NIRMAL TUTEJA vs LANDMARK APARTMENTS PVT. LTD.

HARERA Complaint No.

639 of 2024 GURUGl?AN/ BEFORE THE Date oforder Nirmal Tuteja, R/oz A-ll/303, Param Puneet Apartments, plot No.

27, Sector 6, Dwarka, New Delhi-110075.

M/s Landmark Apartments P HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complainant d Regd. office: Plot No.

65, Sec Haryana-722002. ugram, Respondent CORAM: Ashok Sangwan Member APPEAMNCE: K.B Thakur (Advocate] Complainant Respondent ORDER 1.

The present complaint has been filed by the complainant/allottee under Section 31 of the Real Estate (Regularion and Development) Acr, 2016 (in short, the Act) read with rule 29 ofthe Haryana Real Estate [Regulation and Development) Rules, 2017 (in short, the Rules) for violation of section 1 1(4) (a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provision ofthe Act or the rules and regulations made there under or to the allottee as per the agreement for sale executed inter se.

ComDlaint no, Date of complaint Amarjeet Kumar (Advocate) Page 1 of 10 ! ;1 939e!L4LL 06.03.2024 07.05.2025 Versus A.

2. * HARERI ffieuRuennu Complaint No.

639 of 2024 Unit and proiect related details The particulars of the project, the details of sale consideration, the amount paid by the complainant, date of proposed handing over the possession and delay period, if any, have been detailed in the following tabular form: Deta ils 1.

I Name of the project Landmark Cyber Park, Sector 67, Gurugram Total project area 8.312 5 acres !e$rc lIIlgs9jqct Cyber Park DTCP license no. and 97-of,2008 dated 12.05.2008 vatid up to validitv status .2020 Name of licensee RERA Registered/ not reqistered ilmark Apartments Pvt.

Ltd.

9.

I Builder buyer's 12.08,2019 Sgreement _ MoU Unit no.

Due date of possession Amount paid by the complainant _ Assured return clause d vide no.

61 of 2019 dared .2019 2000 sq.ft., 5th Floor '(Paee 29 o&qqp lalnlll P4E92Z 9flerrrplent) 25.06.2008 lese!! {_9o_[p!41n!] 25. !41n!] 25.06.20L7 [Calculated as I nlrastructure and Ors. vs.

8.

U nit area admeasuring _lGupsrqe4_ 10. l per Fortune Trevor id br ]:R* uyfnr +:,zr,osar !pqcirc.

D'Lima and Ors. (12.03.2019 - SC); NU1sW2s3/20181 Rs.1,19,10,00 0 /- Page 37 of,ggmlla!n!l Rs.1,08,00,000/- {laggf! _o[!sn'd411] 4.

That the first party will pay Rs.S4l- per sq.ft. on 2000 sq.ft. as a assured return in the form of monthly rent to the Second Party till the date of Possession or 3 years or upto 1st 1, Assured Return paid rs per DTCP website) Page 2 of 10 B.

3. *HARER #-eunuennnr Complaint No.

639 of 2024 17.

Offer of possession "1.2.08.2079 fas per clause 3[a) & 3(gJ ofthe buyer's t agreement at page 28 and 30 of complaint) _ Facts ofthe complaint: The complainant has made the following submissions: - I.

That the parents of the complainant were approached by the respondent for purchasing a super area of 2000 sq.ft. in IT park, situated at Sec 67, Gurgaon amounting to total .g,l$mlR" of Rs.1,08,00,000/-.

Based on the various representations *ffiffi€ respondent, the complainant executed a Memorandum of UftWding dated 25.06.2008 and paid an amount of Rs.1,08,00,000/- rrith the condjtion thar the respondent will pay Rs.54/- persq,ft. on 20q0 sq.f;lper month as a assured return in the form of monthly rent to the complainant till the date of possession or 3 years or upto 1st leasing.

The respondent had committed and assured that the project will be completed within 3 years from the date of MoU.

That the agreement contained various one sided and arbitrary clauses, but the complainant could not negotiate on any of the clauses, since the respondent had already collected total consideration ofthe unit.

That any disagreement with the respondent regarding the said arbitrary and one_ sided terms of the agreement would have led to cancellation of the space and forfeiture of the paid money.

That the respondent failed to handover the possession of the unit within the promised time period. me period.

It is submitted that the complainant followed up with the respondent through various meetings and telephonic conversations with its representatives, enquiring about the status of construction of the project and seeking an affirmative date of possessron ofthe unit.

However, the respondent kept the complainant in the dark by giving false assurances as to the status of construction of the project, ,/ II.

III.

Page 3 of 10 trHARERA #*eunuennH,r IV.

That the respondent did not honour its commitment as per the MOU signed with the complainant.

Thus, the entire purpose of booking the unit in the project ofthe respondent has been utterly frustrated.

In view ofthe inordinate delay on the part of the respondent in offering possession of the unit, the complainant seeks termination of the agreement and a refund ofhis hard-earned money @10.7570 per annum.

That the complainant has ever since been trying to contact the respondent to request them to cancel the unit and seek refund of the amounts paid by her, but to the$.&-dissppointment of the complainant, he has not received any amornt triirard, Lhe refund rilldate.

VI.

That the inordinate delay in hand11[ 6ver possession to the complainant, is a shameful attempt by the respoirdenito usurp huge amount of money from the allottees and thereafter not delivering possession on time.

It is respectfully submitted that the respondent is liable to compensate the complainant by paying adequate interest and damages towards financial loss and mental agony and hardships caused to the complainant which has fiustrated the reason for booking the said unit.

Relief sought by the complainant: C.

4.

The complainants have sought following relief(s): 5. a) Direct the respondent to refund the paid-up amount alongwith interest. b) Litigation cost.

0n the date ofhearing, the authority explained to the respondent/promoter about the contraventions as alleged to have been committed in relation to section 11(4)(aJ ofthe Act to plead guilty or not to or not to plead guilty.

Reply by respondent: The respondent vide reply dated 20.05.2024 contested the complaint on the following grounds: i.

That the complainant along with her husband with a sole motive to invest and for gains signed an MoU dated 25.06.2008 and booked a unit in Complaint No.

639 of 2024 ,/ D.

6.

Page 4 ol10 ffTIARERA S- eunuennnr that the respondent has besrd!{{Bj!

Complaint No.

639 of 2024 "Landmark Cyber Park" admeasuring 2000 sq. ft.

That the respondent was liable to pay assured return till 3 years, but the respondent has paid excess returns for 3 quarters to the complainant till lune 2013 and to the tune to Rs.43,71,084/- as per MoU dated 25.06.2008.

That the respondent acting on the assurances given to the complainant, completed the project in time and the same is evident from the letter dated 29.05.2019 wherein the respondent has requested the complainant to clear its dues (ifany) and also intimated the complainant ation of the conveyance deed lll. for the space booked in CyUe{,jffi{ff requested the complainant to "q'PI'e5'f come forward and complete all a/er work formalities.

That the complainant on 12.082019 had entered into a builder buyer,s agreement and took the possession of the unit allotted to the complainant.

Relevant para of the builder buyer's agreement dated 1,2.08.2019 is reproduced herein for the sake of readiness: "3.

Possesslon of "the said l|nit" o) 7'hat the said unit is reody for handover in all respect os bare she ond the possession of the soid unit / lT spoce sholl be deemed handed over to the Allottee ofter signing ofthis agreement. b) That the Allottee sholl have an option to give the leasing rights of the soid unit to the Compony /Developer to leose the soid unit individually or along with other un[t contiguous or non contiguous after signlng the lease orrangement agreement (Annexure - B) separately along with this agreement. agreement.

That the Allottee sholl never get the physical possession of the unit ofter entering into the leose affongement agreement and sholl keep their un[t in the lease pool option only." Thus, it is evident that the complainant has already taken possession of the unit and the present complaint seeking refund is not maintainable.

That the complainant has wilfully agreed to the terms and conditions of the agreement and is now at this belated stage has raised issues and concerns regarding his contractual obligations.

Page 5 of10 lt. *HARER, #" eunuennvr Complaint No.

639 of 2024 v.

That the complainant has failed to disclose that she in possession of the said unit.

7.

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 ofthose undisputed documents and submissions made E. by the parties. furisdiction of the authority: The authority observes that it jurisdiction to adjudicate the below.

E.

I Territorial iurisdiction has territorial as well as subiect matter plaint for the reasons given 9.

As per notificatio n no.

7 /92/20L7-tfep.4ared j,4.12.201,2 issued by Town and Country Planning Deparrment, th'e iurisdictjon of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram. [n the present case, the proiect in question is situated within the planning area of Gurugram district.

Therefore, this authority has complete territorial jurisdiction to deal with the present complaint.

II Subiect matter iurisdiction 10.

Section 11(41(aJ of the Act, 2016 provides that the promoter shall be responsible to the allottee's as per agreement for sale.

Section l1(aJ(a) is reproduced as hereunder: Section 1U4)(q) Be responsible for oll obligotions, responsibilities and functions undet the provisions oI this Act or the rules ond regulotions made thereunder or Lo the allottees as per the ogreement for sale, for sale, or to the ossociation of ollottees, os the case moy be, till the conveyonce ofall the apartments, plots or buildings, os the cose may be, to the ollottees, or the common areos to the ossociotion of ollottees or the competent outhority, as the cose moy be; Section 34-Functions of the Authority: 34(r, of the Act provides to ensure complionce of the obligotions cast upon the promoters, the allottees ond the real estote ogents under this Act ond the rules ond regulotions mode thereunder. / Page 6 of 10 11.

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.

F.

Findings on the relief sought by the complainants.

F.l Direct the respondent to refund the paid-up amount alongwith interest.

12.

In the present complaint, the complainant intends to withdraw from the project and is seeking return ofthe amount paid by her in respect ofsubject unit along with interest from the date of payment until realization under Section 18(11 of rhe Act.

Sec.

18(Uqf!he_Act is reproduced below for ready reference: * HARERA *&*eunuennll Complaint No.

639 of 2024 ;r'lix, "section 18: - Return o7 amilffitwfrhompensotion 1B(1). lfthe promoterfails tacp\plete or is unoble to give possession an.aportmen.t, plot, or.bu.ilding. - , , (o) in accordonce with the iemii of th{ogreement for sale or, os the cose moy be, duly completed by.tlie datn'specified therein; or [b) due to discontinuance of his busiress os o developer on account of suspension or revocotion of the registration under this Act or for ony other reason, he sholl be lioble on demand to the allottees, in case the allottee wishes to withdrow from the project, without preiudice to any other remedv ovailoble. to reLurn the qmounL reteNed by htm n respect o1 thiL oportment, plot, building, as the cose moy be, with interest ot such rote os may be prescribed in this behalfincluding compensotion in the monner os provi r os provided under this Act: Ptovided that where on ollottee does not intend to withdrow from the project, he sholl be paid, by the promoter, interest for every month of deloy, till the honding over ofthe possession, at such rate as moy be prescribed.

13.

Due date of handing over possession: The Hon,ble Supreme Court in the case of Fortune Infrastructure ond Ors. vs, Trevor D,Limo and Ors. (12.03.2018 - SC); IvIANU /SC /0253 /2018 observedthat.,o person connot be made to wait indefinitely for the possession of the Jlats ollotted to them and they are entitled to seek the refund of the omount paid by them, olong with compensation.

Although we ore awore of the fact that when there was no delivery period stipulsted in the dgreement, a reasonable time has to be taken into consideration.

In the facts and circumstonces of this case, a Page 7 ol10 ,// *HARER. s-eunuennl,r Complaint No.

639 of 2024 time period of 3 years would have been reasonable for completion ofthe contracL 14.

In view ofthe above-mentioned reasoning, the date ofexecution of MoU i.e.

25.06.200A is ought to be taken as the date for calculating due date of possession.

Therefore, the due date of handing over of the possession of the unit/space comes out to be 25.06.207-1, 15.

Admissibility of refund: 0n consideration of the documents available on record and submissions made by both the parties, the authority is satisfied that the respondent has completed tho construction and development of the project and go tthe OC/CC on Z&rhdi8.

Ir is observed thar vide clause 3(aJ and (e) of the buyer's ,g."ur!i,t dated 12.08.2019, it was mutually agreed between the parties that thenespqndent will give possession of the said unit in raw/bare shell condition and the same is ready for handover in all respects and shall deemed to be handed over to the complainant on the date of its execution. execution.

Furthermore, vide clause 3(gJ of the buyer,s agreement, the complainant was obligated take physical possession of the unit within 30 days after signing of the that agreement.

Thus, the said BBA which was executed after obtaining OC/CC can be termed as offer of possession in view of the above said terms of the BBA.

However, the complainant is not willing to continue with the project and is seeking refund of the entire paid-up amount along with interest by filing the present complaint dated 06.03.2024.

The authority observes that Section 1g( 1) is applicable only in the eventuality where the promoter fails to complete or unable to give possession ofthe unit in accordance with terms ofagreement for sale or duly completed by the date specified therein.

This is a case where the promoter has already offered possession of the unit after obtaining occupation certificate.

Moreover, the allottee has approached the authority seeking withdrawal from project after obtainjng of occupation/completion certificate by the respondent.

The allottee has not produced any credible Page I of 10 ffiHARER^ HeunGnnvr evidence of having sought refund/withdrawal from the project after the due date ofpossession and only when agreement was executed and demand for due payment was raised, she has filed a complaint before the authority.

16.

In the instant case, there is a delay in handing over the possession by the respondent as the due date ofpossession was 25.06.2011, whereas the offer ofpossession was made in terms ofthe BBA on 12.09.2019, after obtaining the occupation/completion certificate on 26.lZ.ZOlg and thus, becomes a case to grant delay possession charges.

The authority observes that interest ofevery month ofdelay at the p te of interest could be granted to the complainant/allottee in te- on 18[1] of the Act, 2016 had *re wished to continue in the proj{ffi er, the complainant wishes to withdraw from the project ana naiitugpt refund of the paid-up amount along with interest vid terest vide present complaini dated 06.03.2024.

17.

The authoriry observes thar right under Section lB(1,) /lg(4) of the Act, 2016 accrues to the allottee on failure of the promoter to complete or unable to give possession of the unit in accordance with the terms of the agreement for sale or duly completed by the date specified therein.

If allottee has not exercised th?e:&& 8EfidEif,w from the proiect after the due date of possession is over till the offer of possession was made to her, it can be inferred that the allottee has tacitly consented to continue with the project.

The promoter has already invested in the proiect to complete it and has offered possession of the allotted unit.

Now, when unit is ready for possession, such withdrawal on considerations other than delay such as reduction in the market value of the property and investment purely on speculative basis will not be in the spirit of the Section 1g of the Act.

Further, Section 19(10) of the Act obligates the allottee to take possession of the unit within a period of two months from the date of issuance of occupation certificate. / Complaint No.

639 of 2024 Page 9 of10 ffUngPt #* euRuennnr 18.

This view is supported by the jud in case of Ireo Grace Realtech pvL (Civil appeal no.

5785 of 2019), yiew that those allottees are obli apartments since the construction offered after issuance of occupation order is reproduced under for ready "(i) We are ofthe view that ollottees at to toke possession of the possession oJfered on 28.06.201 31.05.2019.

The Developer is the period of delay which has possession wos made to 19.

In view ofthe above, no is made out and maintainable.

20.

File be consigned to Haryana Real Estate Dated; 07.05.2025 of Hon'ble Supreme Court of India v/s Abhishek Khanna and Ors, in the Hon'ble Apex court took a to take the possession of the completed and possession was ficate.

Relevant para of the said Nos.

1 ond 2 in Chort A ore the constuction wos ofOccupation to pay Deloy 27.11. loy 27.11.2018 till the dote of 18(1) ofthe dismissed and eon t for rof r,2076 rg not GURU HAR RA ?AM Page 10 of10 I Complaint No. e39 of z0z I