RAJEEV B AHUJA AND MADHU AHUJA vs VATIKA LIMITED

ffiHARER,{I #"eunuenAM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM ORDER 1.

The present complaint has been filed by the complainants/allotteeIs) under Section 31 of the Real Estate [Regulation and Development) Act, 2016 (in short, the Act) read with I{ule 2B of the Llaryana lteal -L,starc IRcgulatioir and Development) Rules, 201,7 (in short, the Rules) for violation of Section 11(4)[a) of the Act wherein it is inter alia prescribed that the promotcr shall be responsible for all obligations, responsibilities, and functions under the provisions of the Act or the rules and regulations made thcre undcr or to the allottee as per the agreement for sale executed inter se.

Complaint No, 5669 of 202'3 Complaint no.

Date of filing complaint First date of hearing Date of decision Rajeev Bhushan Ahuja and Madhu Ahuja Resident of: B-18, LGF, Swasthya Vihar, Vikas Marg, New Delhi-11,0092 Versus Vatika Limited Regd. office: AOO2, INXT City Centre, Ground Floor, Block- A, Sector- 83, Vatika India Next, Gurugram- t2201,2 CORAM: Shri Ashok Sangwan APPEARANCE: Mr. udaibir Singh Kochar and Mr.

Tulna Rampal (Advocates) Ms.

Ankur Berry [Advocate) 5669 of 202!l L3.L2.2023 27.03.2024 22.0L.2025 Complainants Respondent Member' Complainants Respondent Page 1oi21 /' HARERA GUl?UGI?AM Complaint No.

5669 of 2023 A.

Unit and proiect-related details 2.

The particulars of the project, 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 proiect "Vatika One India Next", Sector 82-A, NH-8, Gurugram 2.

RERA registered/ not registered and validitv status Not Registered 3.

Date of buyer's agreemHn.t*:= , Not Executed 4.

Date of booking iiltffi# Expression of Intere$t , * r;i, i99.09.201s [Page20 of complaint 5.

Amount paid complainants Rs. inants Rs.Z?,L4,250 /- (Copy'of cheques at page 28 of tompihint agreed to by respondent in its plQadinEs at paqe 5 of replyl 6.

Priority no.

P -264 [Page 16 of complaint) 7.

Unit area admeasuring :,.,:, 500 sq. ft. fPage 23 of complaintJ B.

Due date of Possession t lr 09.09101"8 [CaliUlated to be three years from date of signing of expression of interest in terms of Fortune Infrastructure and Ors. vs.

Trevor D'Lima and Ors. (12.03.2018 - sC); MANU / Sc I 02s3 / zoLs)l *lnadvertently recorded as 09.09.2016 in its proceedinas dated 25.09.2024.

9.

Assured return clause "The broad terms of assured return are as under:- a) Assured monthly commitment of Rs 75.83/- per sq. ft. payable titt completion of the project. b) Post completion of the project an amount equivalent to Rs.

65/- (Rupees Sixty Five Only) per sq, ft. super area of the unitper month shall be paid as committed return from the date of completion of construction of the said unit, for upto 36 (Thirty-six) months or till the said unit is put on ffi ffi groiq qqi Page 2 of 2L "/ Lease, whichever is earlier, After the I said Unit is put on Leese, then payment I of the aforesaid committed return will I come to en end from the date of I execution of Lease deed and the Buyer I will start receiving Lease rental in I respect of said Commercial Unit from I the rent commencement date as per the I Lease Deed of the said Unit.

I c) The obligation of the developer shall be I to lease the premises of which your unit I is part @ Rs.

65/- per sq.ft.

In the I eventuality the achieved return being I higher or lower than Rs.65/- per sq.ft.

I ., , ",the following would be applicable.

I $,Si$rtil.

If the achieved rental is less then Rs I lii,i,i 65/- per sq,ft then you shall b, I Sfu refunded @ Rs.

Lss/, per sq.ft I ,ii u;"rt(Rupees )ne Hundred and Thirty I $;ii6,,":=Ihree) for every Rs.l/- by which I ' ,achjevg.d rental is less ther 5/- per I , sq.ft. 'j I "'.'. 'j I "'.'.' 2 lf the achieved rental is above Rs 65/- | t, '' ';; p€t sqfi then you will be liable to pay l, ,, '. additional sale consideration @ Rs I jt ', 66.50 per sqfi. (Rupees Sixty Six and I '.,, i.i Paisa Fifty )nly) for every rupee of I ,r :,$;a44itional rental achieved.

I ,!)1'xt'trtJ'' No rent shall be paid to you for the I rl;,"j rent free period as moy be agreed I l,-. r,,' with the prospective Lessee." I l',fiu*":g oicomptain0 i 10.

E-mail dated 09,11.2018 sent by respondent to complainants .'n 4,p,tp;; I e g,ot,imp Ii c a ti o n s a s p e r c h a n g e i n ,.Sf'BI laws,;, the respondent have suspery(e/ all,the return-b ased sales a n d thal .6heyn shqll not be selling any more "pioduct [n'th.e same format," fPaee 32 of complaintl 11.

E-mail dated 17.06.2023 sent by complainants to respondent fRefund Request by the complainants) "l am quite worried that I haven't heard about the progress of this project after you abruptly stopped sending us the assured returns without' any valid or legal reoson in Oct 2078.

Can you please update us here on the status of the project, or it has been stalled for good and thatwe are now entitled to nothing??

I would like to receive a full refund of the amount paid by us in case the project is never going to complete.

I am not ffi ffi wlq qq* HARERA GUI?UGI?AI\II Complaint No.

5669 of 2023 Page 3 of21 a/ HARE11& GUt?UGl?AM Complaint No.

5669 of 2023 interested in relocating to any other unit in any of Vatika's project." fPage 34 of complaintl 1,2, E-mail dated 29.07.2023 sent by respondent to complainants "We qre in the process of reconciling your accounts as of 30th June 2079 and the payment disbursement shall follow & be completed within 90 days thereof, in three installments. ln line with our dlscussions and reasons necessitating the change in our committed returns model, as already apprised to you vide our earlier communications, dated .11 0ct-1-B & 30 Nov-1.

30 Nov-1.8, we are open to relocating your booking to a project of ours ,,in the vicinity, on terms and conditions as i ulyiipticabl e to th at pr oi e ct........ " ,f,Faee 33 of complaint) 13.

Amount of assured .etrr'iid"'i ii'i' ! iit ir il paid by the respondent t0$,tl{{: comPlainants ri'-'' ., ' r11w"1,1'-: oRs.34,691.92 /- .($s,pyhitted by complainants in their ' a.ld g3 at page 7 of complaint) 14.

Occupation certificate Not obtained B.

Facts of the complaint: 3.

The complainant has made,thb following submissions vide dated 13.12.2023i.'ireioinf,er dated 25.A7.2024 as well its complaint as written submissi o ns dated Z(".+Q.ZA:Z+ t a)Thatintheyear,o,'WWeSpondentapproachedthe complainantsandpresfueoftheprojectinquestionand :; T:'i:r]J.ffi mm ffi i' ;:" : ::,:: ::: : " :: 0e.0e.2015, the."mM4AfuPffiAe$WBr unit measuring 500 sq ft. fsuper area) with respect to proposed project One India Next, situated in Sector B2-A, NH-8, Gurugram as per which the development has to be done on the basis of the payment received per sq. basis from the allottee. b) That the complainants filled up Expression of Interest (EOI) and signed the terms attached with it for a commercial unit in proposed project One India Next.

Based on the application and payment made by the complainant, the respondent allotted a unit no.

608, block 4, admeasuring 500 sq. ft super Page 4 of21 ./ HARERA W-GURUGI?AM area in the said project.

The complainants had paid the entire sales consideration of Rs.40,00,000/- to the respondent on the date of execution of builder buyer agreement by cheque no.

053152 dated23.07.2010 drawn on Axis Bank which was duly cleared upon presentation by the respondent. c) That the complainants along with 'EO[' made a payment of Rs.22 ,L4,250 /- at Rs.

4250 /- per sq. ft. of super area as full payment by issuing two cheques bearing cheque no.637326 drawn on Syndicate Bank dated 09.09.2015 by complainant no.L and another cheque no.

480761drawn on State Bank of d) India dated 09.09. ted 09.09.2015 by .o#B * !o. z.

That vide letter dated O+.tt.Zd[i$ mplainants were allocated priority u*' # ir:i":' ' no.P-264 for a unit adm;,f,tq,ft\+5$,0 iq ft. lne broad terms of the assured returns were as under,1i"-1 ==t'..,ifl'c1 ,.' *'', ' ",,." , a) Assured monthlffcffm{tmeff*.n7.ns.75 83/ pqll iq ft. payable till completion bJ Posr ,o^ptrtio,$iifttt, projec1an amoynt equivolent'to Rs.65/' (Rupees Sixty Five only) per:;sq ft. supg,r ar:ia of the unit per month shall be paid as committed retifiliftom the date of,completion of construction of the said unit, for upto 36 ghi11;lii$ mpntil,p oit'tilltne iitidla1ip i!'put on Leese, whichever is earlier.

After thg q_aid U.yit ip pffi on"Leqse,.lhen payment of the aforesaid committed return*itlbometei'a.1fu,.!,frad=tb6'daib of execution of Lease deed and the Buyer will st'arg,,ye.ge,,y140,ffimfi,,19\9*ql in respect of said Commercial Unitfrom the rent commOncem#S# a,s'fer the Lease Deed of the said Unit.

4.

No Maintenance cha.rges shallfi.g"""fhqrged tayou for the period upto which the property is lease out.

Therea. the maintenance charges :e out.

Thereafter if the Lease is terminated, then in that cose :e charges would be recovered from your good self. your good self.

5.

Rental Security Deposit and Rental Advance as would be recovered from the incoming lessees shsll be paid to'1t'ou on receipt. e) That no builder buyer agreement was ever executed between the parties, even after 12 months which was the prescribed time for completion of the project as per the terms of EOI dated 09.09.2015 and as such there is no development in the said project.

The terms under EOI dated 09.09.2015 are as under:- a) That you will offer me/us allotment of a commercial unit in the proposed Project, within a period of L2 months from the date of this Letter, subject to requisite formalities as shall be stipulated at later stage. ter stage. fl I/We agree that though the Company shall try to make an allotment within period of 12 months or any extension thereof as may be decided by the v Page 5 of 21 Complaint No, 5669 of 2023 HARERA Complaint No.

5669 of 2023 Company, but in case it fails or is unable to do so for any reason whatsoever, no claim of any natltre, monetary or otherwise, would be raised by me/us exceptthe amount as mentioned above paid by me/us, which shall be refunded to me/us with 60/0 simple interest per annum only if the Company decided to refund the said qmount to me/us.

0 That vide letter dated 09.09.2015, the allotment was confirmed by the respondent.

Further vide letter dated 04.LL.2015, it was clarified by the respondent that the maintenance charges on possession of the unit shall be paid by the incoming lessee directly to the developer and no maintenance charges shall be charged for the period up to which the property is being leased out. g) That the complainants were; thnt touch with the respondent for executing a builder buyer 'leven after receiving the full amount ffi-GUNUGI?AM from the complainqd's;4$ e' respondelt kept dilly-dallying the complainants on "npl#6id{i o* *i. ei"iirv;the complainants received #' 'iivil*' ' t an e-mail dated 0Sg"fOta frqny_tle responqef*?tating that "due to legal implications as p.F*t-bfugg*h $.Eiif Laws, tr,*=.eSfiondent have suspended all return-based r"ffift'f.ffu, fft .1a shall n", U#ling any more product in :ii the same format." tt ##.slfufthe; asiured thai'ihe detailed communique will be sent in November. "''"" -'! tt*S: h) That upon constanffi,?;l',ree,:qfJ th3 comdainffis, the respondent sent an email dated 2L.Offedhg,'sdhtiii#thlt thC respohdert is reconciling the account as of 30.06.f019 anfl tdisbursement shall follow, to be completed within eo days i, jTill;iilL;*.#'q'"' ! ' i) The complainants therefore, wrote an e-mail dated L7.06.2023 for the refund of amount paid by them. d by them.

The respondent has only threw a bait by issuing the cheque for sum of Rs.

34,69 792 /- in the name of complainants that too after 2 months of signing of the EOI and have gone into silence since the last payment of assured return.

The respondent has also failed to complete the construction and deliver the possession of the allotted unit till Page 6 of 21, HARTRA W-GUI?UGRAM Complaint No.

5669 of 2023 date.

Moreover, no communication regarding the construction was ever been done due to the malafide intent of the respondent. j) That as per e-mail dated 09.11..2018 sent by the respondent, it clearly appears that the respondent has even pulled its hands back from giving away the assured monthly return and have no intention to complete the project.

The complainants have invested their hard-earned money in booking of unit in the project.

However, the respondent till date has not complied with the terms of expression of interest dated 09.09.2015 nor acted in compliance of lettep-.:$,9}$$1iit04,11.2015 despite the complainants .,, . ;J C.

Authority in many Lases againsfllhe respondent.

At the time of introduction ,ii- of RERA Act, the proibct was an opgoringprol,ect and it was mandatory for it. :'. f the respondent to g5t th;-,sa{.e iegistered un{:Lr the Act.

However, the Relief sought by the .orripf"ind;fffit;t'. , ' The complainants hpve sought thffbttowing relief(s): i.

Direct the respondent to fefund Rs2z,l4,zso/- so paid by the complainants along with intei-bsi @ 1.Bo/oper annum. ii.

Direct the respondent to pay assured monthly return from August, 2 01 5 @ Rs.75.83/- per sq. ft. till the time the building is ready for possession and thereafter Rs.65/- per sq. ft. after completion of the building along with interest @ l9o/o per annum. iii.

Direct the respondent to pay Rs.3,00,000/- on account of mental agony and harassment. iv.

Direct the respondent to pay litigation expenses amounting to Rs.1,0 0,0 00 / -.

00 / -.

On the date of hearing, the authority 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 guilty or not to plead guilty. page 7 of 21, k) D.

6. a) ffiHARERA ffi*GURUGIIAM Complaint No.

5669 of 2023 Reply by the respondent.

The respondent contested the complaint on the following grounds vide its reply dated 27 .03.2024: That the complainants have got no locus standi or cause of action to file the present complaint, same being based on an erroneous interpretation of the provisions of the Act.

The complainants herein are not allottee since no unit till date has been allotted in favour of the complainants.

That as per Section 2(d) of the Act of 20L6,0'allottee" in relation to a real estate project, means the person to whom a plot, apartment or building, as the cqse may be, has been ..-- :: ; ] allotted, sold (whether as frrrft # old) or otherwise transferred by the promoter, and includes the pe ffi subt"Qr"ntly acquires the said allotment ., through sale, transfer or otherwisqQQt-dbes not include a person to whom such ,*$;,t $\rh,"*l **q. plot, apartment or buil-dinii"a;,rh.UffiV'mtai%e, is.siven on rent.

However, the plot, apartment or buildfu$g;flfrrffi\#ih4tit given on rent.

However, the - ,: i ja rt,L'i -***:.*.. * records placed on ffiOj'Bh,'6-w nd"sffi8ti"ffid of any allotment or any BBA being executed trffi # *63rT 'x & k& bl rhat the preser,.h&h,p-d'r$, &",ffi,"#e&ffi$enaute in the eyes of the lawasthereliefsbffifu.ffio#th&.&d#ffidntscannotbesaidtofall within the realm of lu Upon the enactment of the BanningofUnregu,","oW2oLg,the.AssuredReturn,or any'Committed Remdp'ffilhffiffiffi"ffiave been banned.

The re- spondent .o,nprnft,Sffikffiffierbffi&6r@-om th e sE B I b oard can - not run, operate, ffied,ffiffi.n.me. iffi.n.me.

Further, the en- actment of BUDS read with the companies Act, 2013 and the Companies (Ac- ceptance of Deposits) Rules, 2014, resulted in making the assured re- turn/committed return and similar schemes as unregulated schemes as be- ing taken within the definition of 'Deposit.' c) That without prejudice to any other rights of the respondent it is submitted that the complainants have paid Rs.22,L4,250 /- however, except photocopy of some cheques nothing is shown to prove that payments, if any, were paid Page 8 of21 ffi ffi sild{ q{i HARTRA GUl?UGI?AM Complaint No.

5669 of 2023 for allotment of any unit.

The complainants have filed a baseless and vague claim for refund and payment of assured return even though no assured re- turns or allotment have ever been made by the respondent.

Further the claim of right to seek refund is emanating from a transaction in 2015, the complainants cannot be allowed to knock the doors of this Authority in 2023, i.e., after B years and the present complaint ought to be dismissed since it suffers from delay and laches. d) That as per Section 3 of the BUDS Act all Unregulated Deposit Scheme have been strictly banned and depos,iti, " L.,;s""," indirectly promote, operate, i5iU6'eht advertisements soliciting participa- S;,i;:" -. tion or enrolment in; or ,,g:.pt$f[giit. ttrur, the section 3 of rhe BUDS Act, :' makes the assured retuin .. .::..'- 4\l bUrHers and promoter, illegal and punishable under laiw, Further I saau=$ltib,s Exchange Board of India Act, Lee 2 (h erei n ffi $r"...#" #f.nO &ffi ,re I nve stment sch em e s as derined under t&m #ffiry,F th# ffid"r"'ated by a registered person/companyWffi ffiffiffimd#y' e) That further ttre Hon Haryana in cwP No.

26740 of 2022 titredr, "rorruW India & ors.",took the cogni- zance in respect of&fff;iirffi,f wryffikftwwpffits schemes Act, 2019 and resrraineci the uni# Adilil#fufu#eg&na r. u#eg&na r.om taking coercive steps in crimin"r cffi{ryh$ffirc&ffiny for seeking recovery against deposits till the next date of hearing.

That in the said matter the Hon'ble High Court has already issued notice and the matter is to be re-no- tified on 20.03.2024.That once the Hon'ble High Court has taken cognizance and State of Haryana has already notified the appointment of competent au- thority under the BUDS Act, thus it flows that till the question of law i.e., whether such deposits are covered under the BUDS Act or not, and whether this Hon'ble Authority has the jurisdiction to adjudicate upon the matters Page9 of21 HARERA Complaint No, 5669 of 2023 coming within the purview of the special act namely, BUDS Act,2019, the present complaint ought not be adjudicated.

That further in view of the pendency of the CWP 267 40 of 2022 before the Hon'ble High Court of Punjab & Haryana, the Hon'ble Haryana Real Estate Appellate Tribunal, in Appeal No.

647 of 2021while hearing the issue of as- sured return, considered the factum of pendency of the writ, wherein the question regarding jurisdiction of any other authority except the competent authority under Section 7 of the Banning of Unregulated Deposits Schemes Act,201,9.

That Hon'ble Haryafial.rlRealrEstate Appellate Tribunal after con- risdiction in assured return m ffiUflir:{,}"ea the matter as any order vi- !#:dflthe Hbn'ble High Court would be bad n't O e Ubn'ble High Court would be bad in law.

Thus, the Hon'ble Authority should consider the act of Hon'ble Har- r-.r v.Ear t E/I till final adjudicatiql o iiellate Trif unal" and ket r of CWP 267 40 of 2022. yana Real Estat.

4fup $ate Trifuna,l"and keep the present matter pending s) rhat the assur"o .ffiffim.rm. &r&r&ffirated by the respondent has become infru"r thus the relief prayed for inthepresent.o*pl,iWtotheoperationoflaw.Asa ffiHli1 J;I"ffiffiffiffiffiffint of Rs 22'7 4'7 s0 /'ti'' h) rhat the complai. e complai.ffifuPfleffiffireefuffied returns, and this Au- thority has no jurisdiction to entertain the present complaint as has been decided in the complaint case no.

175 of 2018, titled as "Sh.

Bharam Singh and Ors.

Vs.

Venetian LDF Projects LLP" by the Authority itself. i) That further in the matter of |asjit Kaur Grewal vs.

M/s MVL Ltd. (Complaint No.

58 of 2018), the Hon'ble Real Estate Regulatory Authority, Gurugram has taken the same view of not entertaining any matter related to 'collective investment scheme'without the approval of SEBI.

GU11UGRAM i:., a;::l Act,201,9.

That Hon'ble t"r{ilt ,,,, Estate Appellate Tribunal after con- sideration of the pendency offfip'eitinent question regarding its own ju- Page 10 of21. ffiHAREI?A ffi- GUIIUGRAM j) That vide email dated 31.10.2018, the respondent sent a communication to all its allottees qua the suspension of all return-based sales and further promised to bring detailed information to all investors of assured return- based projects.

The respondent also sent another e-mail dated 30.11.2018 detailing therein the amendments in Iaw regarding the SEBI Act, Bill No.

85 and other statutory changes which led to stoppage of all the return based/assured/committed return based sale.

The email communication of 29.02.20L6 also confirmed ,o ,h._.:llottees that the project was ready and available for leasing.

That "n;fi$j.ffiffi18, respondent sent a clarificatory ".,.h/!qFw.A l '-iil iiill f##NS.:: :..rx: email stating that the assure{iir-ffi.{Snd other committed return would '$r{sp-gpffi;':.' stop altogether and alter4,atiVQylpli'd'thq allottees an option to shift ro a project of the respondent in the vicinity, further the allottees who were keep to receivu quuflt.rfy.utu.ni'the respond.nt, have a SEBI registered ^j' product which offeredAquarterly retuiins witft'fixed tenure.

That the issue ."t . :. regarding stoppage g| ir.:rt.d7.&*itt1f letyii ,"0 reconciliation of all accounts as of |uly ffighrrs at$o . rrs at$o .[-mriliicate'd Witn all the allottees of the ' , , ;. concerned project.

Fuither, the r,g,gF.gnaeflt intimated to all its allottees that inviewofthelegal.r,,Wfnewlawstheamendmentto ,'# ffi ::ffi:ffiNffi ffi #ffi*: :: : H: :Ti:ffi : toallitsallotte"'ffimb"tffidpossibleleasingofthe Block A, B, D, E & F in the project INXT City Centre. k) That for the fair adjudication of grievance as alleged by the complainants, detailed deliberation by leading evidence as well as cross-examination is required, thus only the Civil Court has jurisdiction to deal with the cases requiring detailed evidence for proper and fair adjudication. ll That the complainant allege that an expression of interest was signed by the complainants in 20LS yet nothing was proceeded further thereon and the complainant fails to show any agreement or allotment for which claim ofl Page 11 of21 Complaint No.

5669 of 2023 7. ffiHARERA ffi" GURuGRAM Complaint No.

5669 of 2023 assured return and refund is being demanded in the present complaint.

The onus is upon the complainants to show that the alleged cause of action arose be in 2015 and yet the complainants did not file any such claim.

That the inac- tion of the complainants is a patent acquiescence and the complainants can- not demand recovery after a massive delay of B years.

The complainants are attempting to harass the respondent by engaging and igniting frivolous is- sues with ulterior motives to pressurize the respondent.

Thus, the present complaint is without any basis and no cause of action has arisen till date in favour of the complainants a4d t*+ *he respondent and hence, the com- plaint deserves to be dismiss Copies of all the relevalpdd ::l rl ril decided based on these undisputed documents and submission made by the ,,J. :' ."t' t '' '-ti furisdiction of the authority: The authority observes that it hds territor,ial as well as subject matter jurisdiction to adjudicate',the1 present complaint for the reasons given below. ,,.-i . .:.

E. i . .:.

E.

I Territorial iurisdiction 9.

As per notification no. ,!/92/20t7-ITCP dated 14.1,2.201,7 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 Subiect matter iurisdiction l0.Section 11(+)(a) of the Act,20t6 provides that the promoter shall be responsible to the allottee as per the agreement for sale.

Section 11(4)(a) is reproduced as hereunder: Page 12 of il E.

B.

HARERA W* GUIIUGI?AM "86, From the scheme of the Act t and taking note of power of Complaint No.

5669 of 2023 Section fift)(a) Be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulations made thereunder or to the allottees as per the agreement for sale, or to the association of allottees, as the case may be, till the conveyance of all the apartments, plots or buildings, as the case may be, to the allottees, or the common areas to the association of allottees or the competent authority, as the case may be; Section S4-Functions of the Authority: 344 of the Act provides to ensure compliance of the obligations cast upon the promoters, the allottees and the real estate agents under this Act and the rules and regulations made thereunder.

11.So, in view of the provisions of ffiAct quoted above, the authority has complete jurisdiction to decid"g*t[;;,,9rmplaint regarding non-compliance of obligations by promoter leaving rr.l*1*9.e_,f='9,,.1n.pensation which is to be decided by the adiudicating office;ritp,y,,I,t11*:-$'-.b-y tfrg complainants at a later stage.

12.

Further, the authoripffiffitlffi$r,Uoee ing with the complaint and to .". . ._ , {:,iH:i**d#SI#.s ,,_ grant a relief of r$Y. ef of r$Y.ff#in thr#P*enjp.1,mafteyih view of the judgement passed by the n".6-ffi f,pex"co"utt.ff rurr;tg rfi rro^oters and Developers i , 'l ;. .,''* Private Limited W*SE{i frU.F. and Orsi'(Sqp.ra) and reiterated in case of *: M/s Sana Realtors *;r^si*Ml*tefi,a bthg,# Union of India & others SLP (Civil) No.

73005 of ibV,N,ffiedpn lz.aii.Zozzwnerein it has been taid . ' HB* down as under: a'detg.iled taference has been made A;A ,, Ji dblfheated with the regulatory authority and adjadirqlirq.offi9gr, wfiatfinallll..culls out is that although the Act indicqEx'phe diittnct eypyessibns like.ie|ltnd', 'interest', 'penalty' and 'compensation', a conjoint f:eading of Sections 18 and L9 clearly manifests that when it comes to refund of the amount, and interest on the refund amounl or directing payment of interest for delayed delivery of possessio4 or penalty and interest thereon, it is the regulatory authority which has the powerto examine and determine the outcome of a complaint, At the some time, when it comes to q question of seeking the relief of adjudging compensation and interest thereon under Sections i.2, L4, 1_B and L9, the adjudicating officer exclusively has the power to determine, keeping in view the collective reading of section 77 read with section 72 of the Act. if the adjudication under Sections 72, 74, 78 and 79 other than compensation as envisaged, if extended to the adjudicating officer as prayed thac in our view, may intend to expand the ambit and scope of the ( Page 13 ofZI ffi ffi wt{ qqd HARERA GUt?UGRAM Complaint No.

5669 of 2023 powers andfunctions of the adjudicating fficer under Section 71 and that would be against the mandate of the Act 2076." 13.

Hence, in view of thle authoritative pronouncement of the Hon'ble Supreme Court in the case mentioned above, the authority has the jurisdiction to entertain a complaint seeking refund of the amount and interest on the refund amount.

F.

Findings on the obiections raised by the respondent: F. ondent: F.I Obiection regarding maintainability of the complaint.

14.

The counsel for the respondent has raised an objection that the complaint HARERA Gurugram as the,spm,e.riStarred by limitation. ' ' t''l:'l"' 15.

On consideration of the:documents available on record and submissions complaint in the year 2023 li I lfi*rK.{,:f,i::r-.;r :'' 8.4qift[1,.-HiEhuse of action accrue on 09.09.2016.

Therefore, it is submitted th plaint cannot be filed before the *.JL*w there is nothing on record t0:sub !-iafttlhdfact that allotment was made in favour of the complai made by both tfr./fu#tias, thCtuth-grity obseryes that the expression of interest was signed*ly}''oth;thft PQ[ties o1t 09*0$40tS.

As per clause (a) of i**- ' :' tr the said expressiorl o"f,i,rterest, thelhllo.,tm-n ol3.commercial unit was to be = j i {:r : ':" :"' llte of this letter.

However, offered with in a pefipdi.p!# $ontfis fropfte d 16.

It is pertinent to mention here that the said, 1id project of the allotted unit is an ongoing project, lnd'rtfl yoqpog$eatl.pqolqofer ,has failed to apply and obtaining the Cc/pawC@fil{ &a-te: As-per proviso,tci section 3 of Act of 2016, ongoing projects on the date of this Act i.e., 28.07.201,7 for which completion certificate has not been issued, the promoter shall make an application to the authority for registration of the said project within a period of three months from the date of commencement of this Act and the relevant part of the Act is reproduced hereunder: - "Provided that projects that are ongoing on the date of commencement of this Act and for which the completion certificate has not been issued, the promoter shall make an application to the I Page L4 of2l HARERA Complaint No.

5669 of 2023 Authority for registration of the said project within a period of three months from the date of commencement of this Act" 17.

The legislation is very clear in this aspect that a project shall be regarded as an "ongoing project" until receipt of completion certificate. rtificate.

Since no completion certificate has yet been obtained by the promoter-builder with regards to the concerned project.

18.

Moreover, it is observed that despite passing a benchmark of due date of making an allotment in favour of the complainants on 09.09.2016, till date it has failed to make an allotm.r}.ll favour of the complainants and thus, the cause of action is contrg,I#*ffi4late and recurring in nature.

The authority relied upon Section-ffiffiffiF Limitation Act, !963, "Continuing ,&.$trdftft}.:s- , . breaches and torts" ,nq-q1,I.luyan* porJiol of the same is reproduced as under for ready.ur.rp**ffi,,',;;* , d qB' afl +uc$r\'*.1':","'.k +h %r",.

22, Continuing breaches and torts- In the case of a continuing breach of contract or in the case of a continuing torl a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, coltlyq @ 19.

Keeping in view ,h\ffi,;ffidffiac& {ha trq&l pdsition, the objection with regard to the comptaffip'pffii:i"rf&4"UyTffidation is hereby rejected.

F.II Obiection regardin'ff'"'l,nfillffiffiiilhfun of assured return due to implementationof BU 20.

The respondent/promotei raiied the contention that the respondent has stopped the payment of assured return due to implementation of BUDS Act g '; ' 1r: :" . by legislature, as thd,#UDS,#cg.,bAflq;tlie ibspondent for making payment of assured return and assured rental linked with sale consideration of immovable property of allottee(s).But the plea advanced in this regard is devoid of merits as the complainants wishes to withdraw from the project and are seeking refund of the amount paid against the allotted unit.

Hence, the plea w.r.t. non-payment of assured return is hereby dismissed.

F.III Pendency of petition before Hon'ble Puniab and Haryana High Court regarding assured return. t Page 15 of21 W-GUI?UGRAM ffi ffi v{t{ uqi 21. t{ uqi 21.

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, 20t9 and restrained the Union of India 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. zz.With respect to the aforesaid contention, the authority place reliance order dated 22.11,.2023 in CI{,P N,q, 25740 of 2022 (supra), whereby '.i;iii; i Hon'ble Punjab and Haryana ffi .rt has stated that- HARERA GUl?UGl?AM "...there is no sky against the in further in the o complaint No.

5669 of 2023 on the ;-.,:,ili iudioation on the pending civil ,tg.I.et BBgulatory Authority as also tnd thby ore. at liberty to proceed dr.€ peiaingtil,:ith them.

There is no scupe lur urry 1ff,"s$Yr#L;tur utcuctarL ,,.*,i.),: lfi k, Thus, in view of thd q}%iru, the"agt[dt"ifu har drfcillep to proceed further with JiN the present maftef,l ti,l).', ::l i 1+ , = G.

Findings on relief do"ughtmr the fpntplai;tb-n$.

G.I Direct the resp&idbnt'*tg, rgfurrd tsl2Z,l4,25o/- so paid by the c o m p l a i n a n ts a l o n g' w,,{,.

Ii h_IS fffi @1ft B o/np e r a n n u m.

G.II Direct the respondent td pa}, ,honthly return from August, 2015 @ Rs.75.83/- pqf sg. ftffiill $qti6re fh=-g ildjng is ready for possession an d th e reafter Hs, 45 /if. -fiup, p,q,trFffift e g; ep;npl$ti o n o f th e b u il d i n g a I o n g with interest @ 18o/o per annum.

23.

During the course gf la.st pro,.9,g9d,ip_gs dated 25,09,:2024,the counsel for the complainant submi"tted ttiat he is restricting its relief to that of refund only along with interest at the prescribed rate.

In lieu of the same, relief no.

G.l as to assured monthly return becomes redundant and Authority would now only deliberate upon relief no.

G.t.

24. .

24.The factual matrix of the case reveals that an expression of interest was signed by the parties on 09.09.2015 and a priority no.

P-264 for a unit admeasuring 500 sq. ft. was allocated to the complainants.

The complainants have paid the entire sale consideration of Rs.2 2,L4,250 /- ?) Page 16 of 21 ffiHARER,.4 ffi.GuRUoRAM the date of signing the said expression of interest. 'f hereafter an acknowledgement of expression of interest letter dated 04.11.2015 was sent by the respondent to the complainant, which provided for paymcnt of assured returns to the complainants @ Rs.75.83/- per sq. ft. till completion of the project and thereafter, @ Rs.65/- pcr sq. ft. from thc darc of completion of construction of said unit for upto 35 months or till the said unit is put on lease, whichever is earlier.

However, it is important to note that no builder buyer agreement was entered into between the parties.

Therefore, the due date of possession had to be calculated from the datc of signing of expression of interest between the parties in view of "Fortune Infrastructure and ors. vs.

Trevor D'Lima and ors. (1z,0s.z0l? - sc); MANU/SC/0?53/20lB."Accordingly, the due date of possession comes our to be 09.09.2018.

As per the said agreement, the respondent developer was under an obligation to further lease out the unit of the complainant post completion.

25.

The complainant states that there were no signs of completion of the project and therefore, vide an e-mail dated 17.06.2023 the complainants intend to withdraw from the project and sought refund of entire amount paid by thenr under the proviso to Section 1B(U of the Act.

Section 1B[1) proviso reads as under. "section 78: - Return of amount and compensation 1B(1).

If the promoterfails to complete or is unable to give posse.ssion of an apartment, plot or building, (a) in accordance with the terms of the agreement for sale or, as thc case nta1, be, duly completed by the date specified therein; or (b) due to discontinuance of h uance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reeson, he shall be liable on demand to the ailottees, in case the allottee wishes to withdraw from the project, without prejudice to anS, other remedy available, to return the amount received by him in respect of that apartmenl plot, building, as the case may be, with interest at such rate as may be prescribed in this behalf inclucling compensotion in Complaint No.

5669 of 2023 the manner as provided under this Act Page 17 ol 21 ffiHARERA ffi- eunuenAM Complaint No.

5669 of 2023 26.

Keeping in view the fact that the allottee-complainants wishes to withdrar,r, from the project and seeks refund of the amount received by the promoter in respect of the unit with interest, the matter is covered under Section 1B(1J of the Act of 201,6.

The due date of possession was 0g.Og.ZO1B and occupation certificate of the buildings/towers where allotted unit of thc complainants is situated is not yet received by the respondent.

Accordingly, the respondents are liable to return the amount received by him from the allottee in respect of the subject unit with interest at the prescribed ratc, 27.

Admissibility of refund along with prescribed rate of interest: The, complainants are seeking refund the amount paid by them at the prescribed rate of interest as provided under Rule L5 of the Rules, ibicl.

Rule 15 has been reproduced as under: Rute 75, Prescribed rate of interest- [Proviso to section 72, section lB and sub-section ft) and subsection (7) of section l9l (1) For the purpose of proviso to section 12; section 18; and sub-sections (4) and (7) of section 19, the "interest at the rote prescribed" shall be the state Bank of India highest marginal cost of lending rate +2%. rate +2%.: Provided that in case the State Bank of India marginal cost of lending rate (MCLR) is not in use, it shall be replaced by such benchmork lending rates which the State Bank of India may fix from time to time for lending to the general public.

28.

The legislature in its wisdom in the subordinate legislation under thc provision of Rule 15 of the Rules, ibid has determined the prescribed rate of interest.

The rate of interest so determined by the Iegislature, is rcasonablc and if the said rule is followed to award the interest, it will ease uni[or.nr practice in all the cases.

29.

Consequently, as per the website of the State Bank of India i.e., https://sbi.co.in , the marginal cost of lending rate [in short, MCLRJ as olt date i.e., 22.01,.2025 is 9.!Oo/0.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate + 2o/o i.e., ll.lOo/o.

30.

The definition of term 'interest' as defined under Section 2(za) of the Act provides that the rate of interest chargeable from the allottee by thc I)agc 1B of'21 ,/ ffiHARERA #* eunuGRAM 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" meqns the rates of interest payabte by the promoter or the allottee, as the case may be:, Explanation. -For the purpose of this clause_ i' the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest whiih the promoter shall be liable to pay the allottee, in case of defautt; ii' the interest payable by the promoter to the allottee shall be from the date the promoter received the amount or any port thereof titi the daLe the amount or part thereof and interest thereon is refunded, and the interest payable by the allottee to the promoter shall be fiom the date the allottee defaults in payment to the promoter till the dati it is paid;,, 31' The non-compl non-compliance of the mandate contained in Section 1,1(4)[a) read with Section 1B(1) of the Act on the part of the respondent is established.

As such, the complainant is entitled to refund of the entire amount paid by them at the prescribed rate of interest i.e., @ 1,1,.100/o p.a. (the State Bank of India highest marginal cbst of lending rate IMCLR) applicable as on date +20/o) as prescribed under Rule L5 of the Haryana Real Estate (Regulation and Development) Rule s,2017 from the date of each payment till the actual datc of refund of the amount within the timelines provided in Rule 16 of thc Haryana Rules, 201,2, ibid,.

32' However, since the bomplainant-allottees are withdrawing from the project of the respondent by seeking relief of refund of entire amount paid by thenr along with interest at the prescribed rate, whatever financial bcncfir accrued to the complainants in lieu of the said allotment is to be refunded by the complainants to the respondent.

Therefore, the amount of assurecl returns paid by the respondent to the complainant-allottees shall bc adjusted/deducted from the payable amount.

33' The present case was listed for pronouncement of order on 1 B.1.z.zoz4.

However, during the course of proceedings the counsel for the respondent submitted that assured return amounting to Rs.1 L,75,396/- has becn paid Complaint No. of 202i) Page 19 of 2l ffiHAI?ERA #-eunllGRAM to the complainant contrary to the claim that Rs.3 4,6911- has been paid on that account.

In the interest of justice, the Authority directed the respondcnt to submit a copy of the assured return statement in the registry of' Lhc authority so that there is no complication w.r.t execution of the order at it later stage.

34.

It is important to note that no document has been placed on record by the respondent substantiating that assured return amounting to Rs.1 1,7 5,396 / - has been paid to complainant contrary to claim that Rs.3 4,69U -.

3 4,69U -.

I{owcvcr, the counsel for the complainant has filed an affidavit dated 16.01.2025 objecting to the same stating that no assured return has been paid to thc .ffil;ffilffi: 01.10'2018 as had been admitted bv the respondent irr 35.

The Authority is of the view that the respondent in para no.

5 of its reply dated 27.03.2024, itself admitted that no assured returns have ever been given by the respondent to the complainants.

Also, the respondent has failed to place on record any document to substantiate that an amount of Rs.11,75,396/- has been paid to complainant on account of assurecl returns.

Therefore, the Authority observes that only an amount of Rs.34,69 1l- as had been admitted by the complainant-allottees in their pleadings shall be adjusted/deducted from the payable amount on account of assured returns.

G.III Direct the respondent to pay Rs.3,00,000/- on account of mental agony and harassment.

G.IV Direct the respondent to pay litigation expenses amounting to Rs.1,00,00O/-.

36.

The above-mentioned reliefs sought by the complainants are being taken together as the findings in one relief will definitely affect the result of the other relief and the same being interconnected.

37.

The complainants are seeking the above-mentioned relief w.r,L. compensation.

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

6745-6749 of 2027 titled as M/s Newtech Promoters and Developers Ltd. v Complaint No.

5669 of 2023 Page 2O of 27 ffiHARERA ffi"-GllttuennM V/s State of UP & Ors. has held that an allottee is enritled to clainr compensation and litigation charges under Section s 1.2, 14, lB and Section 19 which is to be decided by the adjudicating officer as per Section 7l and the quantum of compensation and litigation expense shall be acljuriged by the adjudicating officer having due regards to the lactors mentiorrcd in Section 72.

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

H. penses.

H.

Directions issued by the Authority: 3B.Hence, the Authority hereby passes this order and issues the following directions under Section 37 of the Act to ensure compliance wi[h obligations cast upon the promoter as per the functions entrusted to thc Authority under Section 34[0 of the Act of 2016: I.

The respondent is directed to refund the entirc amount paicl by thc complainants, i.e., Rs.

22,14,250/- along with interest at the ratc o1 1,1,.1,00/o p.a. as prescribed under Rule 15 of the Haryana Ileal Estatc (Regulation and DevelopmentJ Rules, 201,7 from the date of each payment till its realization.

However, the amount of assured return already paid by the respondent to the complainants, i.e., Rs,34 ,691.g21- w'r.t. unit allotted shall be adjusted/deducted from thc payablc amoupL.

II.

A period of 90 days is given to the respondent to comply with the directions given in this order and failing which legal consequcnccs would follow.

39.

Complaint stands disposed of.

40.

File be consigned to the Registry.

Ashok Sa Haryana Real Estate Regulatory Authority, Gurugram Complaint No, 5669 of 2023 Dated: 22.OL.2025 Page 2l of 21