PARVEEN KHARB vs VATIKA LIMITED

#HARERA & ounuonntr,r Shri Sanjeev Kumar Aro APPEARANCE: Shri Iainder Kharb [Advocate] Complaint No.

1873 of 2022 Member Complainant Respondent BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM ComDlaint no. lA73 of 2022 Date offilinsl 04.o5.2022 Date ofdecision: 29.03.2024 Parveen Kharb R/o # D4-502, Uniworld Gardens 2 Gurugram Complainant M/s Vatika Ltd.

Office address: Unit- Floor, Block A, Sector Haryana-122012 COMM: Respondent Ms.

Ankur Berry (Advocate) under section 31 of the Real Estate (Regulation and Development) Act, 2016 [in short, the Act) read with rule 28 of the Haryana Real Estate (Regulation and DevelopmentJ Rules, 2077 (in short, the Rules) for violation of section 11(4J [aJ ofthe Act wherein it is inter alio prescribed that the promoter shall be responsible for all obligations, responsibilities and functions as provided underthe provision ofthe Act PaEe I of 27 ffiHARERA # aJRuGRAN/ Complaint No.

1873 of 2022 or the Rules and regulations made there under or to the allottees as per the agreement for sale executed inter se.

A.

Proiect and unit related details 2.

The particulars of the proiect, the amount of 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: S.no.

Particulars lDetails 1.

Name orrhe projc* ] I [,nxt City Center at Sector 83, irryteryana 2.

Nature ofthe 3.

Project area 6rr{Fs., I q \t Il k t( 4.

DTCP license noK B 07 dated 19.11.2007 license from commercial in I zone to commercial plotted Le order dated 13.10.2022.

Qti 5.

Name of licensee M/s Shivam Infratech Pvt.

Ltd.

6.

RERA Registered/ not registered Not Registered 7.

Date of builder buyer agreement 19.07.2072 lpg.

23 ofcomplaintl B.

Unit no.

2064 2d floor, measuring 500 sq. ft. [pg.

21 of complaint] 9.

Allocation ofunit 29.02.2012 [pg.

21 of complaint] Page 2 of 27 ffiHARERA ffi eunuenRll Complaint No.

1873 of 2022 B.

3.

2022 B.

The complainant has made the following submissions in the complaint: a.

That, the complainant, Smt.

Parveen Kharb W/ Shri.

Sunil Kharb R/o D4-502, Uniworld gardens 2, Sector 47, Gurugram-122018, Haryan4 India is a law abiding citizen, taxpayer to the public exchequer and entitled to the constitutional right to property as envisaged in the constitution of India. b.

That, the respondent i.e.

Vatika Limited is a company incorporated under the provisions of Companies Act, 1956 vide CIN Paee 3 of 27 72 (D Rs.

65/- per sq. ft. per month of the super area, 3 years from the date of completion of construction ofthe building or till the said commercial unit is put on lease, whichever is earlier. [Page 15 of the complaint] Assured return clause No possession clause in the BBA slnce is leasing arrangement between the d assured return clause is there Due date ofpossession plaintl Total sale consideration by the compl 0ffer ofp Assured return paid 07.09.2078 Facts ofthe 10.

11.

13. < 39 ,20 ,476.5 / - [pg.

1B oF complainr] 14.

I Not offered 15.

0ccupation certificate Not obtained 76. )i zs.68.620/- [pg.

35 ol reply] MHARERA *s* eunueRRu circulated bv them project with im correct and in the proiect address & Centre respondent tha would be compl d.

That, relying upon Complaint No.

1873 of 2022 U74899HR1998P1C054821 and having its registered office at Unit No.

A- 002, INXT City Centre, Ground Floor, Block A, Sector 83, Vatika India Next, Gurugram- 122072 and is inter alia engaged in the business activities relating to construction, development, marketing and sales ofvarious types ofresidential and commercial properties to its various customers/clients and works for gain.

That, in pursuant to the elaborate advertisements, assurances, representations and pro respondent in the brochure completion of a premium i9 ely believing the same to be t measuring 500 sq. ft.

00 sq. ft. r, Tower A (Now, unit of Vatika INXT Citv d assured by the of the complainants representations and being assured that the comp INxrcitycen@ RUGRAM Thatthe booking ofthe said unit i.e., 108, Tower D1 (Change ofUnit Tower and address from the initially assigned) in the "Vatika INXT City Centre Gurugram" project was confirmed to the complainant vide assignment letter dated January 11, 2012 wherein the respondent explicitly assigned all the rights and benefits under the builder buyer agreement dated January 19, 2Ol2 to the e by their commitments, L unit in the project Vatika Page 4 of 27 ffiHARERA ffi aiRuGRAN/ Complaint No.

1873 of 2022 complainant.

Pursuant to the execution builder buyer agreement, a letter of allotment dated February 29, 2072 in the name of complainant was issued to the complainant wherein the respondent further assured that the project would be completed by September 30,2014, in the point (iv) ofthis allotment letter.

That a builder buyer agreement dated fanuary L9,20L2 was executed betlveen the parties which included all the details of the project such as ameniti date of completion, etc. ed, site plan, payment schedule, said builder buyer agreement, the respondent pro sented and committed to the complainant would be completed d of 2014.

Further, to pay Rs.

65l- per sq. ft. of mplainant by way assured return ction ofthe project.

That, it is was getting paid the promised monthly ren , 2018. monthly rentals to signing any reasons h.

Thereafter, several efforts from the complainant were made to seek updates about the status of the construction work at the site, but due to the negligence of the respondent, there was no satisfactory response from their end.

The agreement entered between the respondent and complainant provided for the full payment, the and will be h under clause the co Ithat Page S of 27 ffiHARERA #-GtiRticRAr'/ Complaint No. plaint No.

1873 of 2022 complainant had assumed the money collected by the respondent from the complainant would be utilised for construction purposes.

Unfortunately, the respondent did not properly utilise the complainant's hard earned money and even after the lapse of 10 years ofthe date ofbooking, the project is yet to be completed.

After getting zero response from the respondents, the complainant visited the construction site, but were shocked and appalled to see that the construction completed.

Despite the respondent promising th t to provide him with a world class project with im e complainant is shocked to see the con of the complainant to book the unit i That the res ated the terms and by not paying the conditions of promised m at initially promised rates.

Not t possession of the above said allotted un ng the sale deed ofthe above , i1'".-*111. ", *t*RHf,ldh", comp,aint berore this Hon'bre r@{*ffi fulffiflfuluthorty, Gurugram, the respondent has notgot the proiect registered with the authority and for the same reason, the respondenthas violated the provisions of Section 3 and Section 4 of the Real Estate Regulation and Development Act,2016 and therefore liable to be punished under Section 59 and Section 60 ofthe above said Act. l. ).

Page 6 of 27 k. ffiIABEBA #* ouRuonRu That, at the time of execution of the builder buyer agreement, the respondent had represented to the complainant that they are in possession of the necessary approvals from the DTCP, Haryana to commence with the construction work of the commercial project.

However, till date construction is incomplete at the site.

That, it is abundantly clear that the respondent has no intentions of completing the above said project and have not abided by the terms and conditions mentio agreement. uses of the builder buyer o. r buyer o.

That, it is unambigu rce majeure was involved, and the project ral years, precisely the present date, was halted du at the construction submitted that the reassigned co e full payment to the respondent towa booked by them.

That, despite paying such a the commercial unit, the Complaint No.

1873 of 2022 nt. in the end of therefore the respondent has failed to stand by the ter builder buyer agreement and the representations, etc., which the respondent made to the complainant at the time ofbooking the above said unit. p.

That, the respondent is not only guilty ofdeficiency ofservices and for unfair trade policy along with the breach of contractual obligations, mental torture, harassment of the complainant by misguiding them, keeping them in dark and putting their future at risk by rendering them income less. promises, assurances, Page 7 of 27 HARERA Complaint No. fB73 of 2022 SP_ GURUGRAM q.

That, the complainant herein is constrained and left with no option but to file this present complaint seeking the payment of assured rental @65.00 per sq. ft. per month until possession/leasing of the unit and registration of the sale deed of the allotted unit at Vatika INXT City Centre.

Further, the complainant herein reserve their rights) to change any submissions made herein in the complainant and further, reserve the right to produce additional documents or submissiohs, as and w Tribunal. or directed bv this Hon'ble r, That, the compl that the after regarding which this com t pending before any court of law or tribunal.

C.

4.

Relief sought by The complainant a.

Direct the f165/- per sq. ft. per month until po b.

Direct the responden actual, physical, vacant possession of e above said project.

Direct the possession penalty d.

Direct the respondent to execute the sale deed of the above said unit in favour ofthe complainant. e. ainant. e.

Direct the respondent to pay the amount ofassured monthly return as agreed upon the complainant from October, 2018 with interest as per RERA Act to the complainant.

Page I of 27 ffiHARERA #-cuRuGRA[/ Complaint No.

1873 of 2022 5.

0n the date of hearing the authority explained to the respondent/ promoters about the contraventions as alleged to have been committed in relation to section 11[4J (aJ ofthe Act to plead guilty or not to plead guilty.

D.

Reply by the respondent.

The respondent by way of written reply made the following submissions: a.

That the complainant h standi or cause of action to file the present complaint.

Th mplaint is based on an erroneous interpretation of th Act as well as an incorrect understanding of the builder buyers t from the submissions agreement made in the f b.

That at the maintainable misdirected hims Ld.

Authority as the v. resent complaint is not .

The complainant has oned complaint before this ed by the complainant cannot be f this Ld.

Authority. lt is t of the Banning of said to fall *i{qh humbly subrnlttet ' Unregulated Deposit Schemes Act, 2019, (hereinafter referred as BU DS ActJ the 'assured return' and/ or any "committed returns" on the deposit schemes have been banned.

The respondent company having not taken registration from SEBI Board cannot run, operate, and continue an assured return scheme.

The implications of enactment of BUDS Act read with the Companies Act, 2013 and Companies [Acceptance of DepositsJRules, 2014, resulted in making the assured Page 9 of 27 ffi HARERA #- aiRirGRAr'/ d. e.

That the complainant this Hon'ble Authority with un- clean hands. the complainant just to harass the nrichment.

The actual reason for fil ent complaint stems from the changed financial valuation of the real estate sector, in the past few years and the allottee malicious intention to earn some easy buck. easy buck.

The Covid pandemic has given people to think beyond the basic legal way and to attempt to gain financially at the cost of others.

The complainant has instituted the present false and vexatious complaint against the respondent company who has already fulfilled its obligation as defined g tne sald comm return/committed return and similar schemes as unregulated schemes as being within the definition of "Deposit". c.

Thus the Assured Return Scheme proposed and floated by the respondents has become infructuous due to operation of law, thus the relief prayed for in the present complaint cannot survive due to operation of law As a matter of fact, the respondent duly paid 125,68,620.69 /- till September, 2018.

The complainant has not come with clean hands befo these material facts. e Authority and has suppressed Complaint No.

1873 of 2022 at the commercial unit of the ession as the said unit is ce for earning rental said commercial space mplainant.

Hence, the is not meant for physical That it is also complainant is onlv meant fo income.

Furth shall be deem commercial possession- Page lO of 27 ffiHARERA ffiGuRLrcRAM Complaint No.

1873 of 2022 under the BBA dated 03.05.2010.

It is pertinent to mention here that for the fair adiudication of grievance as alleged by the complainant, detailed deliberation by leading the evidence and cross-examination is required, thus only the Civil Court has jurisdiction to deal with the cases requiring detailed evidence for proper and fair adjudication.

It is submitted that the complainant entered into an agreement i.e., builder buyers agreement dated 19.01.2012 with respondent company owing to the name, reputation of the respondent that the respondent duly paid company.

That it is a ma the assured return ll September, 2018.

That due to external circu control of the respondent, construction e respondents suffered from setback rs, yet the respondents managed to The present co been filed on the basis of incorrect und reasons of enactme of enactment of the RERA,Act,2016. its great wisdom, understanding ::::ffi'Jm;:::]ff:":l: /'\ ! - -.r / absence of {. gfulfd{,btg,(/o1O*ip. professionatism and standardization to the said sector and to address all the concerns of both buyers and promoters in the real estate sector, drafted and notified the RERA Act,2016 aiming to gain a healthy and orderly growth of the industry.

The Act has been enacted to balance the interests of consumer and promoter by imposing certain responsibilities on both.

Thus, while Section 11 to Section 1g of the Page ll of 27 ffi HARERA H arnuennlr present com Respondent complaint fil healy costs.

Complaint No.

1A73 of 2022 RERA Act, 2015 describes and prescribes the function and duties of the promoter/developer, Section 19 provides the rights and duties of Allottees.

Hence, the RERA Act, 2016 was never intended to be biased legislation preferring the allottees, rather the intent was to ensure that both the allottee and the developer be kept at par and either of the party should not be made to suffer due to act and/or omission of part ofthe other. h.

That the Complainant ng to seek an advantage of the slowdown in the real it is apparent from the facts of the present case of the present complaint is to harass the ting frivolous issues with ulterior moti nt Company.

Thus, the no cause of action has arisen till nt and against the Respondent an to be dismissed.

That, it is evident omplainant' is nothing but a web of lies and the us allegations made against the t, hence the present to be dismissed with j.

That the various contentions raised by the Complainant are fictitious, baseless, vague, wron& and created to misrepresent and mislead this Hon'ble Authority, for the reasons stated above.

That it is further submitted that none of the relief as prayed for by the Complainant are sustainable, in the eyes of law. es of law.

Hence, the complaint is liable to be dismissed with imposition of exemplary Page 12 of 27 ffi HARERA ffi aTRUGRAN/ Complaint No, fB73 of 2022 cost for wasting the precious time and efforts of this Hon'ble Authority.

That the present complaint is an utter abuse of the process of law, And hence deserves to be dismissed.

7.

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

Their authenticity is not in dispute.

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

8.

Written arguments on b lainant has been filed on 21.03.2024 and respondent fi ary documents to be taken on record on 20.f7.2023, th cognizance of the same.

E, 9. furisdiction ofthe a The authority ob jurisdiction to adj below.

E.

I Territorial i 10.

As per notification no.

Town and Country Pl RegulatoryAutho purpose with offi I as subject matter r the reasons given 4.12.2017 issued bv the e iurisdiction of Real Estate District for all present case, the proiect in question is situated within the planning area of Gurugram District.

Therefore, this authority has completed territorial iurisdiction to deal with the present complaint.

II Subiect matter iurisdiction 11.

Section 11[4)(aJ of the Act,2016 provides that ttle promoter shall be responsible to the allottee as per agreement for sale.

Section 11(4)(a) is reproduced as hereunder: Section 77(4)(a) Page 13 of 27 it has territori the present comp HARERA ffiGURUGRAM Complaint No.

1873 of2022 Be responsible for oil obligations, responsibilities ond functions under the provisions of this Act or the rules and regulations made thereunder or to the qllottees os per the agreement for sole, or to the association of ollottees, os the case may be, till the conveyance of all the opartmentsl plots or buildings, as the case may be, to the allottees, or the common oreos to the qssociation of allottees or the competent authority, os the case moy be; Section 34-Functions of the Authority! ,O hority! ,OA "f ,0" Act provides re compliqnce of the obligotions cast upon real estate qgents u the ollottees ond the ond the rules ond r eg ulations m ade the reu 12.

So, in view ofthe provisions ofthe act quoted above, the authority has i ^, i....:. complete iurisdiction. to decide the complaint regarding non- compliance of obligations by the promoter leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainant at a la F.

Findings on the t.

F.l.

Direct the I, physical, vacant possession of the unit'hd,,:! ".,xJ:,:n:fi&t& ofthe above said proiect. orporates any possession both the parties as perclause 12 ofthe agreement dated 19.01.2012, therefore, no direction w.r.t. the physical possitssion can be deliberated by the authority.

F.lI.

Direct the respondent to execute the sale deed ofthe above said unit in favour ofthe complainant.

14.

As per Section 17 (1J ofAct ofZ016, the respondent is under obligation to get the conveyance deed executed.

In the present case the possession of the allotted unit has yet not taken by the complainant/allottee.

Therefore, the respondent is directed to complete the construction of Page 14 of 27 HARERA Complaint No.

1873 of 2022 ffiGURUGRAM the subject unit complete in all aspects and thereafter, execute a conveyance deed in favor of complainant within a period of three months from the date ofobtaining OC from the competent authority.

F,III.

Direct the respondent to pay delay possession charges on paid amount till date ofhanding over ofpossession.

15.

The complainant is not entitled for any delay possession charges under Section 18 since the buyer's agreement executed between the parties do not incorporated any clause with rqspect to handing over of possession rather it was a leasing arrangemdrit'r. ed return of { 65/- per sq. ft. per t ofassured monthly return as agreed upon the complainant fiom October, 2018 with interest as per RERA Af*&16e coniplainant \-, . ' 16. -, . ' 16. rhe complainant lfSsfuchPff\falFT* lyl-*ly basis as per clause 12 of buyer'[€tfd,, Ff t[.oll.Q[&'ltre complainant paid the tull considerau"$g\flt of t_dp,z.|i,oqi/af,the time of agreement only with a promi.",o\$lfuiiihffifr#{55 per sq. ft. from the date of agreement titt com)*f,p-[Eliffction of the said building. tt was turther agree.Frfe/lu*Ft* a;ft:ement that the said returns shall b" pdldt#h+fyb#*"t"\C iate of completion oi r\ I t;-\ L,,',-\ ---\ /, construction or till\@ftf lcr{td{gal{/t\lRrrt on lease, whichever is earlier.

The respondent has not complied with the terms and conditions of the agreement dated 19.01.2012 and paid the assured return ofan amount of {25,68,620l-nl September, 2018 but later on, the respondent refused to pay the same by taking a plea ofthe Banning ofUnregulated Deposit Schemes Act, 2019.

But that Act does not create a bar for payment of assured returns even after coming into operation Page 15 of 27 HARERA Complaint No.

1873 of 2022 MGURUGRAM and the payments made in this regard are protected as per section 2(4)[iii) of the above-mentioned Act.

However, the plea of respondent is otherwise and who took a stand that though it paid the amount of assured return upto the November 2019 but did not pay assured return amount after coming into force of the Act of 2019 as the same was declared illegal.

17.

The promoter and allottee would be bound by the obligations contained in the buyer's agreement an shall be responsible for all obligations, responsibilities, ns to the allottee as per the agreement for sale der section 11(41[aJ of the Act.

An agreement d es of both the parties i.e., promoter and of new contractual onship gives rise to Therefore, different thin the meaning of relationship b future agreements kinds of payment p the agreement for sale. ofthis agreement is the transaction of assured retu es.

The "agreement for sale" after coming into prescribed form a of 201. a of 201.6) shall be in the 16 does not rewrite the "agreement" entered between promoter and allottee prior to coming into force of the Act as held by the Hon'ble Bombay High Court in case Neelkamal Realtors Suburban Private Limited and Anr, v/s Union of lndia & Ors., [Writ Petition No.2737 of 2017) decided on O6.tZ.ZOt7.

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

Therefore, it Page 16 of 27 ffiHARERA ffi arnLrennr,r Complaint No.

1873 of 2022 can be said that the real estate regulatory authority has 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(4) [a) ofthe 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 of the unit in favour of the allottees.

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

Whether authority is wi iction to vary its earlier stand regarding assured facts and circumstances.

Il.

Whether the au assured returns to the allottees in p of 2016 came into III. operation, Whether the allottees in p ( While taking up Apartments PvL Singh & Anr.

Vs.

2018J decided on '.

M/s Landmork of 2018), and Sh.

Bharam mplaint no 175 of vely, 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 red returns to the 18. the Page 17 of 27 ffiHARERA #-eunuennll Complaint No.

1873 of2022 brought before an adjudicating authority or the court.

There is a 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 Satwan Kumar & Anr Vs.

Madan LaI Aggatwal Appeal (civill 10S8 of 2003 decided on 06.02.20 n the hon'ble apex court observed as mentioned abo a plea raised with regard to maintainability of the of earlier orders of the authority in not tena brent view from the earlier one on the made by the apex led preposition of law that when pa nd parcel of builder buyer's agreement document or by way ofaddendum, memor r terms and conditions of the allotment ofa unit], is liable to pay that amount as agreed upon and le to pay the amount defines the builder- of assured return.

L 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.

In the case in hand, the issue of assured returns is e pronouncements Page 18 of 27 HARERA ffi GURUGRAI/ on the basis of contractual obligations arising betlveen the parties. ln cases of Anil Mahindroo & Anr, v/s Earth lconic Infrastructure Pvt. itd. (Company Appeal (AT) (lnsolvenry) No.

74 of 2017) and Nikhil Mehta and Sons (HUF) and Ors. vs.

ANIR Infrastructure Ltd. (CA NO. d. (CA NO.

811 (PB)/2018 in (lB)-02(PB)/z017) decided on 02.08.2017 and 29.09.2018 respectively, it was held that the allottees are investors and have chosen committed return plans.

The builder in turn agreed to pay monthly committed return todffi-{s.

Thus, the amount due to the allottee comes within the meaWbt' defined in Section 3(11) of the I&B Code.

The " i", tsrEfrpffihtpaqtand ana Infrastntcture Limited &Anr.v/suUddEffr h&Netition (civil) No.43 of 201e) decided "" @foreffi/#[u."\$ 1, the Hon'ble Apex court of trre ran{${ "...glgqq's1pho h{rAterea in,:., "assured return/ committed Wpt',obr&^Hr4*Xni qi? i*etopers, whereby, upon payment,r,Vtiful#r,lip!,4 qfi$rrrt sote consideration upfront at the time o/)frffi$ali ffiffi a*"toper undertook to poy o certoin amouft b>li*f,4ffiY*idtty basis from the date of ;#:;Jrff"#rffi ffi ffi#mffi ;ir"'ff :I::::: /\'''- assured return *l\9et_!4qq,-9 {:gpir{eic&l'gft€ct 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 resulg such allottees were held to be "financial creditors" within the meaning of section 5(7) of the Code" including its treatment in books ofaccounts ofthe promoter and for the purposes of income tax.

Then, in the latest pronouncement on this aspect in case Complaint No.

1873 of 2022 Page 19 of 27 ffiHARERA H aJRucRA[/ Iaypee Kensington Boulevard Apartments Wewre Association and Ors. vs.

NBCC (lndia) Ltd. and Ors. (24.03.202f-SC): MANU/ SC/0206 /2021, 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 of section 5 (7) of the Code.

Then after coming into force the Act of 2 016 w.e.f 01.05. e.f 01.05.2017, the builder is obligated to register the proiect with the authority being an ongoing proiect as per proviso to section 3 (1) of the Act of 2Ol7 read with rule Z(o)'ofthe Rules, 2017.

The Ad of 2016 has no provision for re-writing of cdnlractual obligations between the parties as held by the tiori'bleBombay High Court in case Neelkamal Realtors Suburban Private Limited and Anr. v/s Union of lndid & 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 2016 came into force or that a new agreement is being executed with regard to that fact.

When there is an obligation of the promoter against an allottee to pay the amount of assured returns, then he can't wriggle out from that situation by taking a plea of the enforcement of Act of 20L6, BUDS Act 2019 or any other law.

19.

It is pleaded on behalf of respondent/builder that after the Banning of Unregulated Deposit Schemes Act of 2079 came into force, there is bar for payment of assured returns to an allottee.

But again, the plea taken in this regard is devoid of merit.

Section 2[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 taker with a Complaint No.

1873 of 2022 PaEe 20 of 27 HARERA GURUGRAM Complaint No.

1873 of 2022 promise to retum whether after a specified period or otherwise, either in cash or in kind or in the form of a specified service, with or without any benefit in the form of interest, bonus, profit or in any other form, but does not include i. an amount received in the course oJ or for the purpose of, bustness and bearing o genuine connection to such business including- ii. uding- ii. advance received in connection with consideration of an immovable properly under an ag arrangement subject to the condition that such adva usted against such immovable proper\t as sqecifred ent or drrangemenL 20.

A perusal ofthe ab e term 'deposit' shows that it has been ed to it under the der section 2(31J Companies Act, 2 includes any recei any other form by a company but does f amount as may be prescribed in consulta of lndia.

Similarly rule 2[c) of the Companies ( ts) Rules, 2014 defines the connection with consideration for an immovable properU. ii. as an advance received and as allowed by any sectoral regulator or in accordance with directions of Central or Stdte GovernmenL 21.

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 Page 2l of 27 HARERA Complaint No.

1873 of2022 ffi.GURUGRAI\II amount of sale consideration against the allotment of a unit with the builder at the time of booking or immediately thereafter and as agreed upon between them.

22.

The Government of India enacted the Banning of Unregulated Deposit Schemes Act, 2079 to provide for a comprehensive mechanism to ban the unregulated deposit schemes, other than deposits taken in the for matters connected th dental thereto as defined in section 2 (4) of the BUDS Act oned above.

23.

It is evident from the 2t4)(D(iil of the above- mentioned Act tha in connection with consideration of arrangement subj an agreement or vances are adiusted against such imm ofthe agreement or arrangement do it, which have been banned by the Act of 24.

Moreover, the developer ii promissory estoppel.

As per builders failed to honour their commitments, a number of cases were filed by the creditors at different forums such as iVikft il Mehta, pioneer Urban Land and Infrastructure which ultimately led the central government to enact the Banning of Unreg g of Unregulated Deposit Scheme Act, 20L9 on37.07.2019 in pursuant to the Banning of Unregulated Deposit Scheme Ordinance,2018.

However, the moot question to be decided is !)|*5) Page 22 of 27 and HARERA ffiGURUGRAM as to whether the schemes floated earlier by the builders and promising as assured returns on the basis of allotment of units 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 (REM-?KL-2065-2019) where in it was held on 11.03.2020 that a builder is liable to pay monthly assured returns to the complainant till possession ofrespective apartments stands handed over and there is no illegality i 25.

The definition of term 'deposi in the BUDS Act 2019, has the same meaning as assi mpanies Act 2013, as per section 2(4J[iv)(iJ i. e (iv).

In pursuant to powers conferred sub-section l and 73 and76 read with Act 2013, the Rules with regard to mp es were framed in the year 201,4 an on 0L.04.2014.

The definition of deposit on 2 (c) of the above- mentioned Rules and as pe , as advance, accounted for in any manner whats th consideration for an immovable pro ment, provided 'in accordance with the terms ofagreement or arrangement shall not be a deposit.

Though there is proyiso 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 Complaint No.

1873 of 2022 Page 23 of 27 MHARERA ffi eunueRRH,l Complaint No.

1873 of 2022 the amount received shall be deemed to be a deposit under these rules however, the same are not applicable in the case in hand. e 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[wJ[b) but the plea advanced in this regard is devoid of merit.

First of all, there is exclusion clause to section 2 (xiv)(b) which provides that unless specifically excluded under this clause.

Earlier, the deposits received by the co e builders as advance were 016, it was provided that rhe money received as su sit unless specifically excluded under this gard may be given to clause 2 of the Fi sit Schemes framed under section 2 ( es as under: - (2) The Schemes u (a) orrangement registered established constituted or (b) any other by the Centrol way ofadvance, the builder promised certain amount by way ofassured 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 offiling a complaint.

27.

It is not disputed that the respondent is a real estate developer, and it had obtained registration under the Act of 201.6 for the project in 26.

Page 24 of 27 ffiHARERA H aJRuGRATu Complaint No.

1873 of 2022 question.

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 later 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 jurisdiction ofthe iving the desired reliefto the complainant besides initiating edings.

28.

The builder is liable to pa ed upon and can't take a plea that it is not liab return.

Moreover, an agreement defi that the agreeme allottee arises out agreement for sale.

29. sale.

29.

The authority further Authority whether an all even after expiry assured return as the proposition before the entitled for assured return entitled to borh the ip.

So, it can be said the promoter and ? :d is marked by the original 30.

To answer the above proposition, it is worthwhile to consider that the assured return is payable to the allottee on account ofa provision in the BBA.

The assured return in this case is payable from the date of agreement i.e., 19.01.2012 up till three years from the date of completion of construction or till said unit is put on lease whichever is earlier.

In the present complaint since the OC has not been obtalned from the competent authority accordingly, the construction of the said PaEe 25 of 27 HARERA OURUGRAM Complaint No.

1873 of 2022 G.

31. building is not yet completed therefore the respondent-promoter is entitled to pay monthly assured return as promised in BBA dated 19.01.2072.

Accordingly, the authority directs the respondent/promoter to pay assured return of {55/- per sq. ft. up till three years from the date of completion of construction i.e., the date on which OC from the competent authority shall be received in respect of the buildingwhere the said unitis.situated orthe said unitis puton lease whichever is earlier.

Directions ofthe authority . ;.

Hence, the authority hereby p;;q;ild,'ir order and issues rhe following directions under secti.op''37..;6t the act to ensure compliance of : obligations cast upon tlii ilroni6ter as per the function enrrusted to the authority under section 34(f): a.

The respondent is directed to pay assured return of {65/- per sq. ft. up till three years from the date of completion of construction i.e., the date on which OC from the competent authority shall be received in respect ofthe building where the said unit is situated or the said unit is put on lease whichever is earlier. b. arlier. b.

The respondent is directed to pay the outstanding accrued assured return amount till date as agreed vide BBA dated 19.01.2012 within 90 days from the date ofthis order failing which that amount would be payable with interest @ 10.850/o p.a. till the date of actual realization c.

The respondent is directed to execute a conveyance deed in favor of complainant within a period of three months from the date of obtaining OC from the competent authority.

Page 26 of 27 ffiHARERA #-eunuennr'r 33.

Haryana Real Date,:29,03.20?,4 Complaint No.

1873 of 2022 The complaint stands sed of.

File be consigned to Regulatory RERA RUGRAM Page 27 of 27 m