

34 ol20I4 dated I2.06.2014 Drte olellotment letter 01.06.2019 [As on pase no.32 ofcomplaint) Date of execution of I]BA 20 09 2020 [As on pase no.38 ofcomplaint] 8 SA 1208, Floor-1zrh (As on page no.35 ofcomplaint) ,) Unit area admeasuring 7s0 sq.ft.

ISuperAreal (As on pase no.35 ofcomplaintl 10.

Possession clause as perBBA Clause 71 POSSESSION OF THE PREMISES/UNIT: (o) Schedule lor Possession ol the said The Developer bosed on tE project ptonning untl entnates and sublect to all tust excer)0.n\ lARElA GURUGRA[/ *HARERA S- crnucnrutl endeovouts to. ovouts to.onplete consttuction o[ the 5otd Buildhq/Sotd Unt wlthln d period oI 481 months eith on qtntions ol furttqr teetve I (lzlnonins Jrcn ihe .tot ol thts oqreenen I unless.here shatl be detot ot lanwe due to GovL I deoonnent detoy or due ro a.v "."^*-*'l belond rhe po*er and @a(ol oI the Devetopet ot Force Moteu.e .oldttions includtng bur ot hnted ro reosons nenttoaed tn clout.lltb) and 1 1 t.

I o. due ra toilLrc of rhe Allo@e(t) to po) tn tine the Total considerotion ond other chorss and dues/patnen5 nendoned hths aareenmt I or ury lohrc on the Don ot the Altok\e(\) Lo I ohide by alt or any ol the @.n' aad condtuon oll fiE AgreenenL ln.ose there tsany ddoy o th?l pofi o[.he Allotee\) tn noktng ol potnenB ta rhe Developer then not w hs@nding .iqhr\ avonoble to the Developet elwhere tn ths .ontroct. the oertod oI 'nptenentolian oI the project sholl also be dtqded bt o spon ol tine equiealent to eoch deloron the port of the Alloftee(s) in rcnitting paynent(, to the (As on poae no.

61 of reply) ll Duedateofpossession 20.o9.202s lcalculated 48 months + 12 months from date ofagreemenq 12 24.05.2079 no.

34 ofcomplarnil 1J, Clause for Assured 1. fhot Elon Unt d (herein after rcIerte.l @ os 'conpanJ"), os.ees ond undenokes ta poy to the oppl)cona o Fired Anount of Rt.3o,000/- (Rupees Thiriy Thotson.l Onl!) p.r m th, ||hich is subject to Tax Deduction ot Source, on the provkionul booking in Merca.lo, as the ohounL ol bosic sole price teceited Rt 15,00,004/ (Rupees Filteen Lokh only) recetvel thraugh cheqre No.

0aa007 Doted 10.04.2a 19 and Cheque No.

00041 0 DoLed 22 052019 Dtuwn.n HDFC bdnk (As on Pose no- 34afconploint) 1,1 'l'ot.l sale.onsideration Rs.48,94,500/- (As per allotment letter on page no.32 of complaintl Amount paid by the Rs.55,74,559/' [As per the receipts on the file) Occupatron certificaie 17.10.2022 [As on pase no.72 ofreply) 17 offer of possession for 11.O9.2020 (As on pase no.

55 ofcomplaintl Iu HARERA GURUGRAI\I B.

UGRAI\I B.

3 Facts ofthecompLint 'lhe complainant has made the following submissions in the 1.

That the complainant is a respectable and law abiding citizen and is an allottee within the meaning of sectlon 2 (dl oi lhe ltcal Estate (Regulation and Developmeno Act, 2016.

The responden( company, is a limited company incorporated undcr the Companies Act, 1956 and is inaer o/ia engaged in the busrn.ss ol providing real estate seruices.

I1.

That in 2019, the respondent advertised about development of'ts new commercial project namely 'Elan Mercado" situated in Sector8o, Gurugram, Ilaryana.

The respondent painted a rosy pictur. olthc project in their advertisement representing that dre projecl aims at providing ready to move commercial space a.h.l.'nt N.

5277.f 2022 *IAREIA --(s- Gl]RUGRAll/ tv TII aom.lr,ntN.

5277of 2022 comprisiDg of high street retail with double heights shops, huge muti-activity atrium -space, lower eround floor dedicated to hyp€rmarket and retail shops, one ol the nations la.gen supcrplcx by PVR cincma, muki cuisine renaurant, kids zofc alongwi!h assured rent scheme.

That believing the representations of the respondent and in th. lookout for an affordable commerc'al space the complainant booked a unit in the proiect of the respondent and paid an amount of Rs.1,01,000/- towards the booking oi the unit 'n l'hat thereafter on 01.06.2019, the respondent issucd an allotnrent letter otretailand commercialunit bearing no SA 1208 admeasuring 750 sq.ft. on the 126 floor in the p.oject n.tmely " M ercado ' situated at Sector 80, NH_8, Village N au rangpu r, 'lchsil M:nesar, District Gurugram at the total sale consideratron ol Rs.48,94,500/- to the complainant under special nxed return That fbllowine receipt of aforesaid payments on 240520t9. r lctter consist ol terms and condiiions lo. fixed dnrounl on provisional booking was given by responden! lo conplainart in which a fixed amount oi Rs.

30,00 0/- per month was agrced (o bc g ver ro r\p. er ro r\p.ompldindnr Iill the vdld o'fer oi po*.'\ion. 'l'hat the complainant during the period of 2019 contacted the respondent to execute the builder buyer agreemenr but thl' *HARERA -s- crnrnnlv rcspondcnt failed to execute the same and kept on demanding the moDey on account oi purchase olthe said unit.

The complainant even vehemently asserted that failing execution olagreement, the complainant shall not make any payment to the respondent but the respondent threatened the complainant to canccl thc allotment oi the said and to forfeit the deposited amount. l.clt wrth no other option the complainant has made a payment ol Rs.17,92,323l- to the respondent.

Vll. l hat alnost after more than one year from the date of book'ng and after taking more than 10 percent oatotal sale consideration ol the unit, a builder buyer agreement dated 20.09.2020 was cxecuted between the complainant and the respondent Copy ol the BBA has been submitted to the Financial Institution by the complainant and as such front page ofthe B8A has been attach.d along with the Complaint.

The complainant requcstcd thc respofldent to provide copy of BBA but the same has not bcen provid€d by the respondent..

It is pertinent to mention here that the complainant has paid a total amou.t ofRs.55,74,559/ against the total sale consideration of Rs.48,94,500/ as and u,hcn denranded bythc respondentin l,eu ofthesaid unit.

Vlll.

That On 15.01.2020, the.espondent issued a letter in whicl thc respondent has stated that lhe const.uction has been compLct.d and the occupation certiflcate lor said proje.t has been applied Futuher, the respondent vide the sard lettcr dcnrandcd th.

ComDlaint No 5277 o12022 *HARERA S-aIRUGRAI,I IX x ComDlaint No.

S277 of2022 balance sale consideration within a period 15 days from the issuance of the said letter. id letter. lt is iu(her to note ihat no olfcr ot possession can be made to the Allottec without obtarning occupation certificate from concerned department but thc respondent have illegauy and without considering the payDrent plan issued a demand notice on account of payment ol balance sale consideration due at the time of offer of possession.

Ihe complainant approached the respondent alter .eceiving the said notice and requested to withdraw the same as the prolec! is no where nca. completion and occupation certificate ol lhc projed has not been received but , the respondent .learly rcfuscd to withdraw the same notice and iurther rhr.aten.d rhe complainant fof inposing hold,ng charges. ]'hat on 11.09.2020 the respondent issued an oaler of possession for fit outs whe.eiD the respondent has stated that the construction has bee. completed and the occupation certiticate ol the proje€t has been applied.

That the respondent, after issuing the offe. of possession lbr li( outs without obtain,ng occupanon certificate, stopped making payment on account of Assured Return.

The complainant than approached the respondent to enquire aboutthe non'payment ot Assured Return as the possession has not been offered till yet alter obtaining occupation certificate but to the utter shock ofthc .omplainant, the respondent clearly refused to make th. pry,n{,nl *HARERA !S- crrnrcnnv Cohdl.intN.

5277.f 2022 on account olassured return on the ground ofissuing the ofier of possession for fit outs.

XL That the complainant in order to make the payment of remaining sale consideration took a loan ol Rs.34,70,000/. lrom I,uniab National Ilank resulting i.to which a quadripartite aEreenrcft was also executed.'rhe respondent lurther granted pcnnrson ro morlgage the said unit against the loan taken by the comphin.nt. x1l.

That rhe complainant has paid an amount of Rs.34,70,000/- by takins loan hom the Financial Inst,tution and the same amount has becn illegally demanded by the respondcnr in lieu ol offe. u ol offe. ol possession tor fit outs.

Further the said pJynrcnl ot Rs.34,70,000/ has been illegally retained by the respondcnr bl- offering th. possession of the unrt without obtaininS o.cup.rtion cenjficate.

The complainant is under hability to nrakc thc payment of said loaD along with its interest to lhe financial institution and as such the complainant is entitled to the reliet to refund ror the said amount of Rs.34,70,000/- or payment ot lnterest lrom the date of payment till valid offe. of possession oI lhe said unit after obtaining occupation .ertificatc.

It is furthcr to note th.r1 a processing fees amounting to Rs.34,810/- hrs tr.cn paid by the compla,nant to the financial institution rn ord$ lo xlll.

That the respondent retained the hard earned money of the complainant and illegally relused to make the payment on HARERA GURUGRAI\,I account of, a$ured return thereby practjce and also breach oftermsand and deficiency i. the seniceson part the complainant ComDlainINo.

5277 oi2O22 highlighting unfair trade conditions of the agreement ofthe respondent as a8ainst xlv. lhat as per sstion 11 (4) of the Real Estate (Regulation and Development) Act,2016, the promoter is liable to abide by the terms and agreement of the sale.

The relevant portion oaScction 11t41 is reproduced her€under: "11.4(a) The promotet sholl be responsible lar oll obliganoN, responsibilities and functians under the provisions of thx Act or the rules und reg otians mdde thereuder ot to the allotEes os Per the agreelnent fot sale, ot to the o*ociation of otlottees, as the cose tuoy be, till the conreyon.e of oll the opdftnents, platsor buildihgs,os the case noJ be, Lo the oliattees, or the connon a.eas to theossoctotian al ollotteu or the conpetent authanty, o\ the ose na! be: Provided thotthe rqponsibiliE ol the pronoLet, with respect to fie nructuml dekct at ohr othet delact Ior such penod 6 is relarred to in sub section (i) aI ection 14, sholl conthue even ofter the canveyonce d@d of oll the d oll the dpartnent5, plots or buld gs, os the cose nay be, to theollaueesore executed.

XIZ That as per sectioD 18 ot the Real Estate (Regulation and Developmeno Act, 2016, the promoter is liable to pay inte.est to the allottees ot an apa(ment, building or prolect for a delay or failure in handing over ol such possession as per thc tcrms and #HA|IERA ffi cURUGRAI/ Cdmnlri.rN.

5277 of 2022 agreement of the sale.

The relevant portion of Section 18 is reproduced her€under: "18 Return afonaunt ond canpensotion: (t) lfthe promaterfaib to conplete ar 6 unable ta grve possession al on opottnenL plat ot (o) in occordonce with the terns olthe ogreenent fot sale ar, os the cdse tuor be, dul! canpleted bt the date spe.iled therein;or (b) due ta dkcontinuonce af hn busines as a develapet oh occount oJsuspeneon ar revacatian o1 the registratbn un.ler this Act ar Ior dny othar h. sholl be lioble on dennnd to Lhe allattees. nt cosc the olloxee ||bhes ta withdrow Iron the proied, wxhout prejudice tooh! oLher remedy avaloble, k) return theonount recetved by hih ih respectolthot oparonent, plot, building, os the cose no! be, with interelt at such rate os tuo, be presjibed tn this beholl in.hding conpensotion ln the mdnner ds provided under this Act Prcvidetl thot where on ollottee loes not intend to ||thdrow hon the prcject, he sholl be pdid, by the pronoter, interest t'or every hohth oldelo!, tttl tht hotul|nq over al'the posesion, at such.ote as hu! xVL That accordingly, the complainant is entitled to get relief oi directingtherespondentto obtainoccupationcertificateand then ,ssue valid offer of posseslion along with the other reliel of not charging/demanding outside the builder buyer agreement and further to seek payment of Assured Return till actual handing over ofpossession as agreed.

Hence thiscomplaint. *& c.

4.

Relief sought by the complainant rhe complainant ha6 sousht followins relief(s). i Declare the off€r of possession for Fit out dated 11.09. ted 11.09.2020 as illegal, null and void being without obtain,ng occupation HARERA GURUGRAIV -.--r--., ilsrr;r , Direct the r€spondent to issue fresh offer ol possess'or aitcr ob!aining occupation certiticate lrom the concerned authority rnd luther revise the offer of possession by calculating the a.ea ot thc unit as per builder buyer agreement and to handover the possession ofthe unit.

Direct the respondent to make the payment of Rs.30,000/ on account ot Assured Return from April 2020 till actual h.ndlng Direct the respondent to make the paymcnt o[ rnrcrcst on Rs.34,70,000/-which hav€ been illesally demanded and rctaLncd D.

6. by the builder. on the date of hearing, the author,ty explained to th. respondent/ p romoter about the contravention as alleged to have becn committed in relation to section 11(41(a) of the Act to plead suilry or not to plead gu'lty.

Reply by the respondent 'Ihe respondent has contested the complaint on the lollorung l. 'fhat, the complainant after making extensive research had approached the respondent expressing his i.terest in the purchase of l'dgL 12, f20 II I1t a commercial un,t in the project known as "Elan I\4,racle", situatcd in sector-80, Gurugram.

The complainant had through Channelpartner oracle Landbase, approached the respondenr after making independent enquiries and duly satisfying himself regarding the viability and suitability of the proiect as per his needs and financial ComDlaintNo.S2TTol 202i capacityhad opted aora specialfixed return payment plan.

That unit no.

SA-1208 located on the 12ii lloor was p( allotted in favour of the complainant vide allotment ler 01.06.2019.

On 24.05.2079 a letter was sent to c( containing the detailed terms and cond,tions for paymer I\ r.rurDs olRs.

30,000/- per monrh. 'lhe respondent have made payment oi assured .eturn f.om [r1ay, 2019 till 13.01.2020.

The respondent, have applied for the occupation certificate with respect to the project on 14.01. on 14.01.2020 and the same was intimated to the complainant on 15.01.2020 The complainant was fulther inio.med thatthe finalstatement ofaccount lvould be sent shortly thereafter.

It rs further subnritted th.r lhc respondent has be.n grant.d occupation certilicate on 17 10.2027 by the 1'own and Country Planning Department, Haryana 'lh.

Buyer's Agreement containing detailed terms and conditions ol allotment was executed between the respondent and the complainant on 20-09.2020.

It is pertinent to mention that despite rest.ictions imposed due to outbreak of Covid-19, the respondent have completed thc co.struction and offered possession within the trmelines as agre.d between the parties :nd vide oifer of possession for tit out l.trcr datcd 11.09.2020 , the respondent oLered possession ol the ufLl to thc compla'nants lor fit outs and seftlemenr otdues.lhe respond.nt *HARERA -&- cLnLcmv have oalered the possession ol the unit in the project aor fit-outs at thei. end so that as and when the occupation certificate is issued by the authorities, the commercial operations from the unit can tre commcnced without the.e being any loss oftime.

Vl. 'l'hat in terms of Clause 11 of the Buyefs agreemeni, possession oI the unit was agreed to be offered to the complainant within ,18 rnonths from the date ol execution of the Buyer's agreement (with grace period of 12 months and subject to lorce majeure conditions and events beyond the power and contrololthe respondent). lhat 't is an admitted fact that tbe buyer's agreement was executed on 20.09.2020.

Ilence, the respondent have offered possession of the unit wcll bcforc the agreed timelines for delivering possessron Moreover, it is pertinent to mention that the occuparion .cr(iiicrle wds received on 17.10.2022 which is well beiore the time stipulated in the buyer's agreement. lD a very surreptitious and clandestinc manner, fo. gaining wrongfully, the complainant has mixed two issues ofassured .eturns and handover ofunit.

Vll. unit.

Vll.

That the possession of the unit has been oifered on time aod the arsured return is always subject matter of conkact by and betw.cn the parties.

That, a mere reading olclauses of letter dated 24.05.2019 it is anrply clear that th€ payment of assured r.turn was tor r litcd term of time till filing oi appl,cation for grant of occupatron certificate.

In this case, there is no delay in offering possesson as the occupation certificate has been received before the time l,mit of 48 months stipulated in the buyer's agreement.

Thus, neither any assured return, nor any amounts of delay compensation a.e due to the complainant.

Vlll. l'hat it shall not be oui ol place to mention that despite complchng Com.lrintN.

5277of 2022 I\ X.

8.

I]AIIERA GURUGRA[/ ComDlainr No.

5277 oI2022 the conskuction of the complex wellbelore time and applying for rhc occupation certificate on 14.01.2020 , the occupation certificate was sranted on 17.10.2022.

That the delay in grant ol occuparion certificate, despite timely completion ol construction of the complex was outsjde the ambrt 01 the rcspondcnt.'lhe respondent have at all times bc.n rcady and williDg to offer possession of the unit in a timely manner That it is submitted that the conkactual relationship b.twcen the complainant and the respondent is governed by the buyefs agreement executed between the parties.

The complainantcannor sel up any imaginary claim/s which is contrary to the te.ms and conditions ol the buyer's agreement.

The complainant has falsely alleged that the oflier olpossession fo. fit outs made is wrongful. lurisdictioo ot the authority 'l he authorigr observes that it has territorial as well as subjccl mIt.r iurisdiction to adjudicate th. present complaint for thc reasons grvcn [.] Territorialiurisdiction As per notification no. tl92/2017-ITCP dated 14.12. ted 14.12.2017 issued by 'lown and Country Planning Department, Haryana the jurisdiction ol Haryana Real Estate Regulatory Authorty, Gurugram shall be entire Curugram district for all purposes. ln the present case, the proje.t rn queslion is situated within the planning area ol Gurugranr districi 'lhereiore, this authority has complete terrjto.ial jurisdiction to dcrL with the present complaint. ljll Subi€.Gmatt€riurisdi.tion E.

7.

HARERA Comnlaint N6 5277 of 2022 9 ofthe Acl2016 provides that the promoter shallbe GURUGRA]V Section 11(4lial r.sponsible to the allottee as per agreement for sale.

Scction 11[4][a] is reproduced as hereunder: sqtionll(4)(a) Be.espansible far all oblisottans, responsibihttes ond fun.tions undet the prarhiohs af tht.

Act a. the tules ontl resulationt mode tltcteundct ot ta the ollottees os pet the osrcencnt lat sola ot to the associotiah olollotees, os the @se ho! be, till the convcyance afdtl Lhe uponnen\ plottr or butldinss, os the cose moy be,to the allattees, o. theconman dreas ta theassactottan ol ot ktte.s nt the.anlpeLenL ortharit! as the.ase no! be 1hc prcvrton ofo$urcd rctutns k pottalthe memann.lutn.l undernohdtng os per tlouse l oIthe lloll doted 030a2017 A.cardhgly, the p.onatet is ftspanstble fo. oll abhsottuns /responstbthtiet ontl lth.ttans ihctudhg polheht ol ounr.d tu ru rh s a r pt.vi ded in m e n oto ndun ol t n.l d no n d t n a.

10.

So, in view ofthe provisions ofthe Act quoted above, the authority has complete jurisdiction to decide the complaint regarding Don complianc. ofobligations by the promoter leavingaside compensation lvhich is to be decided by the adjud,cating officer il pursued by drc complainants ata later stage.

1,.

Findings on the rel iefs sought by the complaimnt F.

I.

Direct the respondent to issue fresh offer of possession after obtaining the occupation certificate and declare the oftcr oI possession dared 11.09.2020 as lllegal.

11.

There is a contractual relationship betlveen the complainant and dr. nt and dr. respondent which is governed by the Builder Buyer Agreement, cxecuted between them.

However, it is seen that the drafting ol the clauses in the builder buyer aS.eement are not only vague and uncertain but so heavily loaded in favour of the promoter and by thc nllottee in fulfiuing formalities and documentations etc as prescrib.d by the promoter.

This is just to comment as to how thc builder h.s misused hrs dominant position and drafted such ntischievous cbuse in the agreement and the allottee is left with no option but to srgn on the HARERA GI]RUGRAN/ f c".r1.,.*,"jr7b rorr-l dotted lines- Even ilthe contracnral obligations commenced pre RERA, thc builder cannot misuse his dontinant position by drafting anvthing which is repugnant to the statutory r,8hts ol the allottees ln the present case, thc respondent/builder have misused its dominant position and drafted a clause in the letter containing terms and condilions for fixed return, whr.h are completely vague and <rgainsi the statutory rights of the compLrinant/allottee whereby it says that the offer ol possession h not dependent on the grant of occupation 12. lhe authority would express ,(s views regarding the concept of a 'valid offer of possession".

It is necessary to clarify this concept because, after a valid and lawfuloffer otpossession, the l,abilitv ol the promoter for the delayed offer of possession comes to an end On th. other hand, if the possession is not valid and lawful, the liability 01 thr promoter continues till a valid olfer is made and the allottec renrains entitled to receive interest for the delay caused in handing ovcr ol possession.

The Authority aiteru detailed consideration olthe matter has concluded that a valid offer ofpossession must have the tollowing a.

The possession nust be allered after abtaining on accupotian certilca te / com p leti a n c e I tifi cote. me subje.t unit nust be in a habitoble condition. condition.

Possession sllould not be (lccomponied bv unreasoaoble additional denands.

I 3. ln the present case the first and foremost condition of a valid o'fer of possession is not fulnlled.

The occupation certificate ,n respect ofthe project in question where the subject unit is situated was granted by the concerned author,ty on 17.10 2022 and the same is evident from b. -, RER tl 15.

GUR;GRAw fco'o''*"o sz"o"o'? l page 42 oi the reply filed by th. respondeDt.

The respondent offered the possession for fit out of the allotted unit before obtainjng occupation certificate i.e., on 1l 09.2020.

Hence, the said oifer is not a valid oifer ofpossession.

Ther.li)re, the respondent is directed to offcr the possession to the compla,nllrt within 30 days from the dat. olthls I.II.

Directthe respo.dent to make payment of Rs.3 0,000/ _ on account ofAssured return from April 2020 till actual handing over otpossession. 'lhc respondent has submitted in its reply that vide letter d.rted 24.05.2019, it will pay a fixed amount of Rs.30,000/_ per month to the complainant from 10.04.2019 till filing of the application ior grant ol occupation certificate of the said project.

However, the complainant submitted that the .espondent vide clause 1 ot the lettcr dltcd 24 05.2019 agrced to gjvc an irvestment return of Rs.30,000/ p.r month tiom 10.04.2019 till thc trme of offer ol possession of the said unit. lhe total sale consideration ol the allotted space was Its.4s,94,500/- and the complainant has paid a sum of Rs.ss,74,559/- dBJrnsr rh. (dme r.e.. more lhan rhe lord .dle pn, e.

The letter dated 24.05.2019 regarding the terms and conditions tbr fixed amount on Provisional lrooking can be considercd as an agrccment for sale interpreting the definition of thc a8recnrent lbi ''agreemeDt tor salc under scction ztcl ol the Act and broadlv by taking into consideration lhe obiects ol the Act.

Therefore, ihe promoter and allottee would bc bound by the obligatrons . igatrons .ontainl'd in the memorandum of undcrstandings and the Promoter shall be rcsponsible for all obligations, rcsponsibilities, and functions to the allottee as pcr the agreement tur sale executed inter se them under secrion ll(4)(al ol the Act. r\. agreement denncs the rrghts !nd &HARER, GURUGRA[/ liabilities of both the parties i.c., promoter and the allottee and m'.rks the start of new contractual relationship between them This contractual relationship Sives rise to future agreements and transactjons belween them. lherefore, different kinds of payment plans were in vogue and legal within the meaning ofthe agreement ior sale one of thc integral parls ol this agreement, the letter datcd 24.05.2019 is the transaction ol .rssured return inter se parties lhc ''ag.eement lor sale" after conrrng into force of this Act [ic', Act oI 2016l shall be in the prescrib€d lorm as per .ules but this Act o12016 does not rewrite the agreenrenf' entered between promoter rnd allottee prior to coming into lorce of the Act as held by the Hon'blc Bombay High Courf in case lY€elkdmat Realtors Suburban Private Limited and Anr.v/s Union ol lndia & Ors., (WtitPetition No' 2737 of 20171 decided on 06.12.2017.

Since the agreement defines the buver promoter relationship thereforc, it can be said that the agreenenl lor assurcd returD between the punoter a.d allottee anscs out ol thc same relationship.

Therefore, lt can be said that the rcal esta!' regulatory authority has complcte iurisdiction lo deal with as r'd return cases as the contractual r,lationship arise out ofagreem'nL for sale only and between the s.rnrc parties as per the provisions ol section 11t41(a) of the Act of 2016 which provides that the promoter would be responsible ior all the obliSations under the Act as per the agrcement fo. sale till the excculLon oi conv'vance deed of the unrt rn favour of the allottees.

6 The prescnt complaint was fLxo.l for pron'ln'ement ol o cr of 13.032024.

Vide proccedings rrted 13. rrted 13.03'2024, the Authontv h!d made foUowing observations: *HARERA GURUGRA[/ 'thc respahdent k dtected to po!

Ltt) orreo3 on onouht al a$ured rcturn ah nonthly bott o\ per te.ns ond Lonlnuons vide lette..loted 24A52019 lar on onddL ol Rs3a,aAA/- petnonth Jtotr n)c doteolpto sanot boakngie 1a 04 2t)19 ttll the aab ol obtonins occupatian .e.tilcate plus ^no nonths tttoter stanl\ dkpose.l al Detoiled o.der will falla\r 17 ltowever, while preparing th. detailed order the Authoritv hns observed that the provision lor assured r€turn from the date ol provisioDal booking, ie., 10-04.2019, until obtaining the occupation certificate plus tlvo mo.ths, was inadvertendy noted in the proceedings dated 13.03.2024 ns the assured return was pavable upto the offer of possessron.

Here rn the present complaint, the offcr ot possessioD was not valid as it was made in the absence of occupation cerliilcate.'lherefo.e, the assun,d retu.n is liable to bc given upto grant ol occupation certificate, only after $hich a vahd oitcr ol possession could have been Dade.

Consequentlv, the case was scheduled for re_hearing beiorc the full bench, and the proceed'ngs LldlFd I J.0l.l0l4 wrrF rmend.d as lollows' ' rhc relteI ol asured retum ot the ogree.l rote of k 3a aaa/o pet nanth tn dle luduot natnx ol thc preAnt conplaint d*tu4 ta be alloqed ton the date ol ptuvisional bookjns Le, 10.04.201s ti ohtaining the oc.upation'ertilicote" 18. 'lhe aulhority hereby di.ects th. respondent to pav arrears of assured relurn which was agreed bctween the respondent and th' complainant vide letter dat.d 24.05.2019, at a fixed anlouDt ol I{s.30,000/'per month from 10.04.2019 till the dale of obtairing occupation certificate.

H.

Directions ofth€ authority 19.

Hence, the authority hereby passes this order and issues the following directions under section 37 or the Act to ensure compliaDce ol obligations cast upon the pron!)ter as per the lunction entrusted to the authoritv under section 3410 fsffi;".-il,. fi;".-il,.r1 !A RAIV ARE URUG H Dated:14.05.2024 c.mblaintNo 5277of 2022 [Ashok Sa an) Haryana Real Estate RegulatorY Authority, Curugram i.

The respondent is directed to pay the arrears on amount of assured return on monthly basis for nxed amount of Rs 30,000/- per month from the date of provisional booking i.e, 10.04.2019 till the date of obtaining occupation certificate aft€r deduchng any amount that has already been paid by the respondent to the allottee on account ol as rcd.eturns, ilanY. ii.

Ihe r.spondent is directed to h.rnd over possession of the unrl to complainant within 60 days oltlris order. iii lhe respondent is also directed to Pav the outstanding accrued assured return amount tiu the date at the agreed rate within 90 davs from thc date of order after adiustment of outstanding dues if anv, fiom the compla,nantand failing which thatamount would be payablc with interest @8.85 p.a till the date of actual realization rv. 'lhe respolrdent shallnot charge anything from the complainant wh ich is not a pa( olthe buyer's agrccmcnt.

20 Complaint stands disPosed of.

21.

Irile be consigned to registry.