RAJAN MAYOR AND MEENAKSHI MAYOR vs ORRIS INFRASTRUCTURE PVT LTD

*HARERA # aJRUGRAM BEFORE THE HARYANA REAI ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint No.

361 of 2023 1.

Rajan Mayor, 2.

Meenakshi Mayor, Both R/o: - D-2, Ansal Villas, Satbari, New Delhi-L7007 4.

M/s Orris Infrastructure Regd.

Office At: RZ-D- South West Delhi, Del CORAM: Ashok Sangwan APPEARANCE: Gaurav Rawat [Advoca Charu Rustagi (Advocate] Complaintno. : Date of complaint : Date oforder i Versus 36L of 2O23 02.o2.2023 27.O3.2024 Complainants Respondent Member Complainants Respondent ORDER 1..

The present complaint has been filed by the complainant/allottees under section 31 ofthe Real Estate (Regulation and Development) Act, 2016 (in short, the ActJ read with rule 28 of the Haryana Real Estate (Regulation and Development] Rules,2017 (in short, the Rules) for violation ofsection 11(4) [a) ofthe Act wherein it is in ter olio prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provisions of the Act or the h{vl: TF, \E li lxl< liVSt ,!""-.

I - 6.Lli' Page 1 of 35 HARERA GURUGRAM Complaint No.

361 of 2023 Rules and regulations made thereunder or to the allottees as per the agreement for sale executed inter se.

A.

Unit and proiect related details 2.

The particulars of unit details, sale consideration, the amount paid by the complainants, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: Sr.

No.

Particulars Details l.

Name of the project 2.

Proiect area 9.052 acres Commercial colony 4.

260 of 2007 dated, 1,4 .7t .2007 License valid till Licensed area 9.05 acres License holder M/s Seriatim Land & Housins pvt.

Ltd.

HRERA registered/ not registered Not registered 6.

MOU executed on 26.09.2008 lPage 26 of complaintl 8.

Assured Return clause tt Kt 2.

After receipt of consideration of Developer shall give an return @ 68/- per sq. ft. per month i.e.

Rs. h i.e.

Rs.1,36,000/- (Rupees Sixty One Lac Thirty-Six Thousand only) with effect from 6th October,2008, on or before 7th day of every month for which it is due upto the first 36 months after completion of the building or till the date the said Office Space is put on lease, whichever is earlier.

IPage 28 of complaintl 9.

Unit no.

219,Znd Floor, Tower-B (pg.

41 of complainrJ Page 2 of35 / lFIoreal Towers, Sector 83, Gurugram, f,Iaryana Nature of the proiect DTCP license no.

13.71..2024 HARERA GURUGRAM @r,i,fi;.ilrrortl 10.

Unit admeasuring as per SBA dated 15.04.2009 2000 sq. ft. (super area) fpage 19 of complaint] 11.

Space buyer agreement executed betlveen complainant and respondent 15.04.2009 (pg.

36 of complaintl l12 Possession clause llOl Scnedute 1or eoxessnn o1 tni I said Unit I The company based on its present plans lond estimates and subject to oll just lexceptions. contemplates to complete lconstruction of the said Building / soid I Unit within the period of 36 months from I the date ol execution of the Space Buyer I Agreement by the Compony or Sonction of Plans or Commencement ol Construction whichever is loter, unless there shall be delay or there shall be failure due to reasons mentioned in Clauses (11.1). (11.2). (11.3) and Ctause (38) or due tofailure ofAllottee(s) to poy in time the price of the said Unit along with all other charges and dues in accordance with the schedule of payments given in Annexure I or as per the demands raised by the Compony from time to time or any failure on the port of the Allottee (s) to obide by any terms or conditions of thrs Space Buyer Agreement. (pg.

52 ofcomplaintJ 13.

Date of sanction of building plans Not on record 14.

Date of commencement of construction Not on record 15.

Due date of possession 15.04.201'2 (calculated as 35 months from the date ofbuyer's agreement) 76.

Total consideration as per statement of account dated Rs.87 ,57 ,7 80 / - Page 3 of 35 27 .03.

35 27 .03.2018 at page 79 of complaint (including BSP, EDC & IDC, Utiliry Charges, GST, VAT, IFMS & One-time electriciW connection charsesl 77.

Amount paid by the complainant as per statement ofaccount dated 27.03.201,8 arpage 79 of complaint Rs.66,00,000/- 18.

Occupation certificate t6.08.20t7 lpage 17 of replyl 79.

Offer of constructive possession 27.03.2078 fpage 19 of reolv) 20.

Unit shifting Ietter from tower B to tower A being an unintentional error/mistake 28.06.2018 fpage 21 of reply) ffiHARERA S-GURUGRAI,I Complaint No.

361 of 2023 B.

Facts ofthe complaint 3.

The complainants have made the following submissions: _ I.

That relying on various representations and assurances given by the respondent, the complainants booked a commercial unit under assured return plan having 2000 sq. ft. super area, in the project of the respondent named "Floreal Towers,, at Sector g3, Gurugram by paying an amount ofRs.66,00000/- as full and final payment towards the said booking to the respondent and the same was acknowledged by the respondent on 2 7.09.2008.

II.

That after receipt of consideration, the respondent to dupe the complainants in their net even executed MoU dated 26.09.200g with the complainants just to create a false belief that it will pay investment return on down payment of Rs.66,00000/_ @ rate of Rs.68/- per sq. ft per monrh i.e.

Rs.1,36000/- with effect from 06.10.200g on or before 07th of every month for which it is due upto the 36 months after completion ofthe building or tillthe date the said office space is put on Page 4 of 35 v HARERA ffi, GURUGRAM V.

II I.

IV.

Complaint No.

361 of 2023 lease, whichever is earlier.

Thereafter, a unit bearing no.

ZLg, Znd Floor in Tower-B, admeasuring 2000 sq. ft in the said project was allotted to the complainants vide space buyer agreement dated 15,04.2009 for a total sale consideration of Rs.5600000/_ and the same was duly paid by the complainants in time bound manner under assured return plan. turn plan.

That the complainants wrote emails dated tO.O4.ZO78, 26.02.2O1,g to the respondent regarding the monthly assured return which was due since long time but respondent instead of replying to the above said query send reminder letter to the complainants.

That the respondent has failed to meet t}re obligations and with malafide intentions has collected a huge amount of money from the complainants.

This act on part of the respondent has not only caused huge financial losses but has also offset the family life.

That the respondent at the time of execution of MoU agreed to lease out office space at a minimum rental of Rs.6g/- per sq. ft. per month after completion of the construction of the proposed building as per clause 5 of the MOU.

That respondent was liable to hand over the possession ofthe said unit before 14.04.2012 so far from completion as per clause 10.1 of the space buyer agreement, but the builder offered possession for fit_out on 10.03.2017 without getting occupation Certificate and also unit was not in habitable condition.

Thereafter, on Z7.O3.ZO11, the respondent offered constructive possession of the unit, but the unit was again not in habitable condition.

That on 28.06.2018, the respondent raised an illegal and unjustified demand of Rs.1300980/- through demand letter dated 28.06..207A.

VI, f VII.

Page 5 of 35 ffiHARERA ffi eunuerw IX.

361 of 2023 VIII.

Further, as per construction status and absence of basic amenities respondent will take more time to give physical possession.

That the builder in the Iast LS years many times made false promises for possession ofthe unit, whereas the current status ofproject is still desolate and raw and not even 70% completed.

That respondent vide offer of possession letter dated 27.03.207g, forcibly imposed additional EDC & IDC charges of Rs.B2Z700/_, utility charges of Rs.1000000/- and IFMS deposit of Rs.250000/- upon the complainants which is unjustified.

X. tified.

X.

That the respondent had illegally and unjustifiably raised demand towards VAT of Rs.69300 /- intimidation atiempt to coerce and obtain an illegal and unfounded claim amount.

That the complainants wrote many emails and letters dated L8.09.20L9, 26.77.2019, 30.06.2020, L8.07.2020, 75.12.2020, L4.07.202L, 18.08.2022 regarding the illegal demand and multiple issues but respondent instead of replying to the above said query send reminder letters to the complainants.

XII.

That the respondent sends a maintenance confirmation letter dated 02.07.2023 vide which the respondent demanded maintenance charges @1,27440l- for the period of OT.OI.ZOZT to 31.03.2023 without having given the physical possession and without the registration ofthe flat which is absolutely illegal.

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

Direct the respondent to handover possession of the unit and to pay delay interest on amount paid at prescribed rate.

XI, c.

4.

Page 5 of 35 HARERA #" GURUGRAIV Complaint No.

361 of2023 II.

Direct the respondents to pay assured return amount @ 136000/- per month till 36 months after the actual physical possession date.

III.

Direct the respondent to quash the utility charge, one time electricity connection charge, IFMS charge, VAT charges and increase in super area.

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(a) (al of the Act to plead guilty or not to plead guilty.

Reply by the respondent.

D.

6.

The respondent has contested the complaint by filing reply dated 25.70.2023 on the following grounds: - ti) That in the present complaint, the complainant was allotted unit no.

279,2nd floor, tower A, admeasuring 2000 Sq.

Ft. in the project 'Floreal Towers', located at Sector-83, Gurugram, Haryana.

The memorandum of understanding betlveen the parties was executed on 26.09. on 26.09.2 008 and the space buyer agreement between the parties took place on 15.04.2009 wherein as per clause 10.1 of the buyer agreement, the respondent was supposed to hand over the possession within a period of 36 months from the date of execution of buyer's agreement.

That thereafter, several obstructions had taken place which hampered the pace of the construction wherein in the year, Z0l2 on the directions ofthe Hon'ble Supreme Court of India, the mining activities of minor minerals (which includes sand) were regulated.

The Hon'ble Supreme Court directed framing of Modern Mineral Concession Rules.

Reference in this regard may be had to the (iil Page 7 of 35 *HARERA Seunuennr,,r Complaint No.

351 of 2023 judgment of"Deepak Kumar v.

State ofHaryana, (2012) 4 SCC 629".

The competent authorities took substantial time in framing the rules and in the process the availability of building materials including sand which was an important raw material for development of the said project became scarce in the NCR as well as areas around it.

Further, the respondent was faced with certain other force majeure events including but not limited to non_ availability of raw material due to various stay orders of Hon,ble Punjab & Haryana High Court and National Green Tribunal thereby stopping/regulating the mining activities, brick kilns, regulation of the construction and development activities by the judicial authorities in NCR on account of the environmental conditions, restrlctions on usage of water, etc.

It is pertinent to state that the National Green Tribunal in several cases related to punjab and Haryana had stayed mining operations including in 0.A No.

171/2073, wherein vide order dated 02.11.2015 mining activities by the newly allotted mining contracts by the state of Haryana was stayed on the Yamuna Riverbed.

These orders inter-alia continued till the year 2018. year 2018.

Similar orders staying the mining operations were also passed by the Hon'ble High Court and the National Green Tribunal in Punjab and Uttar pradesh as well.

The stopping of mining activity not only made procurement of material difficult but also raised the prices of sand/gravel exponentially.

It was almost z years that the scarcity as detailed above continued, despite which allefforts were made and materials were procured at 3-4 times the rate and the construction continued without shifting any extra burden to the customer.

That the above said restrictions clearly fall Page I of 35 ffHARERA # aJRTJGRAI/ Complaint No.

361 of 2023 within the parameter "reasons beyond the control of the respondent as described under of clause 11.1 of the buyer agreement. (iii) That during that time, a writ petition was filed in the Hon,ble High Court of Punjab and Haryana titled as "Sunil Singh vs.

Ministry of Environment & Forests Parayavaran" which was numbered as CWP-20032-2008 wherein the Hon'ble High Court pursuant to order dated 31.07.2012 imposed a blanket ban on the use ofground water in the region ofGurgabnaad adjoiningareas forthe purposes of construction. rnat on pids:ii! of the abovementioned orders by the High Court, the entire construction work in the Gurgaon region came to stand still as the water is one of the essential parts for construction.

That in light of the order passed by the Hon,ble High Court, the respondent had to arrange and procure water from alternate sources which were far from the construction site.

The arrangement of water from distant places required additional time and money which resulted in the alleged delay and further as per necessary requirements STP was required to be setup for the treatment of the procured water before the usage for construction which further resulted in the alleged delay. ged delay. (iv) That orders passed by Hon'ble High Court of punjab and Haryana wherein the Hon'ble Court has restricted use of groundwater in construction activity and directed use of only treated water from available sewerage treatment plants.

However, there was lack of number of sewage treatment plants which led to scarcity of water and further delayed the project.

That in addition to rhis, labour rejected to work using the STp water over their health issues v Page 9 of 35 *HARERA db eunuennHl because of the pungent and foul smell coming from the STp water as the water from the S.T.p' s of the State/Corporations had not undergone proper tertiary treatment as per prescribed norms. [v) That on 19.02.2013, the office of the executive engineer, HUDA Division No.

II, Gurgoan vide memo no.300g-31g1, had issued instruction to all developers to lift tertiary treated effluent for construction purpose for Sewerage Treatment plant Behrampur.

Due to this instruction, the respondent company faced the problem ofwater supply for a period ofseveral months as adequate treated water was not available at Behrampur. (viJ That the occupation certificate of the tower in question was obtained by the respondent on 16.08.2017 and constructive possession of the unit was offered to the complainants on 27.03.2018 and thereafter, another letter dated 29.06.2018 was sent to the complainants informing them about the pending dues and outstanding amount of the assured returns and it was understood that since the outstanding amount to be paid on behalf ofthe complainants is more than the amount of the assured returns, the same shall be adjusted and the complainants were requested to make the balance payment so that the complainant take the possession of the unit in question. (viiJ That the complainants had initiated insolvency proceedings before the Hon'ble National Company Law Tribunal, Delhi, titled as ,,Ralan Mayor vs Orris Infrastructure pvt Ltd,,, having case no. g case no. (lB)_423 of 2017, wherein the complainant filed the said petition on same line and prayer as that of the present complaint before this Authority Complaint No.

361 of2023 Page 10 of35 ffiHARERA ffi eunuennr,rr res-judicata. (viii) That the complainant has settled the matter with the respondent vid settlement deed dated 14.11.2017 wherein the complainant has already accepted amount of Rs.13,46,400/- as full and final settlement and withdrew the company petition before the NCLT and therefore, the complainant is barred to proceed with the present complaint. (ix) That this Authority lacks jurisdiction to entertain the present complaint as the unit allotted to the complaint was under assured return scheme and therefore, the matter falls under the Banning of Unregulated Deposit Schemes Act, 2019. (x) That the respondent company cannot be made liable for the delay.

As per clause 11.1 of the space buyer,s agreement which clearly states that respondent shall be entitled to extension of time for delivery of possession of the said premises if such performance is prevented or delayed due to conditions as mentioned therein.

The answering respondent has acted in accordance with the terms and conditions of the buyer's agreement executed betlveen the parties on their own free will.

That the complainant was duly informed about the schedule of possession as per clauses 10.1 of the buyer,s agreement entered into between the complainant and respondent. (xi) That there was a change in the zoning plan due to which the land owner company, i.e., Seratum Land and Housing pvt Ltd ("Seratum"l had sent a letter regarding the approval from Director General Town and Country planning Haryana vide letter dated 74.03.2014 wherein it was also requested grant of occupation Complaint No.

361 of 2023 and therefore, the present complaint is barred by the principles of Page 11 of 35 ffiI]AREIA #,eunuenRn,l E.

7.

Complaint No. plaint No.

361 of2023 certificate and to deposit compounding charges as per prevailing policies.

On 22.05.2075 a letter from DTCp, Haryana was received by the Seratum wherein the amount of the compounding fees was informed and vide letter dated 06.09.2014, Seratum informed DTCP regarding payment of the requisite fees along with the details.

Again, the respondent as well as Seratum vide letters dated 77.11.2074 and 21,.04.201,6 respecrively requested for granr of occupation certificate but the same was issued by the statutory authority on 16.08.2017. (xii) That it is submitted that even otherwise the complainant cannot invoke the jurisdiction of the Hon'ble Authority in respect of the unit allotted to the complainant, especially when there is an arbitration clause 49 provided in the space buyer agreement, whereby all or any disputes arising out of or touching upon or in relation to the terms of the said agreement or its termination and respective rights and obligations, is to be settled amicable failing which the same is to be settled through arbitration.

Once the parties have agreed to have adiudication carried out by an Alternative Dispute Redressal Forum, invoking the iurisdiction of this Hon,ble Authority, is misconceived, erroneous and misplaced.

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

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of those undisputed documents and submission made by the parties. ,urisdiction of the authority The respondent raised a preliminary submission/objection that the authority has no jurisdiction to entertain the present complaint.

The Page 12 of 35 ffiHABEIA ffi eunuennHl 8.

361 of2023 objection of the respondent regarding rejection of complaint on ground of jurisdiction stands reiected.

The authority observes that it has territorial as well as subject matter iurisdiction to adjudicate the present complaint for the reasons given below.

E. below.

E.l Territorialiurisdiction As per notification no.

L/92/2Oll-1TCp dated 74.1,2.20j,7 issued by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose 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.

E.tl Subiect matter iurisdiction Section 11(4)(a) ofthe Act, 2016 provides that the promoter shall be responsible to the allottees as per agreement for sale.

Section 11(4)[a] is reproduced as hereunder: Section 11..,,.(4) The promoter shall- (o) be responsible for oll obligations, responsibilities ond functions under the provisions of this Act or the rules ond regulotions made thereunder or to the ollottees as per the qgreemeit for sale, or to the ossociation of allottees, os the case may be, till tie convevance of .oll the aportments, plots or buildings, as lhe cose moy be, to he allottees, or the common oreos to the association ofall;tees or the competent authoriry, os the case moy be; Section 34- Functions of the Authority: 344 of the Act provides to ensure complionce of the obligations cost upon the promoters, the allottees and the real estati ogents under this Act and the rules and regulotions made thereundei.

So, in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non_ compliance of obligations by the promoter leaving aside compensation 9.

10.

Page 13 of 35 HARERA ffi,GURUGI?AI/ complaint No.

361 of 2023 which is to be decided by the adiudicating officer if pursued by the complainant at a later stage.

F.

Findings on the obiections raised by the respondent, 11.

L Obiection regarding maintainability ofcomplaint, The respondent vide its reply dated ZS.IO. ted ZS.IO.ZOZ3 contented that the present complaint is not maintainable as the complainants had previously approached the NCLT for payment of the dues, but the matter was settled between the parties vide settlement deed dated 14.11.2017, wherein the complainants withdrew their complaint on settlement ofdues.

However, after considering the documents available on record as well as submissions made by the parties, it is determined that the settlement agreement dated l4.l7.ZO.J.Z was not a full and final settlement and was without preiudice to the respective claims, contentions and rights of the parties. tn view of the above, the contention/objection of respondent stands rejected.

F.lI Oblection regarding complainant is in breach ofagreement for non- invocation of arbitration.

The respondent submitted that the complaint is not maintainable for the reason that the agreement contains an arbitration clause which refers to the dispute resolution mechanism to be adopted by the parties in the event of any dispute and the same is reproduced below for the ready reference: "35, Dispute Resolution by Arbitrotion "All or ony disputes orising out of or touching upon or in relotion to the terms of this Space Buyer Agreement including the interpretation and validity ofthe terms thereofand the respective rights and obiigotions of the parties.shotl be settled omicably by mutuol discussion failing whici the same shall be settled through arbitration.

The arbitratioi proieeding shall L2.

Page 14 of 35 ffiHARERA S, eunuemvr Complaint No.

361 of 2023 be governed by the Arbitrotion & Conciliation Act, 1996 or any statutory amendments/modificotions thereol for the time bring in force.

The arbitration proceedings shall be held ot the corporote oflice of the Company alone at Gurgoon stated hereinqbove by o Sole Arbitrator who sholl be nominated by the Company.

The Altottee hereby confirms thot he/she shall have no objection to this oppointment. pointment.

The courts at Gurgaon qlone ond the Punjob & Horyana High Court ot Chandigarh alone shall hove the jurisdiction in all matters arising out of/touching and/or concerning this Space Buyer Agreement regardless ofthe place ofexecution ofthis Space Buyer Agreement which is deemed to be at Gurgaon': 13.

The authority is of the opinion that the jurisdiction of the authority cannot be fettered by the existence of an arbitration clause in the buyer's agreement as it may be noted that section 79 of the Act bars the jurisdiction of civil courts about any matter which falls within the purview of this authority, or the Real Estate Appellate Tribunal.

Thus, the intention to render such disputes as non-arbitrable seems to be clear.

Also, section 88 ofthe Act says that the provisions ofthis Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

Further, the authority puts reliance on catena of judgments of the Hon'ble Supreme Court, particularly i\ Notional Seeds Corporation Limited v.

M.

Madhusudhan Reddy & Anr. (2012) 2 SCC 506, wherein it h€ that the remedies provrded under the Consumer Protection Act are in addition to and not in derogation of the other laws in force, consequently the authority would not be bound to refer parties to arbitration even ifthe agreement between the parties had an arbitration clause.

14.

Further, in Aftab Singh and ors. v, Emaar LlcF Lond Ltd and ors., Consumer case no, 707 of 2015 decided on 13.07,2077, the National Consumer Disputes Redressal Commission, New Delhi (NCDRC) has held that the arbitration clause in agreements between the complainant Page 15 of35 ,l/ ffiHARERA ffi AnuennH,r and builder could not circumscribe the jurisdiction of a consumer.

The relevant paras are reproduced below: "49.

Support to the obove view is also lent by Section Zg of the recently e.n.acted Real Estou (Regulation and Development) Act, 2016 (Jor short "the Reql Estote Act"). ote Act").

Section Zg of the soid Act reads as fo owi- "79.

Bar ofjurisdiction - No civil court shall hove jurisdiction to entertain ony suit or proceeding in respect of any motter which the Authority or the adjudicoting offcer or the Appellote Tribunol is empowered by or under this Act to determine ond no injunction shall be granted by any court or other authoriry in respect of any action taken or to be taken in pursuonce of any power conferred by or under this Act.', It cqn thus, be seen thot the said provision expressly ousts the jurisdiction ofthe Civil Court in respect of ony matter which the Reol Estote Regutatory Authority, estoblished under Sub-section (1) of Section 20 or the Adjudicating Oflicer, appointed under Sub-section (1) ofsection 71 or the Real Estate Appellont Tribunol estoblished under Section 43 of the Real Estote Act, is empowered to determine.

Hence, in view of the binding dictum of the Hon'ble Supreme Court in A.

Auaswomy (supra), tie mqtters/disputes, which the Authorities under the Reol Estote Act are empowered to decide, ore non-arbitrable, notwithstonding an Arbitration Agreement between the porties to such matters, which, to a large extent, are similor to the disputesfalling for resolution under the Consumer Act.

56.

Consequently, we unhesitotingly reject the arguments on behqtfof the Builder and hold that an Arbitrqtion Clouse in the afore-stoted ki;d of Agreements between the Complainants ond the Builder cqnnot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the qmendments made to Section I ofthe Arbitrqtion Act." 15.

While considering the issue of maintainability of a complaint before a consumer forum/commission in the fact of an existing arbitration clause in the builder buyer agreement, the Hon,ble Supreme Court in case titled as M/s Emaar MGF Lond Ltd, V.

Aftab Singh in revision petition no.

2629-30/2078 in civil appeal no.

23572-23513 of 2077 decided on 70.72. on 70.72.2078 has upheld the aforesaid judgement of NCDRC and as provided in Article 141 of the Constitution of India, the law declared by the Supreme Court shall be binding on all courts within the territory of India and accordingly, the authority is bound by the Complaint No.

361 of 2023 Page 16 of 35 t/ Complaint No.

361 of2023 16. above judgements and considering the provisions of the Act, the authority is of the view that the complainants are well within right to seek a special remedy available in a beneficial Actsuch as the Consumer Protection Act and RERA Act, 2016 instead of going in for an arbitration.

Hence, we have no hesitation in holding that this authority has the re on to entertain the complaint and that the dispute does not require to be referred to arbitration necessarily.

In the light of the above-mentioned reasons, the authority is of the view that the objection of the respondent stands rejected.

III Obiection regarding the proiect being delayed because of force maleure circumstances.

17.

The respondent-promoter has raised the contention that the construction of the project has been delayed due to force majeure circumstances such as orders/restrictions of the NGT as well as competent authorities, High Court and Supreme Court orders, shortage of labour force in the NCR region, ban on the use of underground water noticed above." Therefore, in view of the ffiHARERA ffi, eunuemrrl aforesaid view.

The relevant para of the judgement passed by the Supreme Court is reproduced below: "25.

This Court in the series oljudgments ss noticed obove considered the provisions of Consumer Protection Act, 7986 as well as Arbitration Act, 1996 and.laid down that complaint under Consumer protection Act being a special remedy, despite there being qn orbitrotion agreement the proceedings before Consumer Forum hove to go on and no error committed by Consumer Forum on rejecting the application. plication.

There is reason for not interjecting proceedings under Consumer protection Act on the strength an arbitrotion agreement by Act, 1996.

The remedy under Consumer Protection Act is o remedy provided to o consumer when there is a defect in any goodsor services, The complointmeans any qllegotion in wrlting made by a complqinant hos also been explained in Section 2(c) of the AcL The remedy under the Consumer protection Act is confinii to comploint by consumer as delined under the ActJor defect or deficiencies caused by q service providea the cheap ond o quick remedy has been provided to the consumer which is the object and purpose of the Act as Page 77 of35 Y HARERA P* GURUGRAM for construction purposes, heavy shortage of supply of construction material etc.

However, all the pleas advanced in this regard are devoid of merit.

First of all, the possession of the unit in question was to be offered by 1,5.04.2012.

Hence, events alleged by the respondent do not have any impact on the prorect being developed by the respondent.

Moreover, some ofthe events mentioned above are ofroutine in nature happening annually and the promoter is required to take the same into consideration while launching the proiect.

Thus, the promoter/respondent cannot be given any lenienry on based of aforesaid reasons and it is a well settled principle that a person cannot take benefit of his own wrong.

Findings on the reliefsought by the complainants.

G.l.

Direct the respondent to handover possesslon ofthe unit and to pay delay interest on amount paid at prescribed rate.

G.ll Direct the respondents to pay assured return amount @136000/- per month till 36 months after the actual physical possession date.

In the present complaint, the complainants intend to continue with the proiect and are seeking delay possession charges as provided under the proviso to section 1B(1) ofthe Act.

Sec.

1B(1) proviso reads as under. "Section 18: - Return of amount t 1B[1). t t 1B[1).

If the promoter fails to com Complaint No.

361 of 2023 G.

18. to give possession of an apartment, plot or building, - ir""tiiii iiif*n"r" on attottee does not intend to withdraw from the project, he sholl be poid, by the promoter, interestfor every month ofdeloy, tillthe handing over ofthe possession, at such rote os may be prescribed.', 19.

Clause 10.1 ofthe space buyer's agreement dated 1,5.04.2009 provides for handing over ofpossession and is reproduced below: - 70,7 Schedule for Possession of the said lJnit "The compony based on its present plons and estimotes and subject to oll just exceptions. contemplotes to complete construction of the said Building / sqid Unit within the period of 36 months from the dote of execution of the Space Buyer Agreement by the Compony or Sanction of plons or Commencement of Page 18 of35 tr ffi ilaRERA #-euRuennlr Complaint No.

361 of 2023 Construction whichever is loter, unless there shall be delay or there shall be failure due to reasons mentioned in Clauses (11.1). (11.2). (11.3) and Clouse (38) or due to failure of Allottee(s) to pay in time the price of ihe said llnit along with all other charges and dues in occordance with ihe schedule of payments given in Annexure I or as per the demonds raised by the Compony from time to time or ony lailure on the port of the Allottee (s) io abide by aiy terms or conditions oI this Space Buyer AgreemenL', 20.

At the outset, it is relevant to comment on the preset possession clause ofthe agreement wherein the possession has been subiected to all kinds of terms and conditions of this agreement and application, and the complainant not being in dehnlt under any provisions of this agreement and compliance-: un-t[&tt provisions, formalities and documentation as prescribed by the promoter.

The drafting of this clause and incorporation of such conditions are not only vague and uncertain but so heavily loaded in favour of the promoter and against the allottee that even a single default by efault by the allottees in fulfilling formalities and documentations etc. as prescribed by the promoter may make the possession clause irrelevant for the purpose of allottee and the commitment date for handing over possession loses its meaning.

The incorporation of such clause in the buyer developer agreement by the promoter is iust to evade the liability towards timely delivery of subject unit and to deprive the allottees of their right accruing after delay in possession.

This is just to comment as to how the builder has misused its dominant position and drafted such mischievous clause in the agreement and the allottees are left with no option but to sign on the dotted lines.

Page 19 of 35 HARERA M" GURUGRAM Complaint No.

361 of 2023 21.

Admissibility of delay possession charges at prescribed rate of interest: The complainants are seeking delay possession charges at prescribed rate ofinterest. proviso to section 1g provides that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of possession, at such rate as may be prescribed and it has been prescribed under rule 15 of the rules.

Rule 15 has been reproduced as under: - Rule 15, Prescribed rate ofinterest- lproviso to section 12, section 78 and sub-section (4) ond subsection (7) ofsection tgl O For the purpose of proviso to section 12; section 18; ond sub. sections (4) and (7) of secfion 19, the ,,interest ot the rate prescribed" sholl be the State Bonk of tndia highest morginal cost of lending rqte +2%,: Provided that in case the Stote Bank oft ndia mqrginalcost oflending rate (MCLR) is not in use, it shall be replaced by such benchmark lending rateswhich the State Bonk of lndia may lix from time to time for lending to the general public.

The legislature in its wisdom in the subordinate legislation under the provision of rule 15 of the rules, has determined the prescribed rate of interest. interest.

The rate of interest so determined by the legislature, is reasonable and if the said rule is followed to award the interest, it will ensure uniform practice in all the cases.

Consequently, as per website of the State Bank of India i.e., https://sbi.co.in. the marginal cost of lending rate (in short, MCLRI as on date i.e., 27.03.2024 is 8.85%.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2% i.e., 10.g5y0.

22.

Page 20 of 35 l/' ffiHARERA #^ aJRUGRAI/ 24. complaint No.

361 of2023 The definition of term 'interest' as defined under section 2(zal ofthe Act provides that the rate of interest chargeable from the allottees by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottees, in case of default.

The relevant section is reproduced below: "(za) "interest" means the rates ofinterest payable by the promoter or the allottee, qs the case moy be.

Explctnotion. -For the purpose of this clause- (i) the rote of interest chqrgeable from the allottee by the promoter, in case of defqult, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of defqult; (i0 the interest payqble by the promoter to the otlottee shall be from the dote the promoter received the amount or qny part thereoftill the date the omount or part thereof and interest thereon ts refunded, and the interest poyoble by the allottee to the promoter sholl be from the dote the allottee defoults in poyment to the promoter till the dote it is poid;" Therefore, interest on the delay payments from the complainants shall be charged at the prescribed rate i.e., 10.850/o by the respondent/promoter which the same is as is being granted to the complainants in case ofdelayed possession charges.

G.

II Direct the respondent to pay assured return amount @136000/- per month till 36 months after the actual physical possession date. sion date.

The complainants are seeking payment of the balance assured return which have been paid upto November 2017 while as per MoU clause 2, the respondent is required to pay assured return upto the first 36 months after completion of the building or till the date of leasing out of the unit, whichever is earlier.

Since the unit is not yet put on lease and hence, the respondent is required to make the payment of assured return till date.

26.

Page2l of35 y' ffiHARERA S-eunuenRHl 1',1 28.

361 of 2023 However, the counsel for the respondent has submitted that the complainants have approached NCLT in 2017 for payment ofdues, but the matter was settled between the parties vide settlement deed dated 74.11.20L7, wherein the complainants withdrew their complaint on settlement of dues.

Although the OC of the unit has been obtained on 76.08.2077 and possession ofthe unit was offered on 27.03.2018.

As per clause 2 of MOU, the respondent was liable to pay investment return at the rate of Rs.68/- per s month i.e., Rs.1,36,000/- with effect from 06.1.0.2008, upto building or till the said office lessee, whichever is earlier.

Clause 2 of the memorandum of understanding stipulates that: - 2.

After receipt offull consideration of Rs.

66,00,000/- (Rupees Sixty Six Lac only) the Developer shallgive an investment reiurn @ 6g/- per sq. fi. per month i.e.

Rs.l,36,000/- (Rupees Sixty One Lac Thi;tu-Six Thousand only) with efJect from 6t, October: 200g, on or bllore 7th day of euery month lor which it is due upto the first 36 months dfter completion of the building or till tie date the said OIfice Space is put on lease, whichever is earlier.,, 29.

It is pleaded by the complainants that the respondent has not complied with the terms and conditions of the MOU/agreement.

Further, the settlement agreement dated 14.17.2017 was upto the point of pending assured return till November 201,7 and the settlement was without prejudice to the claims of the parties. e parties.

The respondent has submitted that the Authority has no iurisdiction to entertain the present complaint as the unit allotted to the complainants was under assured return scheme and therefore, the matter falls under the Banning of Unregulated Deposit Schemes Act,2019 (hereinafter referred to as the BUDS Act, 2019).

But that Act does not create a bar for payment of onths after completion ofthe d out by the developer to the PaEe 22 of35 HARERA GURUGRA[/ Complaint No.

361 of 2023 assured returns even after coming into operation and the payments made in this regard are protected as per section 2(4)[iii) ofthe above- mentioned Act.

Further, an MOU can be considered as an agreement for sale interpretating the definition of the agreement for "agreement for sale" under section 2[c] of the Act and broadly by taking into consideration the objects of the Act.

Therefore, the promoter and allottees would be bound by the obligations contained in the memorandum of understanding and the promoter shall be responsible for all obligations, responsibilities, and functions to the allottee as per the agreement for sale executed inter se them under section 11(4J(al of the Act.

An agreement defines the rights and liabilities of both the parties i.e., promoter and the allottees and marks the start of new contractual relationship between them.

This contractual relationship gives rise to future agreements and transactions between them.

Therefore, different kinds of payment plans were in vogue and legal within the meaning of the agreement for sale.

One of the integral parts of this agreement is the transaction of assured return inter-se parties.

The "agreement for sale" after coming into force of this Act (i.e., Act of 2016) shall be in the prescribed form as per rules but this Acr of 2016 does not rewrite the "agreement" entered between promoter and allottees prior to coming into force of the Act as held by the Hon'ble Bombay High Court in case Neelkamal Realtors Suburban Private Lim rivate Limited and Anr, v/s Union of India & Ors., (Writ Petition No .2737 of 2017) decided on 06.12.201,7.

Since the agreement defines the buyer- promoter relationship therefore, it can be said that the agreement for assured return between the promoter and allottees arises out of the same relationship.

Therefore, it can be said that this authority has Page 23 of35 /' ffiHARERA #-eunuennnr complaint No.

361 of2023 complete jurisdiction to deal with assured return cases as the contractual relationship arise out of agreement for sale only and between the same parties as per the provisions of section 11(a)(a) of the Act of 2016 which provides that the promoter would be responsible for all the obligations under the Act as per the agreement for sale till the execution of conveyance deed ofthe unit in favour of the allottees.

Now, three issues arise for consideration as to: i.

Whether authority is within the iurisdiction to vary its earlier stand regarding assured return due to changed facts and circu mstances. ii.

Whether the authority is competent to allow assured returns to the allottees in pre-RERA cases, after the Act of 2016 came into operation, iii.

Whether the Act of 2019 bars payment of assured returns to the allottees in pre-RERA cases 30.

While taking up the cases of Brhimjeet & Anr.

Vs.

M/s Landmark Apartments Pvt.

Ltd. (complaint no 147 of 2078), and Sh.

Bharam Singh & Anr, Vs.

Venetain LDF projects LIp,, (complaint no 175 of 2018) decided on 07.08.2018 and 27 1.12018 respectively, it was held by the authority that it has no jurisdiction to deal with cases of assured returns.

Though in those cases, the issue of assured returns was involved to be paid by the builder to an allottee but at that time, neither the full facts were brought before the authority nor it was argued on behalf of the allottee that on the basis of contractual obligations, the builder is obligated to pay that amount. at amount.

However, there is no bar to take a different view from the earlier one if new facts and law have been brought before an adjudicating authority or the court.

There is a Page 24 of 35 HARERA ffi.GURUGRAI/ doctrine of "prosp ective overruling" and which provides that the law declared by the court applies to the cases arising in future only and its applicability to the cases which have attained finality is saved because the repeal would otherwise work hardship to those who had trusted to its existence.

A reference in this regard can be made to the case of Sarwan Kumar & Anr Vs, Madan Lal Aggarwal Appeal (civilJ 105g of 2003 decided on 06.02.2003 and wherein the Hon,ble Apex Court observed as mentioned above.

So, now a plea raised with regard to maintainability of the complai#'#the face of earlier orders of the authority in not tenable.

The authority can take different view from the earlier one on the basis of new facts and law and the pronouncements made by the apex court of the land.

It is now well settled preposition of law that when payment of assured returns is part and parcel of builder buyer's agreement (maybe there is a clause in that document or by way of addendum , memorandum of understanding or terms and conditions of the allotment of a unit), then the builder is liable to pay that amount as agreed upon and can't take a plea that it is not liable to pay the amount of assured return.

Moreover, an agreement for sale defines the builder-buyer relationship.

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

Therefore, it can be said that the authority has complete jurisdiction with respect to assured return cases as the contractual relationship arise out of the agreement for sale only and between the same contracting parties to agreement for sale. for sale.

In the case in hand, the issue of assured returns is on the basis of contractual obligations arising between the parties.

Then in case of pioneer IJrban Land and ./ Complaint No.

361 of 2023 Page 25 of 35 HARERA GURUGRAM Complaint No.

361 of 2023 lnfrostructure Limited & Anr. v/s ltnion of India & Ors. (Writ petition (Civil) No.

43 ot 2079) decided on 09.09.2019, it was observed by the Hon'ble Apex Court of the land that ,,...allottees who had entered into "assured return/committed retarns' agreements with these developers, whereby, upon payment of d substantial portion of the total sale consideration upfront at the time of execution of agreement, the developer undertook to pqy d certdin dmount to allottees on a monthly basis from the dote ofexecution ofagreement till the date ofhanding over of possession to the qllottees".lt was further held that ,amounts raised by developers under assured return schemes had the ,,commercial effect of a borrowing' which became clear from the developer,s annual returns in which the amount raised was shown as ,,commitment charges" under the head "financial costs,,.

As a result, such allottees were held to be "financial creditors,, within the meaning of section 5 (7J of the Code" including its treatment in books of accounts of the promoter and for the purposes of income tax.

Then, in the latest pronouncement on this aspect in case Jaypee Kensington Boulevard Apartments Wevare Association and Ors. vs.

NBCC (lndia) Ltd. and Ors. (24.03.2021,-SCl: MANU/ SC/OZO6 /2027, the same view was followed as taken earlier in the case of pioneer Urban Land Infrastructure Ld &.4nr, with regard to the allottees ofassured returns to be financial creditors within the meaning ofsection 5(7) ofthe Code.

Then after coming into force the Act of 2016 w.e.F 01.05. e.F 01.05.2017, rhe builder is obligated to register the proiect with the authority being an ongoing project as per proviso to section 3(1J of the Act of 2 017 read with rule 2(11(oJ of the Rules, 2017.

The Act of 2016 has no provision for re-writing of contractual obligations between the parties as held by Pagez6of35 / ffiHARERA #- eunuerur,r the enforcement ofAct of 31.

It is pleaded on behalf of Unregulated Deposit Scheme Act of plea taken in this regard is devoid of merit.

Section Zl[4) of the above mentioned Act defines the word ' deposit' as an amount of money received by way of an advance or loan or in any other form, by any deposit taken with o promise to return whether after a speciJied period or otherwise, either in cash or in kind or in the form of a specified service, with or without any in any other form, but does i. an omount received in the course of, orfor the purpose of, business and bedring a genuine connection to such business including_ ii. advance received in connection with consideration of an immovable properq) under an agreement or orrangement subject to the condition that such advance is adjusteA against such immovable properly as specified in terms of the agreement or arrangement.

32.

A perusal of the above-mentioned definition ofthe term ,deposit, shows that it has been given the same meaning as assigned to it under the Companies Act, 2073 and the same provides under section 2(31) Complaint No.

361 of 2023 the Hon'ble Bombay High Court in c ase Neelkamal Realtors Suburhan Private Limited and Anr. v/s llnion oflndia & Ors., (supra) as quoted earlier.

So, the respondent/builder can,t take a plea that there was no contractual obligation to pay the amount of assured returns to the allottee after the Act of ZOL6 came into force or that a new agreement is being executed with regard to that fact. that fact.

When there is an obligation of the promoter against an allottees to pay the amount of assured returns, then he can't wriggle oulfrom that situation by taking a plea of Page 27 of35 4 ct, 2019 or any other law. dent/bullder that after the Banning of *HARERA ffi eunueirnl,r 33.

361 of 2023 includes any receipt by way ofdeposit or loan or in any other form by a company but does not include such categories of amount as may be prescribed in consultation with the Reserve Bank oflndia.

Similarly rule 2(cJ ofthe Companies (Acceptance ofDepositsl Rules, 2014 defines the meaning of deposit which includes any receipt of money by way of deposit or loan or in any other form by a company but does not include. i. as a advonce, accounted for in any manner whatsoever, received in connection with consideration for an immovoble properq) ii. os on advonce received and as allowed by any sectorai regulator or in accordance with directions of Centrdl or State Goveriment; So, keeping in view the above-mentioned provisions of the Act of 2019 and the Companies Act 2013, it is to be seen as to whether an allottee is entitled to assured returns in a case where he has deposited substantial amount of sale consideration against the allotment of a unit with the builder at the time ofbooking or immediately thereafter and as agreecl upon between them.

The Government of India enacted the Banning of Unregulated lleposit Schemes Act,2079 to provide for a comprehensive mechanism to ban the unregulated deposit schemes, other than deposits taken in the ordinary course of business and to protect the interest of depositors and for matters connected therewith or incidental thereto as defined in section 2 (41 ofrhe BUDS Act 2019 mentioned above.

It is evident from the perusal of section 2(4)[l](iiJ of the above- mentioned Act that the advances received in connection with consideration of an immovable property under an agreement or arrangement sub. ement sub.iect to the condition that such advances are adjusted against such immovable property as specified in terms ofthe agreement 34.

35.

Page 28 of 35 ffiHARERA ffiarnuennr'r Complaint No.

361 of 2023 or arrangement do not fall within the term of deposit, which have been banned by the Act of 2019.

36.

Moreover, the developer is also bound by promissory estoppel.

As per this doctrine, the view is that if any person has made a promise and the promisee has acted on such promise and altered his position, then the person/promisor is bound to comply with his or her promise.

When the builders failed to honour their commitments, a number of cases were filed by the creditors at diffi Urban Land and Infras government to enact the B such as Nikhil Mehta, Pioneer ultimately led the central gulated Deposit Scheme Act, 2019 on 31.07 .2019 in pursuant to the of Unregulated Deposit Scheme Ordinance, 2018.

However, the moot question to be decided is as to whether the schemes floated earlier by the builders and promising as assured returns on the basis of allotment ofunits are covered by the abovementioned Act or not.

A similar issue for consideration arose before Hon'ble RERA Panchkula in case Baldev Gautam VS Rise Projects Private Limited (RERA-PKL-2068-2019J where in it was held on 11.03.2020 that a builder is liable to pay monthly assured returns to the complainant till possession of 'e apartments stands handed over and there is no illegality in this regard.

37.

The definition of term 'deposit' as given in the BUDS Act 2019, has the same meaning as assigned to it under the Companies Act 2013, as per section 2(4)[iv)(iJ i.e., explanation to sub-clause (iv].

In pursuant to powers conferred by clause 31 ofsection 2, section 73 and 76 read with sub-section 1 and 2 ofsection 469 ofthe Companies Act 2013, the Rules with regard to acceptance ofdeposits by the companies were framed in the year 2074 and the same came into force on 0L.04.2014.

L.04.2014.

The Page 29 of 35 ,y ffiHARERA &eunuEnnrv definition of deposit has been given under section 2 (c) of the above_ mentioned Rules and as per clause xii (b), as advance, accounted for in any manner whatsoever received in connection with consideration for an immovable property under an agreement or arrangement, provided such advance is adjusted against such property in accordance with the terms ofagreement or arrangement shall not be a deposit.

Though there is proviso to this provision as well as to the amounts received under heading'a' and 'd' and the amount becoming refundable with or without interest due to the reasons that the company accepting the money does not have necessary permission or approval whenever required to deal in the goods or properties or services for which the money is taken, then the amount received shall be deemed to be a deposit under these rules however, the same are not applicable in the case in hand.

Though it is contended that there is no necessary permission or approval to take the sale consideration as advance and would be considered as deposit as per sub-clause 2(xv)(bJ but the plea advanced in this regard is devoid of merit.

First ofall, there is exclusion clause to section 2 (xiv)(b) which provides that udess xcluded under this clause.

Earlier, the deposits received by the companies or the builders as advance were considered as deposits but w.e.f.

29.06.2016, it was provided that the money received as such would not be deposit unless specifically excluded under this clause.

A reference in this regard may be given to clause 2 of the First schedule of Regulated Deposit Schemes framed under section 2 (xv) ofthe Act of2019 which provides as under:_ (2) _The following shall olso be treated as Regulated Deposit Schemes under this Act namely:- Complaint No. plaint No.

361 of 2023 Page 3O of 35 HARERA ffiGURUGRAM (a) deposits accepted under any scheme, or an arrangement registered with any regulatory body in India constituted or established under a statute; and (b) any other scheme as may be notified by the Central Government under this AcL The money was taken by the builder as deposit in advance against allotment of immovable property and its possession was to be offered within a certain period.

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

So, on his failure to fulfil that commitment, the allottee has a right to approach the authority for redressal of his grievances by way of filing a complaint.

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

Moreover, an agreement defines the builder/buyer relationship.

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

40.

The authority under this Act has been regulating the advances received under the project and its various other aspects.

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

If the project in which the advance has been received by the developer from an allottee is an ongoing project as per section 3(1] of the Act of 2016 then, the same would fall within the .iurisdiction of the authority for giving the desired relief to the complainant besides initiating penal proceedings.

4 Page 31 of 35 Complaint No.

361 of2023 38.

39. ffiHARERA #- eunuennM 41. nuennM 41.

The authority further observes that now, the proposition before the Authority whether an allottee who is getting/entitled for assured return even after expiry of due date of possession, is entitled to both the assured return as well as delayed possession charges?

To answer the above proposition, it is worthwhile to consider that the assured return is payable to the allottee on account of a provision in the BBA or in a MoU having reference of the BBA or an addendum to the BBA/Mou or allotment letter.

The rate at which assured return has been committed by the promoter is Rs.1,30,000/_ per month.

If we compare this assured return with delayed possession charges payable under proviso to section 1g (1) of the Real Estate (Regulation and Development] Act, Z}1,6,the assured return is much better.

By way of assured return, the promoter has assured the allottees that they will be enutled for this specific amount from 06.10.2008 upto the first 36 months after completion of the building or till the date the said office space is put on Iease, whichever is earlier.

Accordingly, the interest ofthe allotteeis protected even after the due date of possession is over.

The purpose of delayed possession charges after due date of possession is served on payment of assured return after due date ofpossession as the same is to safeguard the interest of the allottees as their money is continued to be used by the promoter even after the promised due date and in return, they are to be paid either the assured return or delayed possession charges whichever is higher.

42.

Accordingly, the authority decides that in cases where assured return is reasonable and comparable with the delayed possession charges under section 18 and assured return is payable even after due date of .y Page 32 of35 Complaint No.

361 of2023 ffiHARERA # eunuennr,r Complaint No. plaint No.

361 of2023 possession, the allottee shall be entitled to assured return or delayed possession charges, whichever is higher without preiudice to any other remedy including compensation.

43.

In the present complaint, as per clause Z of the MoU dated 26.09.200g, the amount on account ofassured return was payable from 06.10.200g upto the first 36 months after completion ofthe building or till the said office space is leased out by the developer to the lessee, whichever is earlier.

However, the date by either of the parties. of the building is not provided e date of grant of occupation certificate i.e., 16.08.2017 ought to be taken as the date of completion of the building.

Therefore, considering the facts of the present case, the respondent is directed to pay the balance amount of assured return at the agreed rate i.e., Rs.1,30,000/- per month from December 2017 upto 16.08.2020 i.e., 36 months from the date of completion of the building (date of grant of 0C) being earlier as the unit/space has not yet been leased out by the respondent 44.

The respondent is directed to pay the outstanding accrued assured return amount till date at the agreed rate within 90 days from the date of this order after adjustment of oL dues, if any, from the complainants and failing which that amount would be payable with interest @ 8.850/o p.a. till the date of actual realization.

G.III Direct the respondent to quash the utility charge, one time electricity connection charge, IFMS charge, VlTlharges anO increase in super area, 45.

Electricity connection charge: The promoter is entitled to charge the actual charges paid to the concerned departments from the complainant/allottee on pro_rata basis on account of electricity connection depending upon the area of the space/unit allotted to the Page 33 of 35 HARERA GURUGRAI/ complainants viz-i-viz the area ofthe pro]ect, subject to the respondent furnishing proof of having paid the same to the competent authorify.

46. orify.

46.

Increase in super area: The complainant is seeking quashing of demand on account of increase in super area of the unit allotted to the complainants.

However, as per record, the super area of the unit/space allotted to the complainants has not been revised.

Therefore. no direction to the same.

47.

The complainants have submitted that the respondent is illegally demanding amount on account of utility charge, IFMS charge, VAT charges. whereas the respondent has stated that these issues have arready been dealt by the Authority vide order dated 18.01.2023 in case bearing no.

1297 of 2019 titled as ,,RajBala and Ors.

Vs. hrris Infrastructure pvt.

Ltd. and 0rs.,'.

Ordered accordingly.

H.

Directions ofthe authority 48 Hence, the authority hereby passes this order and issues the fbllowing directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority under section 34(0: i, The respondent/builder is directed to pay the balance amount of assured return at the agreed rate i.e., Rs.1,30,000/_ per month from December z0L7 upto 1,6.08.2020 i.e.,36 months from the date of completion ofthe building (date ofgrant ofOC) being earlier. ii.

The respondent is directed to pay the outstanding accrued assured return amount till date at the agreed rate within 90 days from the date of this order after adiustment of outstanding dues, if any, failing which that amount would be payable with interest @8.85% p.a. till the date of actual realization.

Page 34 of35 Complaint No.

361 of2023 *HARERA #[ GURuGnAM 49.

Complaint stands disposed of.

50.

File be consigned to registry.

Haryana Real Estate Dated: 27 .03 .ZOZ4 Complaint No.

361 of2023 iii.

The respondent is directed to handover possession of the unit/space in question to the complainants in terms of the space buyer agreement dated 15.04.2009. iv. .2009. iv.

The respondent shall not charge anything from the complainants which is not part ofthe space buyer agreement. ffi 6r w HARERA GURUGRAM Page 35 of35