UPINDER SINGH AHLAWAT vs SANA REALTORS PRIVATE LIMITED

ffiHARERA #eunuennHl Upinder Singh Ahlawat R/o H. no.

145/22, Lakshmi Nagar, Rohtak-124001, Haryana Versus , M/s Sana Reltors Pvt.

Ltd.

Office address: H-69, Upper Ground Floor, Connaught Circus, Connaught Place, New Delhi-110001 Complaint No.

341 of 2020 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no.: 341 of 2O2O 03.03.2020 First date of hearing: Order Reserve On: 1,2.O4.2024 Order Pronounced On: 05.o7.2024 Complainant Respondent CORAM: Shri San eev Kumar Arora APPEARANCE: Shri Manu Ahlawat [Advocate Member Shri Gaurav Raghav (AdvocateJ Respondent ORDER 1.

The present complaint dated 27.01.20?.0 has been filed by thc complainant/allottee under section 31 of the Real Estate (llcgulation and Development) Acl,201'6 (in short, the ActJ read with rule 28 of thc Haryana Real Estate (Regulation and Development) Rules, 2017 (in short, the Rules) for violation of section 11(4)(a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions as provided under thc provision of the Act or the rules and regulations made there undcr or to the allottee as per the agreement for sale executed inrer se Complainant -t Page 1 ol17 ffiHARERA #. eunuennHrr A.

2.

Complaint No.

341 of 2020 Unit and proiect related details The particulars of unit details, sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: --l _l j hc ls. tly rre Sr.

No.

Particulars Details 1 Name ofthe project "Precision Soho Tower" in Sector 67 Sohna, Gurgaon.

Nature of the project Commercial 3 Project ared 2.46 acres 4 -= 5 RERA Registered/ not registered DTCP License No.

Not registered 72 of 2009 dated26.11.2009 valid upto 25.11.2019 6.

Name of licensec Hari Singh 7.

Unit no.

06 A, Ground Floor fPaqe no.

18 of comDlaint Unit admeasuring 731 sq. ft. (Page no.

1B of complaintl 9.

Date of MOU 05. of MOU 05.0 7.2 010 (page no.

17 of complaint) 10.

Assured return clause 4.

Thg developer shall pay th Assured Investment Return (a R!

60/- to the second party respectivel of the proposed space on or befor 15th ofevery month from luly 2010.

11.

Possession clause Not mentioned 12.

Due date of delivery of possession Cannot be ascertained, 3.

Total sale consideration Rs.27,85,770/- Page Z of 77 ffiHAREIU\ #, euRuenRvr 5.

B.

4.

341 of 2020 Facts ofthe complaint The complainant has pleaded the complaint on the following facts: That the complainant invested in the project floated by the respondent.

Upon the offer made by the respondent, the complainant transferrcd his hard earned money an amount of Rs.

47,95,110/- in the bank account of respondent in lieu of booking of two commcrcial spaces/shops upon the promises and assurances made by thc respondents.

It was mutually agreed upon by both the parties that thc total sale consideration of the unit to be Rs.

27,gS,1lO/-.

Further, the respondent offered another adjoining commercial space/unit at il lucrative price of Rs.

20,00,000/- making the total amount payable as Rs.

47,85,110/-.

The total amount was credited in respondent,s account by 03.07.2010.

That a memorandum of understanding was signed between the parties on 05.07.2010 where the developer agreed to allot to the buver thc 1,4. fo,"f "-orn, p"ia fry ,fo complainant (as per MOU on page no.

18 of complaint] Rs.

27.85,1 10/ + Rs.20,00,0r)0/ tor second unit (as per SOA on page no.

47 of complaint) 15.

Amount of assured return paid by respondent Rs.47,35,880/- From July 2010 to August 20 19 (As alleged by respondent) 16.

Occupation certif icate 10.10.2 019 (page no.

16 of replyJ 17.

Offbr of posscssion 22.10.2079 (Page no.

18 of replyl Page 3 of 17 ffiLIARERr ffi eunuenRlr 6.

7.

341 of 2020 space number 064 on ground floor, admeasuring super area of 731 sq. ft. @ Rs.

3810/- per sq. ft. of the super area amounting to a total consideration of Rs. ion of Rs.

27,85,110/-.

The respondent showed his inability to allot another commercial space at a reduced price as was offered by them earlier. llowever, the respondent agreed to repay the excess amount of Rs.

20,00,000/- to the complainant in a short span of trme.

That the respondent transferred a total of Rs.

14,00,000/ to complainant in three instalments, last instalment being on 04.02.201 j .

Thereafter, the respondent failed to pay the balance amount of Rs.

6,00,000/- till date and has now straightaway started to decline the complainant's demand by stating that no such balance payment is duc from his side.

Also, as stated in the memorandum of understanding that the buyer has opted for "Assured Investment Return Plan" whereby the respondent shall pay to the complainant Rs.

4 3,860/- pcr month with effect from fuly 2010.

That the respondent has now started to commit a default by not paying the said amount for the month of February 2018 and then from thc month of September 2019 till date.

Moreover, the respondents have failed to deliver the possession in time as the time specified in the builder buyer agreement is three years from the date of the agreement.

The respondents have miserably failed to deliver possession of thc said commercial shop/ space in the stipulated time and till datc no posscssion is delivered by the respondent.

Also, an additional demand of Rs, 4,77,486/- is made by the respondent vidc letter datcd 22.I0.2019 bearing subject "on offer of possession".

Upon a clarification sought by the complainant, as according to the memorandum of understanding the total sale consideration was Rs.

27,85,L70/-, no reasonable explanation was provided by the Page 4 ol 17 tr HARER,q #- eunuEnnti,r respondent.

This amounts to unfair trade practice and deficiency rn services on the part of respondents and is clear violation of Real Estate (Regulation and Development) Acl 2016.

Reliefsought by the complainant: The complainant has sought following reliefs; a. eliefs; a.

Direct the respondent to pay interest for every month of delay @ 180/o p.a. from the date of deposit.

9.

0n the date of hearing, the authority explained to the respondents/promoters about the contravention as alleged to havc been committed in relation to section 11(a) (a) of the Act to plearl guilb/ or not to plead guilty.

D.

Reply by the respondent 10.

The respondent has contested the complaint on the following grounds; 11.

That the present complaint is not maintainable as against the total invested amount of 27,85,LL0 /- excluding the service Tax, the total amount as received by the complainant as assured return is Rs.47,35,880/- i.e. from luly 2010 to Aug_Z019.

12.

That the present complaint filed by the complainant is liablc to bc dismissed as no builder buyer agreement is placed on record to corroborate the submissions as made in the application.

13.

That the present complaint is barred on account of the provisions of the Arbitration and Conciliation Act.

The present complaint is liable to be dismissed at the very threshold as the same is barred bv Section 8(1J ofthe Arbirration &Conciliation Act, 1996.

14.

That as the complete complaint is revolving around the memorandum of understanding dated 05.07.2010 executed between the partics and as the agreement is apparently not a builder buyer agreemenr, Complaint No.

341 of 2020 C.

8.

Page 5 of17 15.

1,6. trHARERA ffi eunuennnr 17.

341 of 2020 containing clauses of assured returns, hence the present complaint is not maintainable before the Hon'ble Authority.

That the present complaint filed by the complainant is ljable to bc dismissed as in the memorandum of understanding (M0tJl dated 05.07.2010 it is categorically mentioned that the disputes if any shall be subject to the jurisdiction ofthe Courts at New Delhi.

That the present complaint is not maintainable as the memorandum of understanding dated 05.07.2010.

5.07.2010.

The specific agreement entered into between the respondent and the complainant is prior to coming into force of the Act and Haryana Rules, hence the provisions of HRllRA are not applicable to the present complaint.

That the present complaint filed by the complainant is liable to bc dismissed as there is no agreement in respect of thc unit of thc complainant and as such there are no terms that were settled.

MOII can't be kept at par with the flat buyer agreement as the MOt, is referring to the returns on investment but has nothing about the allotment of unit.

As the flat buyer agreement was not signed, hence the present matter does not come within the ambit ofthe HRERA.

That the entire MOU is required to read as a whole and can't be read in isolation with reference to one clause, as per the said MOIJ it was catcgorically agreed that the after first lease out of the proposed spacc, the respondent shall stand completely discharged, absolved and relieved of all responsibilities / obligations under the said M0u including the liability to give Assured lnvestment Return.

As the complainant was time and again requested for signing the flat buyer agreement but it was the complainant who had neither signed the agreement nor taken the possession which was offered way back on October 2019, hence the present complaint is not maintainable as thc 18.

Page 6 ol17 HARERi MGURUGRAI/ _l Complaint No.

341 of 2020 respondent was not supposed to pay the assured returns after the construction was completed.

19.

That already an amount of Rs.

4Z,3S,ggO /- paid to the complainant on the investment of Rs, 27,85,110/- as per the terms of the is the memorandum of understanding (M0UJ dated 05.07.20 10.

20.

That the complainant thus didn't signed the buiider buyer agreemcnl, but still the complainant as per the terms of the memorandum o1 understanding [MOU] dated 0S.07.2010 was offered possession of the tjnit No. tjnit No.06 A in the proiect namely precision SOHO Tower, Curgaon on 0ctober 2019, On the date of the offer of the possession a sum of Rs.4,77,486/- was outstanding and payable by the comp)ainant.

As on date after including interest @12%o per annum a sum of Rs.

Z ,06,679 /- is outstanding and payable by the complainant.

As far the payment of the minimum assured returns is concerned the complainant was paid the minimum assured return of Rs.

47,35,990/- on his investment till Augusr- 2 019.

21.

The complainant to get the Sale deed registered alter making thc balance payment on the offer of possession, the unit could not be leased out.

The complainant against the investment of Rs.

27,g5,1 10/ have already received a sum of Rs.

47,35,990/- and is not qualified for the reliefs under HRERA.

22.

That the present complaint filed by the complainant is liable to be dismissed as in the projects wherein the occupation certjficate is issued prior to the enactment of HRERA (RERA in Haryana was set up on Z9luly 2077), hence the complaint is not maintainable.

23.

That the present complaint filed by the complainant is liable to bc dismissed as the complainant failed to comply the terms of thc said MOU dated 05.07.2070.

Page 7 of 77 24.

25.

26. ffi HARERA #- eunuennrv 27.

That the present complaint is not maintainable as per the provision of Section 19 [6J of Real Estate (Regulation and Development) Acr 2016 as no buyers agreement was executed between the parties, hcncc there is no actual allotment of any unit in favour of the complainant and the MOU was nothing more than an agreement of advancement of some amount.

That there was no agreement between the parties and hence there was even no time line ever fixed in respect of the construction.

Even thc complainant also failed to execute any flat buyer agreement. agreement.

That the present complaint filed by the complainant is liable to bc dismissed as the complainant had made false allegations against thc respondent without any substantial evidence, hence thc present complaint is not maintainable and is liable to be dismissed with heaw cost.

That the present complaint filed by the complainant is nothing other than the abuse of process of law, hence the present complaint is liable to be dismissed.

28.

That as far as the project is concerned the same was delivered in thc September 2017 after the receipt of the occupation certificate.

If thc complainant would had any intention to purchase the unit thcn at thc first instance the complainant would had signed the buyers agreemenr as per the terms of the MOU and further pursuant to the receipt of the letter dated October 2019 offering possession, the complainant must have taken the possession of the unit.

29.

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

The authenticity is not in dispute.

Hence, the complaint can be decided on the basis of theses undisputed documents.

E. lurisdiction ofthe authority Complaint No.

341 of 2020 Page I oi 17 ffi HARER,\ #-eunuew 30.

The respondent has raised objection regarding .iurisdiction of the present complaint.

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

E.I.

Territorial jurisdiction 31.

As per norificarion no. t/92/20t7-"tTCp dated .t4.12.2017 issucd by Town and Country planning Department, the jurisdiction of Ileal Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

In thc present case, the project in question is situated within the planning area of Gurugram District, therefore this authority has complete territorial jurisdiction to dealwith the present complaint.

E.II.

Subiect matter iurisdiction 32. iction 32.

Section 11[4J(a) ofrhe Act,2016 provides that rhe promorer sha]l bc responsible to the allottee as per agreement for sale.

Section 11(4)(al is reproduced as hereunder: Section 11(4)(a) tse responsible for oll obligotions, responsibilities and functions under the provisions of this Act or the rules ond regulations made thereunder or to the allottees os per the ogreement t'or sole, or to the ossociqtion of qllottees, os the case moy be, till the conveyance of all the apartments, plots or buildings, as the case mqy be, to the allottees, or the common oreas to the association of allotttees or rhe competent outhority, os the case nay be; Section 34-Functions of the Authority: 340) of the Act provides to ensure complionce of the obtigotions ctlst upon the promoters, the allottees ond the real estete aoents undet lhts ALI and he rulps ond regulotions mode lheret)ndct.

33.

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 complaint No.

341 of 2020 PaEe 9 of 17 HARERA ffi-GURUGRAI,I which is to be decided by the adiudicating officer if pursued by the complainants at a later stage.

F.

Findings on the obiections raised by the respondents.

F.l Obiection regarding complainant is in breach of MOU for non_ invocation of arbitration.

The respondent submitted that the complaint is not maintainable for the reason that the MOIJ contains an arbitration ciause which refers to the dispute resolution mechanism to be adopted by the parties tn the event of any dispute and the same is reproduced below for the readv reference; "13.

That all disputes or differences arising between the porties under or tn relotion to this Memorandum Of lJnderstonding, shall be resolvecl by reference to Arbitrotion in accordance with the Arbitration and Conciliatio; Act.

1996 7-hp lonue oj orbtLrotion *otl bc New Dplhi ontv. . hi ontv. .

The authority is of the opinion that th; jurisdiction of rhe authority cannot be fettered by the existence of an arbitration clause in the MO[J 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, scction U8 ofthe Act says that the provisions ofthis Act shall be in additjon to and not in derogation of the provisions of any other law for the tinlc being in force.

Further, the authority puts reliance on catena of judgments of the Hon'ble Supreme Court, particularly in National Seeds Corporotion Limited v.

M.

Madhusudhan Reddy & Anr. (2012) 2 SCC 506, wherein it has been held that the remedies provided under the Consumer Protection Act are in addition to and not in dcrogation of the other Iaws in force, consequently the authorjty would not bc bound to refcr parties to arbitration even if the agreemcnt bctwccn the parties had an arbitration clause.

341 of 2020 34.

35.

Page 10 of 17 HARERA #-GURUGRAI/ 36.

Further, in Aftab Singh and ors, v.

Emaar McF Land Ltd and ors., Consumer case no.

707 of Z0lS decided on 13.07.20, Z the National Consumer Disputes Redressal Commission, New Delhi (NCDRCI has held that the arbitration clause in agreements betlveen the complainants and builder could not circumscribe the jurisdiction of a consumer.

The relevant paras are reproduced below: "49.

Support to the above view is olso lent by Section Z9 of the recentty enocted Real Estate (Regulotian ond Development) Act,2016 (for short "the Real Estate Act").

Section Z9 ofthe said Act reads os followi:_ "79.

Bor ofjurisdiction - No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any motter which the Authority or the odjudicating oJfrcer or the Appellqte Tribunal is enpowered by or under this Act to determine qnd rmine qnd no injunction sholl be gronted by ony court or other authority in respect of ony actian taken or to be token in pursuonce ofany power conferred by or under this Act.,, It con thus, be seen that the said provision expressly ousts the jurisdiction of the Civil Court in respect of any matter which the Real Estote Regulotory Authoriq, estoblished under Sub-section (1) of Section 20 or the Adjudicqting Officer, oppointed under Sub-section (1) of Section Z7 or the Reol Estate Appellant Tribunal estoblished under Section 43 of the Reol Estate Act, is empowered to determine.

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

Ayyoswomy (supro), the matters/disputes, which the Authorities under the Real Estate Act ore empowered to decide, qre non-arbitrqble, notwithstanding on Arbitration Agreement between the porties to such matters, which, to a large extent, are similor to the disputes folling for resolution under the Consumer Act.

56.

Consequently, we unhesitatingly reject the arguments on behotfof the Builder qnd hold that an Arbitrotion Clause in the afore-stated kind of Agreements between the Cgmplainants ond the Builder connot circumscribe the jurisdiction of a Consumer Ford, notwithstonding the omendments made to Section B of the Arbitration AcL', 37.

While considering the issue of maintainability of a complaint before a consumer forum/commission in the fact of an existing arbitration clause in the application form, the Hon'ble Supreme Court in case titled as M/s Emaar MGF Land Ltd.

V.

Aftab Singh in revision petition no.

2629-30 /2OLA in civil appeal no.

ZJSTZ-Z3SL3 of Complaint No.

341 of 2020 Page 77 of 1? ffiHARERA *e- elnGnnM 2017 decided on 10.12.201g 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 aforesaid view. said view.

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

This Court in the series ofjudgments as noticed obove considered the provisions of Consumer protection Act, 1986 os well qs Arbitration Act, 1996 and laid down that complaint under Consumer protection Act being a speciol remedy, despite there being an arbitration ogreement the proceedings before Consumer Forum have to go on ind no error committed by Consumer Forum on rejecting the opplication.

There is reoson for not interjecting proceedings under Consumer protection Act on the strength an qrbitration agreement by Ac, 1996, The remedy uncler Consumer protection Act is a remedy provided to a consumer when th.ere is a defect in any goods or services.

The complaint means any ollegation in writing made by a comploinqnt hos also been explained in Section 2(c) of the Act.

The remedy under the Consumer prote;ion Act is conJined to complaint by consumer qs defrned under the Act for defect or deficiencies caused by a service provider, the cheap and a quick remedy hos been provided to the consumer which is the object ond purpose oftie Act as noticed obove." 38.

Therefore, in view of the ahove judgements and considering the provisions of the Act, the authority is of the view that complainant is well within right to seek a special remedl available in a beneficial Act such as the Consumer protection Act and RERA Act,2076 instead of going in for an arbitration.

Hence, we hqve no hesitation in holding that this authority has the requisite jurisdiction 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.

F,ll Obiection regarding iurisdiction of the complaint w.r.t the MOU executed prior to coming into force ofthe Act.

341 of 2020 Page 12 of 17 ff HARERA ffi, eunueruHr Complaint No. plaint No.

341 of 2020 39.

The respondent submitted that the complaint is neither maintainable nor tenable and is liable to be outrightly dismissed as the MOU was executed between the parties prior to the enactment of the Act and the provision of the said Act cannot be applied retrospectively.

4.0.

The authoriry is of the view that the provisions of the Act are quasi retroactive to some extent in operation and would be applicable to the agreements for sale entered into even prior to coming into operation of the Act where the transaction are still in the process of completion.

The Act nowhere provides, nor can be so construed, that all prcvious agreements would be re-written after coming into force of the Act.

Therefore, the provisions of the Act, rules and agreement have to be read and interpreted harmoniously.

However, if the Act has provided for dealing with certain specific provisions/situation in a specific/particular manner, then that situation will be dealt with in accordance with the Act and the rules after the date of coming into force of the Act and the rules.

Numerous provisions of the Act save the provisions of the agreements made between the buyers and sellers. 'Ihe said contention has been upheld in the landmark ,udgment of Neelkamol Realtors Suburban pvt.

Vs, llOI and others. (W.p 2737 of2077) decided on 06.12.2017 and which provides as under: . "119- Under the provisions of Section 18, the detay in hondtno over the possession would be counted from the dqte mentioned in the ogreement for sale entered into by the promoter and the ollottee prior to its registration under RERA.

Under the provisions of REI?A, the promoter is given o t'acility to revise the date of conplition of project and declare the some under Section 4_ The REM does not contemplate rewriting of contract between the flat purchoser and the promoter...

122. er...

122.

We hove already discussed that above stated provisions of the RERA are not retrospective in noture_ They mdy to some extent be hoving a retrooctive or quasi retroactive effect but then on that ground Ihe voliclity of the provisions of REM cannot be cholleinqecl 7.he Pqrliament is competent enough to legislate law huvng Page 13 of 77 HARERA GURUGRAM retrospective or retrooctive effect A low can be even framed to alfect subsisting / existing contractuol rights between th; parties in the larger public interesL We do not have ony doubt in our mind that the REM has been lramed in the larger jublic interest after o thorough study and discussion made ot the highest level by the Standlng Committee and Select Committee, wiich submitted its detailed reports.,, 41.

Also, in appeal no.173 of 2Ol9 titled as Mogic Eye Devetoper pvt, Ltd.

Vs, Ishwer Singh Dahiya, in order dated f7.72.2079 the Harvana Reat Estate Appellate Tribunal has observed- Thus, keeping in view our aforesaid discussion, we are of the considered opinion that the provisions of the Act ore 'quast retroactive to some operotion and wtll be opplicoble to the Complaint No.

341 of 2020 comoletion.

Ilence in cose of delay in the oft'er/delivery if po.rseisio, qs per the terms and conditions of the agreement Jbr sale the allottee shall be entitled to the interest/delayid possess'ion chorges on the reosonoble rote of interest as provid;d in Rule 1S ol the rules qnd one sided, unfoir ond unreasonohle rote oJ compensotion mentioned in the agreenent for sale is ltoble fo he ignored." 42.

The agreements are sacrosanct save and except for thc provisions which have been abrogated by the Act jtself.

Further, it is notecl that the builder-buyer agreements have been executed in the manner that there is no scope left to the allottee to negotiate any of the cJauses contained therein. d therein.

Therefore, the authority is of the view that the charges payable under various heads shall be payable as per thc agreed terms and conditions of the agreement subject to thc condition that the same are in accordance with the plans/perntissjons approvccl by the respective departments/competent authorities and are not rn contravention of any other Ac! rules and regulations made thereunder and are not unreasonable or exorbitant in nature.

Hence, in the light of above-mentioned reasons, the contention of the respondent w.r.t. jurisdiction stands re,ected.

Findings on the reliefsought by the complainant C.

Page 74 ot 17 ffi HARERA #" eunuennnr G.L Direct the respondent to pay interest for every month of delay @ 18%o p.a. from the date ofdeposit.

43.

In the present complaint, the complainant is seeking delayed possession charges on the amount paid and stated that the respondent has failed to deliver the possession of unit on the stipulated time.

The plea of the respondent is otherwise and stated that present complaint should be dismissed as there is no agreement in respect of the unit of the complainant and as such there are no terms that were settlcd regarding delay possession charges.

44.

The authority observes that the complainant has booked a unit in the project of the respondent namely, precision Soho Tower situated at sector-67, Gurugram.

The Memorandum 0f Understanding (MOU) for the said unit was executed on 05.07.2010 for the total sale consideration for 127,85,L70 /- and the complainant fully paicl an amount of 127,85,110/- and also an amount of{20,00,000/_ in lieu of another unit in the same project.

Thereafter the second unit was cancelled by the complainant and an amount of {14,00,000/_ was refunded by the respondent to the complainant.

45.

The occupation certificate for the project was received on 10.10.2019 and thereafter the possession was offered on 22.10.2019.

The authority is of the view that the MOU dated 05.07. ted 05.07.2010 is an assured return investment plan and as per clause 4 of the MOU the respondent has to pay an assured return @ {60/- to the allottee.

The said clause is reproduced hereunder: 4.

The Developer shall pay the Assured lnvestment Return @Rs.60/" to the second party respectively of the proposed Spoce on or belbre 1sth ofevery month.

Fron luly 2010. l Compiaint No.

341 of 2020 Page 15 of 17 HARERA ffi"GURUGRAM Complaint No.

341 of 2020 46.

Moreover, clause 5 of the MOU is also relevant and reproduced hereunder for ready reference: 5.

That the Developer upon completion of the construction oJ the proposed building/complex containing the said proposed Spoce ond ofter oll amounts due have been paid by the Buyer with respecL thereof in fult by the Buyer, the Developer sholl cause the propose(1 Space to be leased out cts per the then generally prevailing market rates.

The Buyer hereby duly authorises the Developer unconditionally to lease out the proposed spoce and sholl infotm the Buyer obout the terms & conditions of the leqse as settled with lessee_ The Buyer under no circumstances shqll be entitled to teose the said proposed Spoce and/or to otherwise deal with the sume clirectly without the consent in writing of the Developer.

The Lerms ond conditions of leose negotiated by the Developer, as aforesoid, shatl be final ond binding upon the Buyer. tn the event, the Buyer obstructs or neglects or defaults to sign the necessary documents of lease after it has been finalized by the Developer, the Developer shall have the right to terminate the Allotment of the proposed spqce tn fovour of the Buyer and shqll further have right to deal with the proposed space os it may deem ft od proper inctuding right to execute the lease in Developer,s own name. ln that eventuolity this MOU shall stand terminqted ond the Developer shall return Lhe considerotion amount o, poid by the Buyer to the Buyer, only ofter (leducting all the sums poid by the Developer on accounL (. accounL (.)f Assured lnvestment Return to the Buyer.

47.

Clause 5 of the Memorandum of Understanding (MOU) stipulates that upon completion of construction, the respondent builder is responsible for leasing out the unit in question.

Hence it is an investment return plan as assured return payment was started from date of allotment itsell Furthermore, according to Clause 4 from fuly 2010, the respondent is obligated to provide assured returns to thc Page 16 ol 17 tr HARER \ #- eunuenArr,i Complaint No.

341 of Z02O complainant.

Therefore, there is no basis for a possession in this matter and hence no case of DpC is 48.

Complaint stands disposed ol 49.

File be consigned to registry. claim of delayed made out.

Haryana Real Estate Regulatory Authority, Gurugram Datedi 05.07.2024 Page 17 of 77 Member