SUKHPAL KAUR vs KS PROPMART PVT. LTD.

*HARERA S GURI]GRAM ZBEFORE THE HARYANA REAL ESTATE REGULA AUTHORITY, CURUGRAM Date offirst hearlngl N1rs.

Sukhpal Kaur R/o: - House No.22, scctor 3, Chandigarh Versus 11/s KS !ropmart l'jrlvate l,imited Regd. ofiice atr A 793, 1n floor, G.D. colonv, Mnyur Viliar l'hase Ill, Near Hanuman Mandir, New Ilelhi' r 10096 Corporate omce at: Plot No.

14, Ground Floor, Scctor 44, lnstitutional Area, Gurugram- 122003 Haryana CORAM: ShriVijay Kumar Coyal APP[ARANC[: Shri N,lanull\,litra ORDER 'l hrs complainr has been liled by the complainant/allottec I 31 of the lleal Estaie (Regulation and Developmentl Act the Actl .e.d with rule 28 of the Harvana Real Ilstate ( r].vaopmentr Rules.2017 tin shon. the Rules) ror viola lltq)t,l ot tl. e.t .t'"."rn ir ,s /nt?r d/id prescribed tha sfrall be responsible tor all obliSations, responsibilities {naer ttre orovrson of rhe Ad or the Rules and re8 tereunder or to the allottee as per rhe asr€emcnr tor sale ]e. unn"na p-i"cl ""lated detalls ORY 7S of 2023 '14.03,2024 0.05,202., 016 [in short, egulation and 0 *HARERA S- cLrnLrennl,t TtiF particulrrs ol unil detarls \ale consideration, rhe smou (olnplaindnr. dale o, proposed hdnd,ng over rhe possession. ,lln).have becn detarled in ihe tollowing tabular iorm: rT.@__ l.

Name ofthe prolect Area ofproiect 2.85 acres 2 I Naturc ofprojgq!

D'l'CP license no. up !qq1lZ2qU 5.

G'95, Cround floor 21.08.2018 Rs.52,07,100/_ understandlng 'lotal sale consideration Ass red return clause by lhe 11. t_ D:re of execution of (As perllEqno w fls.

IL ff.r,* t paid by the 100 0f 2013 dated 02.1 XS Propmnrt Pvt Ltd.

850 sq. ft. [Super area) [As per page no.9 of co 2013 \ratid As per page po.9 ofcq laintl 3.

Assured Return 3.1|t is hereby agreed a by the developer August,2018 till the olJer of possession develaper sho PoY oh dssured return Rs.51,85,466l- lAs per page no- 31 ofth Rs.142.71/ Per sq ft of premises pet non rcturn sha be s deducian at nurce, pavoble on ,1n \ 27 of rh ""I4''10 complaintl l HARER. l l HARER.\ GURUGRAIU 1 Due date ofpossession tnlrostructure dnd Ors vs. lrevor D'Lima and ors. [12.03.2018'sc)i MANU/sc19?!!/2919 EactsotthecomPlaint: e complanrant has made the following submissions: _ 'lhatthe conrplainant i.e, Mrs.

SukhpalKaur is a permancnt residcnr of llousc No.

22, Sector3, Chandigarh and is a pca'e loving and law abiding citizen of India 'lhat initially a commercial unit bearing no' GR_53 adincasuring a tentative super area of approximately 651'05 sq' ft' situated in 68 Avenue" in sector_68, Curugramwas allotted to the complainant That thereafter, the respondent apprised the complainant about developing and setting up commerciallowers/colonv bv the nanre ol ''Park Street' over an area o1 2 85 actes situated ai Villagc lladha' Sector {15, C'rrugram. lhat the complainant showed her interest in huying/purchasing a unit in the aforementioned commercial colony/toscrs being developed bY the resPondent. 'l'hat the rcspondent had g,ven false verbal assurances and promises to deliver the possession ofthe unit within 03 vears as wellas to Eive nronthly assured return to the complainant' That the complainant believing and falling for the lalse assurances ol the respondcnt agreed to buv a unit in the aforementioncd proiect' occuDation certificate 01.08.2021 (Note:' Calcu)ated from the 3 Years from the dat€ oi funds transferred to the proiect Park Street i.e-, 01.08.2018) Complarnl No.

947q or 2023 t4 1$ l.

A vl ComplarntNu 5475!r20Zl i.e., October 2023, monthly assured whi.h ,motrnts to a total of Rs. xl.

2020 tilldate.

That from April 2020 till date return of 40 months is due 4A,sZ,12O /-. frHARERA -Ctb- GURUGRANT VII. v T tx x xll. lhat thereafter on 01.08.2018, the complainant had requested to transfer the amount paid by her against unit no.

G8-53 in 68 Avenue to unit no.

G-95 in Park Street. lhat pursuant to the above mentioned surrender letter, the respondent and the complainant entered inlo a memo.andum of understanding dated 21.08. ted 21.08.2018 ior allotmentolunit no G 95 on the ground floor admeasu.ing a tentative super area of 850 sq tt. for a total agreed consideration o1Rs.52,07,100/' in Pa.k Street, Secto.'85, Gurug.anr.

That according to clause 3.1 of the above mentioned MoU dated 21.08.2018, the respondent h:d to give monlhly assured retLrrn of approximatcly Rs.1,21,303/- per month to the complnin.nt we.t.

0l 08/0lSu.llhedpplcrlionforof'crof pos'c.ior'. l hat initially the respondent was paying the monthly assured return to the complainant till March 2020 but stopped paying assured relurn l hat the complainant had again and again requested the respond.nt to clear the pending assured return as she had no other source ol income and had put her lil€long savings in buying the afore$id unit with the intention of becoming the absolute owner of a world_class propcrty [as promised bythe respondeno in Gurugram 'lhat trll date, neither the respondent has givcn posscssion to thc complainant as the project is still incomplete, nor the rcspondcnt has paid a singlc installment towards monthly assured rcturn from April M GURUGRA|\/ r.

Dlrect the respondent to PaY approximately Rs.1,21,303/- per (April2020 tillOctober 2023) i e, the pending assured return of month which is due for 40 months' Rs.4A,52,120 /' CompLaint No.

S475 C.

Reliefsought by the complainant: 4. l hc complsinant has soughtfollowing relief(s): *HARER -, \:i xvll.

That the complainant had time and again requested th€ respondent to pay monthly assured reNrn to the complainant in accordance with the said MoU and had put multiple efforis and approached the respondent ior the same, but all the efforts made by the compla'nant went in vain as after receiving money from the cornplainant' the respondent started ignoring the complainant and has neithe' completed the proiect, nor applied for 0C, nor executed a space buyer's agreeme. s agreeme.t, nor the respondent has paid monthly assured return to the complainant for 40 months causinB immense mental rrauma and financial loss to the complainant' That according to the applicition to authority for registration of real estate project submitted by $e respondent to the Hon'ble Authoritv' revised date ol completion of the said proJect is 31_12'2021 which makes it crystal clear to understand and deem that the project was supposed to be completed till 31.12 2021, :lthough the complainant was shockcd to knowthat the projectis far irom beingcompleied xVI lhar taking advantage of its dominant position in the real estate m.rrket, ihe respondent has clearly refused to pav anv pcndrng and/or forthcoming monthlv assured return as well ns to sive posscssion to the complainant leavi'8 the complainant with no oth'r option but to approach the Hon'ble Authoritv That the complai.ant being an aggrieved party is filing the prcsent complaint undcr Section 31 with the Authoritv for \ Inlrr.ol/ronrrdvenlion or provi',on' of lhr: A' I iv 5.

Complarnr No. s475 ol Z02l [email protected] and for fil,ng reply within 4 weeks.

The delivery reports have been placed in the file.

The counsel for the respondcnts ncither put in appearance on 14.03.2024 and 30.05.2024 nor filed reply to thc complaint within the stipulated period despite given ample opportunities.

1t shows that the respondent was inlentionally delaying the proceedrngs by avoiding filing ol written reply.

The complainant is 85 ycars old scnio. citizen and has paid almost fullconsidcration money and hcncc no ft'rther wait is justified.

Therclorc, 'n vier! of abovc, v'dc ordcr dat.d 30.05.2024, th€ deience ofthe respondent was struck oii 6.

Cop'es ofall the relevant documents have been filed and placed on the ..cord.

1heir authenticity is not in dispute. llence, lhe complaint can be decided on the basis oi these undisputed documents and submissions nr.rde by the complainant.

D. ainant.

D. lurisdiction ofthe Authority: *HARERA S-eunuenrv ij.

Direct the respondent to make legal and complete offer oi possession as well as registry of the said unit to the complainanr at thc earliest after receiving necessary government liccnses and approvals from the competent authority. iii.

Direct the respond€nt pay interest ar the prescribed rate towards delayed possession compensation- iv.

Direct the respondent to pay an additional amount of Rs.1,00,000/ to the complainant towards lit,gation cost. v.

Direct the respondent to waive offany maintenance charges, cost of parking or any other charges that the respondent may have charged since the respondenthas notoffered possession tilldate.

1he authority issued a notice dated 04.12.2023 of the complaint to the respondents by speed post and also on the eiven email address A N HARER, S-eunuennv 7.

The authority has complete territorial and subject matter jqrisdiction to adjudicate the present complaint for the reasons given below.

D.l T€rritorial lurisdictloD 8.

As per notification no \/9212O17'1TCP datedr4.12.2017 issued bv Town and Country Planning Department, the jurisdictio. of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram D,strict for all purpose with omces situated in Gurugram. ln the present case, the project in question is situated within th€ planning area of Curug.am District' Ther.fore, th,s authority has complete territorial jurisdictiorlto dealwith the present con plaint.

D.ll Subject-matter lurisdiction I SectioD 11(4)[a] of th€ Act, 2016 provides that the promDter responsible to the allottee as per agreemeni lor sale Scction 11 rcproduced as hereunder: tal(a) is u. i;ia;tbte fot ott abtootiont rcspaisibitircs ond lunct)ari untct r)t ,.N ,atut-i, ,,i'tub\od et)ua"at"'o'1 t '-"d' ' t' t-,..,-c- a, p., t\r o|t?- 4ent o, .olP at t- oe a* o. -nor al dl n ?a\ n' ute nar ri. te nar ri. att trc ionveronce aJ ott the opottnehtt pto\ ot buttdtnss u' Lhc case niy te, to Lte attoxees, or the connon oreos to the asodottot olottottee\ at the c.tnpetentauthority,os the case nav be) S ection 3 1' F u nctiot s oJ the Authoritv : .AA ofthe Act provide; b ensure conPliance al the obhsoLians cast uNn the p;inaie!. the attottees ond the rcat 5tote osents under this ^'t qnd Lhe tutes dnd regulotrcns nade thercundet 10.

So. in vi;w of the provisions of the Act quoted above, the authority bas complete lurisdiction to decide the complaint regarding non'comPliance oi obligations by the promoter leaving aside compensation which is to be dccrdcd by thc adiudrcating officer ilpursued by the complalnant ala l'rt'r t.

Iindinss on (he reliel sought bv the complainanl: r-.t oirccr ttro respondcnt to pav rhc Pehding assurcd 'erurn or approximately Rs.1,21,303/_ per month which i$ due for 40 m;nths. (April202o till october 2023) i.e., Rs 48'52,120l'' v *HARERA S--cLrnLcnnt',t ComprniNo 54?5 of202l l1 The complainant is seeking unpaid assured returns on monthlv basis as pcr the N4Ol1 dated 21.08.2018 at thc rates mentioned thcrein.

It is pleaded by the complainant that the respondent has not complied with thc lerms and conditions olthe said MoU Though for some time, the amount ofassured returns was paid but later on, the respondent refused to pay the samc.

In Gaurav Kaushik and anr.

Vs.

Vatika Ltd. the authoritv has hcld that when the payment ol assured returns is part and parcel ol memorandum or understanding or buyer's agreement lmavbe there is a clause rn ihat document or by way of addendum or terms and conditions of thc allotment of a unitl, then the promoter is liable to pav that amount as agrccd upon. l2 A memorandum ofunderstanding was executed betwecn the compllrinant and the respondent on 21.08.2018 by which a specific unit bearing no' C_ 95 has been allotted to the complainant for sale consideration of Iis.52,07,100/ . ,07,100/ .

Although, there is no spec,fic due date ior handins over ol posscssion is given in the MoU but as per clause 3 1 of the lqOU' the respondent has promised an amount of Rs.142'71/- pet sq tt of super arca per month in the form of assured return till the olier oi possession' 'l he dcfinition of allottee' as per section 2[d) ol the Act of 20] 6 prov es that an allottce includes a person to whom a plot, apartmcnt or building h3s heen allotted sold or otherwise t.ansferred by the prornoter' Scction 2(dl ol the Act ot 2016 has been reproduced ror readv reterenc': 2(d) 'itLuee' i,, uroriou to u reot "state p.a)e.a neons the PeBon Lo whon o pt't- ,^n,tnPnL.' bn ndo n beel o ou"d 'otdtat"b ' r i, a,,,t. "o tnn,oi. ot"*r " t t oa't,, "d r) t" o' nao' Pt p- ,. iro uDaqdpdt, o or\" 'h" 'o'J o dn L \aro\ 'at- t-v" r t at '.thowle bur does not include o Petsan to ||hon tuch plat' apu nenL ot brndhg, o\ the.ose nov be, isgtven on tdr' Keeping i; view the above mentioned facts and the definition ofallottec as per Act oi 2016, it can bc said that the comPlainant is an allotle'' i/ CompLalnt No 5475 of202J S HARER & C-n-Crnv 'onocn No (4--or2o2r I 13. lhe money was taken by tbe promoter as deposit in advance against allotment ol immovable propertv and its possession was to be offered within a certain period However, in view of taking sale consideration by way ofadvance, the promoter promlsed certain amount by way ofassured returns for a ceriarn period- So, on his failure to fulfil that co mmitm ent' the lllottce has a right to approach the aLrthoritv lor redressal ot his grievances by way olliling a complaint.

14.

Thc promoter is liable to pay that amount as agreed upon' Moreover' an agreemcnt/i4oU defines the builder-buyer relationship' So, it can be said that the agreement for assured returnsbetween the promoter and allottee arises out of ihe same relationship and is marked by the said memorandum oiunderstanding 15. anding 15. ln thc present complaint, the assured return was pavable as per clause 3 of l\.{oU, which rs reproduced below for the readv refercnce: 3, Assured Return :t 1 tL 6 heteb! o|.eed ontl uhde.token b! the devetopet thul |rcm t trsult ' )aiu iti,i" ippt'*u* 1.r ollq ol posesion s nsued the devet'pet shatt "",,i *" "ttii* * ^i*a ,ein ot the rcte of Rs 142 7)/ per se Jt' oJ '\uDet o . a ot o, a4.a\ p'' lod h l+tP a r rt"tJ, "tu'h' hotl DP \u r' a t' i;",.,,." ", .",, " ;h',1 'hatt b' p-"otl aa dl" l ttp ot P4') tr. t' \ calendet month on due basis 1h,,! the assured return was pavable @ Rs-142'71 per sq' ft ofsuper area per month i.e, Rs.1,21,303/- per month w'ef 21'08201U' till the possession ofthe said unit is handed over to the complainant 16. ln light of the rcasons mentioned above, the authority is olthc view that as per the I'loU dated 21.08.2018, it was obligation on thc part of thc respondent to pay the assured return' It is necessarv to mennon here that thc respondent has failed to fulfil its obliSation as agreed intcr se both the pafiies rn Moll dated 21.08.2018' Accordingly, iD the interest of natural iNtice, the liability ofthe respondent to pay assured return 3s per MoU is still continuing The respondent has paidassured return to the complainant till Ma.ch 2020' Therefo'e, conside'ing the facts of the Pas.9 ol l4 IL *HARERA -db- crnrcnlu comDlaintNo 5475 of 2023 present case,the rcspondent is directed to pay the amount ol assured rcturn in terms ofclause 3 of MoU dated 21.08.2018 at the agreed rate ie., (a Rs.1,21,303/ per month from the date the paymcnt of assured .cturn has not been paid i.e., April 2020 tillthe handing over ol Possessron atter obtaining the occupation certificate.

E,ll Direct the resPondent to make le8al and cohplete ofier of possession as well as registry ofthe said unit to thc comDlainant at th€ earliest after receivitrg necessary governmcnt licenses and approvals from the competent .uthority. r:. ority. r:.lll Dircct the respondent pay inter.st at the prescribed rate towards dclaycd possession conPensation 17. j'hc above sought relief[s) by the complainant are Inken toS.thcr being inter connccted.

111.

Aclmissibility of delay possession charg€s at prescribed rat€ of ioteresL Thc complainant is seeking dclay possession charges however, proviso to section 1g provides that where an allottee does not intend to lvithdraw from the proiect, he shall b€ pajd, bv th€ promoter, interest for evcrv month of dclay, till the handing over of possession, at such rate as may be prescribed and it has been prescribed under rule 15 of thc rules Itule 15 has been rcproduced as under; Rule 15.

Prestibed rote oJ interest- lProviso to se.tion 12, se'tion 8 ond sub section (4) ond subsection (7) ol section l el (t)l:ot ke Pu.pase oJ praviso ra secton 12)section 1q und srb \etLont ta) ond (7) ol section 19, the inter*t ot the rote pre\'tibed shott be Lhe stote uank oJ tndio highestno.ginolca\t ollending rote t2a4': P.avided that h cose the State Bank of lndia morsihat cast aJlehding nte [t\|ct.u) 6 n.t in use, t sholl be reptoce'l b! such henchnu'k tendtns .t which the stote Uonk oltnAia hav fixftoh tine to tthelat kndn! to the gencralPublic.

19.

Thc legislature in rts wisdom in the subordinate legidation under the provision of Nle 15 of the rules, has determined the prescribed rate ol interest. l'he ratc ol intercst so determrncd by thc lcgidatLtre, 's rensonable and il rhe said .ule is followed to award the lntercst, it will c surc unilorm practice in allthe cases.

L I #HARERA S- GURI]GRAIil ?0 Consequently, as per website ot thc 5tare httos://sbi.co.in. the marginal cost ollending rate (in short' MCLR) as on will i.e., 30.0s.2024,s 8.850,6.

Accordinglv, the prescribed rate or interest be mdrgrndl cosl ol lendrng rate r2oo i'e ' l0'85v0' . l0'85v0' .lefinit,on of term 'interest as defined under sec provides that the rate of interest chargeable ir'm promoter, in case ofdefault, shall be equal to tbe rate promoter shall be liable to pay the alloftee, in case of section is reproduced below: - .t t'a c i 4'a4t h" rutet oJ inerP' t pavable b\ th" p datq "' t\' .tt.npt .\ Lhe tuse nar be t ^rhnn-aa. ta, o"pu.paPolth6.tlu'" - ',"i i.'.,i i ^., -,.t'i*kp PdthPo oree nvtne p o4^ ' t 'a'' .' aaou',hat o" "qtot i th' mte ol it44t rht' b b" Drcn'\- \"'' b' 1,;rL t,, "^ thc attottee. n cose ol delotn .,, ,-.' ,, ,,:-, i.tiu' t - tonotei a t' -tta q aa\ F tt - "'' t. ' ,';,, ., .",;, '', ".u"a '', ono'n'o' an' Pott LhPtot trt \' ot .h .)-i. i.'."u -a ' ardth't,t "' ,,,"";"L,' ,i;,t,",," to'hePtonot'' 'hot bPt'on ' dot .n ttt tt' ;;;;';; p"',*, * * *".vret titt h?dotetsPli 22.

Ihe authority furthe. observes that now' the proposition before the Authority whether an allottee who is getting/entitled for assured return cven sfter expiry of the due date of possession' is eDtitled to both the assured r€turn as wellas delaved possession charges?

23. 'l'o answer the above proposition' it is worthwhile to consider that the assurcd return is payable to the allottee on account ola provision in a Llotl or in the IlllA or an addendum to the I4oU/BBA or allotment lettcr' The assLrrcd rcturn in this case is payable from the date i'e ' 21 08'2018 tiu possession is handed over to the complainant_allottee' Ifwccomparethe assured return i.e, Rs 1,21,303/- per month with delaved possession ,harBes r.c.

Rs.4b.88c/_ ipPro\imalFly payrble und'r provr\o to \eclrJn 18 (11 of the Act oi 2016, the assured return is much higher' Bv wal' of 3ssured rcturns, the promoter has assured the allottee that she wrll be tion Z[Ea) ot the Act the alfortee bY rhe nrinr€lest whrch the a"r",tl. rr,e relevant d/ IARER entitl.d for this specific amount till handing ove. nding ove. of possession Accordingly, the interest oftheallottee js protected even afterthe due date of possession is over as the assured return are payable till offer of possession. l he purpose of delayed possession charges after due date oi possession is over and payment ol assured return after due date ol possession is over are the same and safeguard the interest of the allottee as her money is continued to be used by the promotcr cvcn after the promised due date and in return, she is paid either the asnrrcd rcturn or dc.a)".1 pos,e.s,on char8.. whichever 's h.8hpr Accordingly, the authorily decides that in cases wherc assu.ed return is rcasonable and comparable with the delayed possession cha.ges under section 18 and assured return is payable even after due date of possession till the handing over of possession of the said u.it The allottee shall be .ntitlcd to assured return or delayed possession charges, whichever it higher without preiudice to any olher remedy,ncluding compensation. ln thc present case, the assured return was payablc tilL the possession of the unit is handed over to the comPlainant The project is considored habitable or frt ior occupatron only after the grant of occupation certiilcatc by the competent authority.

However, the respondent has not recelved occupation certilicate from thecompet€nt autho.ity tillthe date oipassing of this order.

Hence, the said building cannot be presumed to be fit for occupation.

In vi.w ol the above, the assured return shall be payable til! the possession of the unit is handed over to lhe complainant alier obtaining the occupation certificatef.om the concerned authorities llcnce, thc authority dirccts the respondent/pronroter to Pav assLrred rcturn ro the complajnant at the rate of Rs.1,21,303/_ pcr monlh lrom the drte lvhen the paymcnt of the assu.ed retunrs has not bccn pa'd i'c' 0104.2020 till the possession is handcd over to thc complainant after obtainingtheoccupatlon ceriiicate.

24. icate.

24. v &HARERA &-cunLreneul E.lV Dircctthe respondentto payan additiona I amount of to thc complainant towards litiSation cost.

26. lhe complainaDt is seeking above m€ntio.ed reUef w.r.t. c s.'t,00,000/.

Ilon'ble Supreme Court of India in civil appeal nos.

6745 749 at 2021 d section 19 dged by the titled as M/s Newaech Promoters and Developers PltL Lad Up & Ors. (suprd), has held that an allottee is entit compensation & litigation charges under s€ctions 12,14,18 a which,s to be decided bythe adiudicating ofticer as per secti quantum of compe.sation & litigation expense shall be adi adiudicating officer having due regard to the factors mentio 72.

1he adjudicating officer has exclusive jurisdiction to dcal with thc complaints in respect ofcompensation & legal expenscs E.v Direct thc respond€nt to waive offany maintenan'c charges, cost of parking or aDy other cbarges that th€ rcspondcnt mav hav' ;hargea since the responden t has dotoffered posscssion tilldale' 27.

Ihe Authorlty after carefully considering the submissions presentcd bv the complainant, finds that the complainant has failed to subsunnatc her claims with any documentary evidence and it has not been pressed during the proceedings by the counsel fo. the complainant' ln the absence olsuch material prool the Auihority is unable to ascertairr the legitimacy oi thc con)plainant's concerns about the claimed reliefs.l hus, no dir'ction to this L Directions ofthe authorityl 2tl. llcncc, the authority hereby passes this order and issucs the lollowinB dircctions undcr section 37 of the Act to ensure complian'e of obl'gations casl upon the promoter as per the function entrusted to the authoriqr under section 3a(0: ).

The respondent is directed to pay the assured rerurn Ft lhe rate i'e'' Rs.l.21.303/- per month as per agreed terms of MoU from lhe date i.e..

01.04.2020 till the handing over of Possess'on aftefobtrinrnc the occuparion certificate l4/ *HARERA !$- eunuenanr ii. uenanr ii.

The respondent is directed ro pay arrears of accrued as as per MoU dated 21.08.2018 till date ar rhe agreed ra days from the dare ofrhjs o.derafter adjustment otou ifan, from the complainants and failing which that amo payable with interest @8.85% p.a. ritt the date ofactuat r 'Ihe complainant is direcred to pay outsranding dues, if after adjustment of payable assured returns, the resp handover the possess,on of the atlotted unit on occupation certificare and execute conveyance deed in n Complaint stands disposed of. l:ilebe consrgned to regrs Dared:30.05.2024 HARERA GURUGRAM 29.

30.

75 ol2A23 e with,n 90 vl- nding duer, lization. btain,ng of 90 days. (viiay Haryana Real Regulatory Au Curugra