NITASHA MEHRA vs NEO DEVELOPERS PVT.LTD.

Nitasha Mehra, R/oz - A-12,1"t FIoor, Ashok Vihar, Phase I, New Delhi-110052.

M/s Neo Developers Pvt.

Regd. office at: - 120 Tower-8, Signature T NH-8, Gurugram-12 CORAM: Ashok Sangwan APPEARANCE: Garvit Gupta (Advocate) Venket Rao [Advocate)HARERA 1.

The present complaint has ORDER been filed by the complainant/allottee under section 31 of the Real Estate (Regulation and Development) Act, 2016 (in short, the ActJ read with rule 28 of the Haryana Real Estate (Regulation and Developmentl Rules,2017 (in short, the Rules) for violation ofsection 11[4)(a) ofthe Act wherein it is inter oha prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provisions of the Act or the N+-\ P \-g\, rq- \ l,, fl\ \5 il l:' i rt ll ii ,i.' lt fi t,}; al ,r, ,r - !1*/ Gs:/ w* *HARERA # aIRUGRAM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint No.

1085 of 2024 Complaint no. : lOaS of2024 Date of complaint ': 22.O3.2O24 Date oforder ; 20.11.2024 Complainant Respondent Member Complainant Respondent Page I of 27 HARERA ffiGURUGRAM Complaint No. lO85 ot 2024 Rules and regulations made thereunder or to the allottee as per the agreement for sale executed infer se.

A, Unit and proiect related details 2.

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: S, N.

Particulars Details 1.

Name ofthe Droiect Neo Square, Sector-109, Gurugram 2.

Proiect area 2.',, l acres 3.

Nature of the Droiect mmercial colony 4 [rnit no.

Shop no.-126, First floor (As on page no.

37 of complaint) 1911sq.ft. [As on page no.

37 of complaint] 6.

Date of execution of buyer's agreement 05.01.20t7 [As on page no.35 ofcomplaintJ 7.

MoU 05.07.2017 (page 60 of complaint) 8. plaint) 8.

Possession clause 5,2 That the company shall complete the construction of the said building/complex within which the said space is located within 48 months from the date of execution of this agreement or from the start of construction whichever is later and apply for grant of completion/occupancy certificate.

The company on grant of occupancy/completion certilicate shall issue final letters to the allottee who shall within 30 days, thereofremit all dues.

5.4 That the allottee hereby also grants an additionalperiod oI6 months ofter the completion date ds grace period to the company after the expiry ofthe aforesaid period.

Page 2 of 27 ffiHARERA H eunuennvr Complaint No.

1085 of 2024 B.

Facts ofthe complaint 3.

The complainant has made the following submissions: - I.

That on the basis ofthe representations made by the respondent, the complainant booked a unit admeasuring 1911 sq.ft. in the pro)ect of the respondent named "Neo Square" at Sector 109, Gurugram vide booking application form dated 22.12.2016.

It is pertinent to mention here that the complainant at the time ofbooking had paid an amount (Emphasis supplied) As on page no.47 of comolaint) 9.

Date of start of construction The Authority has decided the date of start of construction as 15.12.2015 which was agreed to be taken as date of start of construction for the same project in other matters.

In CR/1329 /2019 it was admitted by the respondent in his reply that the construction was started in the month of December 2015.

10.

Due date of possession Y 25.09.2024) ted from date of execution of agreement i.e.

05.01.201 7 being Grace period of 6 months is mentioned as proceedings dated .2021_ unqualified) (inadvertently 15.06.2020 on 1,1,.

Total sale consideration Rs.

1,08,21,993/- (As on page no.

53 of complaintl 72.

Amount paid by the complainant Rs.

L,L0,74,016/- [As on page no.

124 of reply] 13.

Occupation certificate /Completion certifi cate 1,4.08.2024 1,4.

Offer of possession Not offered 15. ffered 15.

AR paid Rs.50,77,7L0 /- (page 125 of replyl Page 3 of 27 ffiHARERA ffi aLnuennH,r Complaint No.

L085 ot 2024 of Rs.42,00,000/- and the same was duly acknowledged by the respondent vide booking application form dated 22.72.2076.

Thereafter, a buyer's agreement and MoU dated 05.01.2017 was executed between the parties vide which a unit bearing no.

125, first floor admeasuring super area of L911 sq.ft. was allotted to the complainant.

II.

That as per clause 19 ofthe MoU, the total basic sale consideration of the unit was Rs.80,26,200/- and an amount of Rs.42,00,000/- had already been paid by the t along with the BSP & services tax as per the said clause of the MoU.

The respondenr had categorically assured at the time of the booking that it would be diligent in making payment towards the assured return and in adhering to its contractual obligations.

It is submitted that as per clause 19 of the said MoU, it was agreed that the respondent would pay monthly assured return of Rs.1,91,100/-.

Furthermore, it was also agreed vide clause 8 and 9 ofthe said MoU that the responsibility of assured returns to be paid by the respondent would cease on , the respondent had agreed to sq. ft per month rent to the complainant from possession till first lease.

Moreover, it was decided as per clause 13 of the MoU that the respondent was to finalize the terms for leasing the premises with a perspective lessee with minimum price of Rs.100/- per sq.ft. and the allottee would be entitled to receive lease rentals.

That the respondent categorically assured the complainant that the respondent would continue to make the payments against the monthly assured returns and no default whatsoever would be III.

Page 4 of 27 HARERA MGURUGRAII committed by it and accordingly the complainant based on the said assurances continued to make the payments against the unit as allotted by the respondent.

It is pertinent to mention here that the complainant had made a payment of Rs. ent of Rs.1,70,74,076/- out of the total sale consideration of Rs.80,26,200/-.

The said payments have been made against the basic sale consideration, GST charges, EDC/lDC and preferential location charges.

IV.

That the complainant wi elay or default complied with her contractual obligations total basic sale consideration as aforesaid.

However, respo kept on making delayed payment June,2019.

Some of the cheques issued by the respondent towards t<l payment of assured return amount were even dishonoured.

That upon the grievances raised by the complainant regarding the non-payment ofassured returns, it was assured and promised by the representatives of respondent vide its letter dated 18.12.2019 that the said amount would be adjusted along with interest at the time of e said payment could be made as the funds from the bank account and that i6duditriis iie refusing,to approve the withdrawals from the proiect account for the purpose of meeting the commitments of the interest payments.

That the complainant vide letter dated 07.01.2020 requested the respondent to remit the amount of the monthly assured returns.

Moreover, vide ttre said letter it was informed to the respondent that it has charged Rs.9,55,500/- towards PLC without even providing the copy of the approved floor plan and layout plan.

On account of the Complaint No.

1085 of 2024 vt.

Page 5 of 27 ffiHARERA # aiRTrcRAM Complaint No.

1085 of 2024 same, the complainant demanded the refund of PLC charges vide the said letter. !

VII.

That as per clause 12 of the MoU and 5.2 of the agreement, the construction of the project was to be completed by the respondent within a period of 48 months from the date of execution of the agreement or the date of start of construction.

Thus, the due date to hand over the possession as per the terms of the MOU was 05.01.2027.

The complainant, visited the office of respondent in lantary 2021 to enquire ab( date of possession and pending payment of the monthly possession of the unit rns. unit rns. [t was informed that the be handed over along with C.

4. t interest and monthly assured Vlll.

That there is an inordinate delay ofmore than 3 years calculated from the due date of possession upto April 2024 and till date basic requirements including handing over of possession and adjustment of the amount has not been completed due to default of respondent.

Reliefsought by the complainant: The complainant has sought following relieffs): L Direct the respondent to pay delayed interest on amount paid.

Direct the respondents to make payment towards assured return.

III.

Direct the respondent to pay guaranteed return and lease rental as per MoU and to put the unit on lease. lV.

Direct the respondent to demarcate the unit and offer possession of the unit in habitable condition after obtaining the occupation certificate.

V.

Direct the respondent to refund the PLC charges.

Page 6 of 27 ffiHARERA # aJRuGRAM 5.

Complaint No.

1085 of 2024 0n 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(aJ (a) ofthe Act to plead guilty or not to plead guilty.

Reply by the respondent The respondent has contested the complaint by filing reply dated 05.06.2024 on the following grounds: - ID That the respondent initially cancelled the unit ofthe complainant vide cancellation letter dated ..Ufi1.2017 due to inability of the complainant to clear the outstanding dues and non-payment of dues as per the payment plan as agreed between the parties.

Prior to cancellation vide above cancellation letter reasonable opportunity was provided to the complainant for clear the dues by issuing repeated reminders and request vide demand letter dated 24.04.2017, reminder letter dated 27 .05-20L7 , despite of the same failed to clear the dues. the dues.

Howeve assurances by the complainant to clear the outstanding dues as complainant (iD That despite per the terms and conditions of the agreement/MOU, again deliberately an intentionally failed to clear the dues.

The respondent again afforded reasonable opportunities to the complainant to clear the outstanding dues vide demand/reminder letters dated 30.70.2020, 15.09.2027, 30.09.2021,, however complainants failed to clear the same.

The respondent upon failure of the complainant to clear the dues was constrained to issue due reminder letter dated 29.06.2022.

D.

6.

PaEe 7 of 27 HARERA GURUGRAM Complaint No.

70BS of 2024 (iiiJ At the outset, the complainant has erred gravely in filing the present complaint and misconstrued the provisions of the Act, 2016.

It is imperative to bring the attention ofthis Authority that the RERA Act was passed with the sole intention of regularisation of real estate projects, and the dispute resolution between builders and buyers and the reliefs sought by the complainant cannot be construed to fall within the ambit of REM Act.

That the complainant has failed to provide the correct/complete facts that she is investor and not allottee therefore, the same are repro( reunder for proper adjudication of the present matter. [iv) That the complainant with t]e intent to invest in the real estate sector as an investor, approached the respondent and inquired about the pro.iect i.e., "Neo Square" situated at Sector-1o9, Gurugram, Haryana being developed by the respondent.

That after being fully satisfied with the project and the approvals thereof, the complainant decided to apply to the respondent by submitting a booking application form dated 22.L2.20t6, seeking allotment of unit no.

126, admeasuring 1911 sq. ft super area on the first floor of the project having a basic sale price of Rs.80,26,200/-. ,26,200/-.

The complainant, considering the future speculative gains, also opted for the investment return plan being floated by the respondent for the instant proiect. (v) That since the complainant had opted for the investment return plan, a Memorandum of Understanding d,ated 02.01.201.2 was executed between the parties, which was completely a separate understanding betlveen the parties in regard to the payment oFassured returns in lieu of investment made by the complainant in the said proiect and leasing of the unit/space thereof.

It is pertinent to mention herein that as per Page I of27 ffiHARERA S-eunuennrrl Complaint No. lO85 of 2024 clause 2 ofthe MoU, the MoU was effective from 02.01.2017 and as per clause 8 of the MoU, the returns were to be paid till notice of possession.

It is also submitted that as per clause 14 of the MoU, the complainant had duly authorised the respondent to put the said unit on lease. (vil That by no stretch of imagination it can be concluded that the complainant is "allottee/consumer." The complainant is simply investor who approached 1 respondent for investment returns and rental income. opportunities and for a ofassured return, which is not inable before the Authority upon ', any orders or continuation of or any directions thereof may tantamount (viii) in the present complaint is claiming the reliefs on basis of the terms agreed under the MoU betlveen the parties which is a distinct agreement than the buyer's agreement and thus, the MoU is not covered under the provisions of the RERA Act, 2016.

Thus, the said complaint is not maintainable on this basis that there exists no relationship of builder-allottee in terms of the MoU, by virtue of which the complainant is raising her grievance. (ix) That as per clause 5.2 of the 'BBA', the respondent was obligated to complete the construction ofthe said complex within 36 months from the date of execution of the agreement or from start of construction, whichever is later and apply for grant for grant of occupancy/completion certificate.

It is submitted that as per clause 5.4 of the agreement an additional 6 month grace period was allotted to the respondent post Page 9 of 27 MHARERA S- eunuenRvr Complaint No.

1085 of 2024 expiry ofthe aforesaid period.

Accordingly, the due date of delivery of possession in the present case is 36 months + 6 months grace period to be calculated from 02.01.2077, and the due date ofpossession in the instant case comes out to be 02.07.2021. [x) That the respondent issued demand request/reminder to the complainant to clear the outstanding dues against the booked unit.

It is to be noted that the complainant miserably failed to comply the payment plan under which each and every occasion fa t was allotted to her and further on nit the outstanding dues on time as and when demanded dent.

The complainant as per the records ofthe respondent had only paid Rs.f ).0,2 4,0L6 /- against rhe total due amount of Rs.2,12,31,098/-.

It is to be noted that there is still an outstanding due of Rs.1,01.,57,082/- which is to be paid by the complainant against the unit booked.

Further, against the above said amount paid by the complainants, the respondent had already paid Rs.56,41,900/- as assured return to the complainant. (xi) That though the complainant may have cleared the basic sale price of the said commercial property, however, she is still liable to pay all other charges such as VAT, interest, registration charges, security deposit, duties, taxes, levies etc. as and when demanded. (xii) That the respondent is raising the VAT demands as per the government regulations.

It is pertinent to mention here that the respondent has not availed the amnesty scheme under Rul 49A of HVAT Rules, 2003, as evident from the list of builders as circulated by the Excise & Taxation Department Haryana. t Haryana. (xiii) That as per the agreement so signed and acknowledged, the completion of the said unit was subject to the midway hindrances Page lO of 27 ffiHARERA #-aJRTJGRAM 7.

Complaint No. l0BS of 2024 which were beyond the control of the respondent and in case the construction of the said commercial unit was delayed due to such 'force mareure' conditions, the respondent was entitled for extension of time period for completion.

It is to be noted that the development and implementation of the said project have been hindered on account of several orders/directions passed by various authorities/forums/courts which were beyond the power and control got delayed from its sched ne.

Howevel the respondent is committed to compete in all aspect at the earliest. een filed and placed on the pute.

Hence, the complaint can be decided on the basis of those undisputed documents and submission made by the parties. f urisdiction of the authority The respondent raised a preliminary submission/objection that the authority has no jurisdiction to entertain the present complaint, The reiection of complaint on ground The authority observes that it has territorial as well as subiect .matter iurisdiction to adjudicate the present complaint for the reasons given below.

E.l Territorialiurisdiction As per notification no. \/92/2017-1TCP dated t4.72.2017 issued by Town and Country Planning Department, the iurisdiction 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 Page Al of 27 8. ffiHARERA S arnueirnl,r Complaint No.

1085 of 2024 District, therefore this authority has complete territorial iurisdiction to deal with the present complaint.

E.Il Subiect matter iurisdiction 9.

Section 11(a)[a) of the Act, 2016 provides that the promoter shall be responsible to the allottees as per agreement for sale. for sale.

Section 11(4)(a) is reproduced as hereunder: Section 77.....(4) The promoter sholl- (a) be responsible for all obligqtions, responsibilities and functions under the provisions of thit Aif.-Qr the rules ond regulqtions mode 10.

11.

F, thereunder or to the allottees Er the ogreement for sole, or to cdse may be, till the conveyance the associqtion of allottees, t of all the apartments, plo as the cose moy be, to the allottees, or the common areds.tothe ossociotion ofallottees or the competent authority, as the cdsema]..be; Section 34- Functions oI the Autho;ityt 34(D of the Act provides to dnsure complionce of the obligotions cast upon the promoters, the ollottees ond the reol estate agents under this Act and the rulu and regulotions made thereunder.

So, in view of the provisions ofthe Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non- compliance of obligations by the promoter.

Findings on the obiections rais.e4&y the respondent.

F.

I.

Obiection regarding the complainants being investor.

The respondent has taken a stald that the complainant is an investor and not an allotteefconsumer.'Therefore, she is not entitled to the protection of the Act and is not entitled to file the complaint under section 31 ofthe Act.

The Authority observes that any aggrieved person can file a complaint against the promoter if the promoter contravenes or violates any provisions of the Act or rules or regulations made thereunder.

Upon careful perusal of all the terms and conditions of the buyer's agreement dated 05.01.2017, it is revealed that the complainant is a buyer, and she has paid total price of Rs.1,10,74,016/- to the promoter towards purchase of a unit in its project.

At this stage, it is Page 12 of 27 ffiHARERA # eunueirnr,,r important to stress upon the definition of term allottee under the Act, the same is reproduced below for ready reference: "2(d) 'ollottee" in relqtion to q reol estqte project means the person to whom o p o whom o plot apartment or building, as the case moy be, has been ollotted, sold (whether qs Jreehold or leasehold) or otherwise tronsferred by the promoter, ond includes the person who subsequently acquires the ssid ollotment through sale, tonsfer or otherwise but does not include a person to whom such plot, apartment or building, qs the case may be, is given on renti' ln view of above-mentioned definition of ,,allottee,, as well as all the terms and conditions of the agreement, it is crystal clear that the Complaint No.

1085 of 2024 complainant is an allottees as t ct unit was allotted to her by the ti the Act.

Moreover, the order dated 29.01.?019 in appe promoter.

Further, the vestor is not defined or referred in Estate Appellate Tribunal in its 00105 57 titled as M/s ft Srushti Sangam Developers Pvt.

Ltd, Vs.

Sarvapriya Ledsing (p) Lts.

And anr. has also held that the concept of investor is not defined or referred in the Act.

In view of the above, the contention of promoter that the allottee being investor is not entitled to protection of this Act stands rejected. \:EREt, .-J F.

II Obiection regarding the proiect being delayed because of force maieure circumstances.

12.

The respondent/promoter has raised the contention that the construction of the project has been delayed due to force majeure circumstances such ban on construction due to orders passed by NGT, EPCA, Courts/Tribunals/Authorities etc.

As per clause 5.2 & 5.4 of the agreement dated 05.01.2017, the possession ofthe unit in question was to be offered within a period of48 months from the date ofexecution of buyer's agreement or start ofconstruction whichever is Iater alongwith a grace period of 6 months.

Accordingly, the due date of possession has Page 73 of 27 ffilARElA S- eunuennvr Complaint No.

1085 of 2024 been calculated as 48 months from the date of execution of buyer's agreement, being later. ing later.

Further, a grace period of 6 months has already been granted to the respondent-promoter and thus, no period over and above grace period of6 months can be given to the respondent-builder.

G.

Findings on the relief sought by the complainant.

G.L Direct the respondent to make payment towards assured return.

G.II Direct the respondents to pay delayed interest on amount paid.

G.l Assured Return: 13.

The complainant in the present complaint is seeking relief w.r.t payment of assured return dp per the terms of the MoU dated 0 5.01.2017.

The complainant has submitted that as per clause 19 ofthe said MoU, it was agreed that the respondent would pay monthly assured possession.

The complainant is seeking unpaid assured returns on monthly basis as per the MoU dated 05.01.2017 at the rates mentioned therein.

It is pleaded by the complainant that the respondent has not complied with the terms and conditions of the said MoU.

14.

The respondent has submitted that the complainant in the present complaint is claiming the reliefs on basis ofthe terms agreed under the MoU between the parties which is a distinct agreement than the buyer's agreement and thus, the MoU is not covered under the provisions ofthe RERA Act, 2016.

Thus, the said complaint is not maintainable on this basis that there exists no relationship of builder-allottee in terms of the MoU, by virtue of which the complainant is raising her grievance.

Page 74 of 27 HARERA GURUGRAM Complaint No.

1085 of2024 15.

At this stage, it is important to stress upon the definition of term allottee under the Act, 2016.

The definition of "allottee" as per section 2(d) of the Act of 2015 provides that an allottee includes a person to whom a plot, apartment or building has been allotted, sold or otherwise transferred by the promoter.

Section 2(d) of the Act of 2016 has been reproduced for ready reference: 2 [d) "ollottee" in relation to o reol stqte. eol stqte. project, means the person to whom o plot, a pa rtment or b ui ld ing, qs the co been ollotted, sold (whether os freehold or leasehold) or otherwise tra the promoter, ond includes the person who subsequently acquires the said h sale, tronsfer or otherwise but does not include o person to whom nt or building, as the cose moy be, is given on renti' Keeping in view the above-mentioned facts and the definition ofallottee as per Act of 2016, it can be said that the complainant is an allottee.

16.

The MoU dated 05.01.2017 can be considered as an agreement for sale interpreting the definition of the agreement for "agreement for sale" under section 2(cJ of the Act and broadly by taking into consideration the objects of the Act.

Therefore, the promoter and allottee would be bound by the obligations contained in the memorandum of understandings 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(4)(a) ofthe Act.

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

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

The "agreement for sale" after coming into force of this Act (i.e., Act of 2 016) shall be in the prescribed form as per rules but this Act of 2016 does not rewrite the "agreement" entered between promoter and allottee prior to coming Page 15 of 27 HARERA ffiGURUGRAI/ Complaint No.

1085 of2024 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 India & Ors., (Writ Petition No.

2737 ot ZOIT) decided on 06.t2.2077.

17. .2077.

17. lt is pleaded on behalf of respondent/builder that after the Banning of Unregulated Deposit Schemes Act of 2019 came into force, there is bar for payment ofassured returns to an allottee.

But the plea advanced in this regard is devoid of merit.

Se 2(4) of the above mentioned Act defines the word 'deposit'agg4 t ofmoney received by way of an advance or loan or in any to return whether after a WJ deposit toker with a promise or otherwise, either in cash or in kind or in the form of a specified se:ice, with or without any benefit in the form of interest bonus, profit or in any other form, but does not include: (i) an omount received in the course of, or for the purpose of business ond bearing q genuine connection to such business including (ii) advonce received in connectjon with considerotion of on immovoble property, under an ogreement or arrangement subject to the condition thot such advance is adjusted agqinst such immovable properly as specijied in terms ofthe ogreement or orangement 18.

A perusal ofthe abovimentiond definition ofthe term ,deposit,, shows that it has been given the same meaning as assigned to it under the Companies Act 2013 and the same provides under section 2(31J 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(c) 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: Page 16 of 27 Itr HARERA #- aJRUGRAI/ Complaint No.

1085 of 2024 (i) as an advance, accounted for in any manner whoLsoever, received in connectionwith consideration for on immovable properEt (ii) as an advance received ond as allowed by ony sectoral regulator or in occordance with directions of Centrol or Stote Govemment; 19. mment; 19.

So, keeping in view the above-mentioned provisions of the Act of 201,9 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 of booking or immediately thereafter and as agreed upon between them.

20.

The Government of India e 2)..

Banning of Unregulated Deposit 22.

Schemes Act,201,9 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 (4) ofthe BUDS Act 2019.

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

So, the amount paid by the complainant 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 Page 17 of 27 MHARERA ffi eunuenlvr Complaint No.

1085 of 2024 has been received by the developer from an allottee is an ongoing proiect as per section 3[1) ofthe Act of2016 then, the same would fall within the iurisdiction of the authority for giving the desired relief ro the complainant besides initiating penal proceedings.

The promoter is liable to paythat amount as agreed upon. reed upon.

Moreover, an agreement/MoU defines the builder-buyer relationship.

So, it can be said that the agreement for assured returns between the promoter and allottee arises out of the same relatipAship and is marked by the said memorandum of understandi.4$ff ,.-1t 23.

In the present complaint"the iithtla ."tr.n *"s payable as per clause 24.

25.

1.9 and clause 8 of the MoU.iiated 05.01.2017, which is reproduced below for the ready rtference?. . ' 19, "The Company shqll pay a monthly retum of Rs.1,91,100/- (Rupees One Lac Niney-One Thousqnd One Hundred )nly) on the totol omount deposited ti signing of this MOU, with effect Irom 05/01/2017.

Service tax if to be deposited sqme shall be paid extra by the company.

8, Thot the responsibility of paying assured returns to be pqid by the company shall cease on Notice oI Possestion," Thus, the assured retuln was payable @Rs.1,91,100/- per month w.e.f.

05.01.2017, tillthe notice ofpossession is issued to the complainant.

In light ofthe reasons mentioned above, the authority is ofthe view that as per the MoU dated 05.01.2017, it was obligation on part of the respondent to pay the assured return.

It is necessary to mention here that the respondent has failed to fulfil its obligation as agreed inter se both the parties in MoU dated 05.01.2017.

Further, it is to be noted that the occupation certificate for the project in question has already been obtained by the respondent on 14.08.2024, whereas the possession of the sub,ect unit has not been offered till date.

Accordingly, rhe liability of the respondent to pay assured return as per MoU is still continuing.

Page lB of 27 ffiHARERA HGURTJGRAI/ In the present complaint, the eomplainant intends to continue with the project and is seeking delay pg*',t$lg, charges as provided under the proviso to section tAttl of *r6'{ot Sai.

18(1) proviso reads as under.

Complaint No. plaint No.

1085 of2024 Hence, the respondent/promoter is liable to pay assured return to the complainant at the agreed rate i.e., @Rs.1,91,100/- per month from the date i.e., 05.07.2077 till notice of possession is issued to the complainant as per the memorandum ofunderstanding after deducting the amount already paid on account of assured return to the complainant.

G.II Delay Possession Charges: 26.

27. "Section 78: - Return of omount qnd compensation 18(1). lf the promoter foils to complete or is unqble to give possession of on opartment, plot or building, - Provided that where an allottze does not intend to withdrow from the project he shollbepgid,by thepromo@r, interertfor every month oldeloy, till the honding over ef the possesion, at such rote os moy be prescribed." Clause 5.2 and 5.4 ofthe buyer's agreement dated 05.01.2017 provides for handing over ofpossession and is reproduced below: - 5.2 "Thot the compaly shall lnmplete the construction of the soid building/complex within whieh the soid space is locqted within 4g months ftom the date of ele*tion ofthts ogreement or from the start of construction riuhichever $ .ldter ond apply for gront of completion/occupdnry celiilcote.

The compony on grsnt ol occupancy/completiqn certificate shall issue final letters to the ollottee who shall within 30 days, thereof remit all dues.

5,4 That the allottee hereby also grants qn qdditionol period of 6 months ofter the completion date as grace period to the company ofter the expiry ofthe aforesaid period." Due date ofpossession: As per clause 5.2 and clause 5.4 ofthe buyer's agreement dated 05.01".2017, the possession of the allotted unit was supposed to be offered within a stipulated timeframe of48 months from the date of execution of buyer's agreement or commencement of construction i.e., 15.12.2015 (as per order dated 05.0g.2019 in Page 19 of 27 ffiHARERA S-eunuennH,r Complaint No.

1085 of 2024 complaint bearing no. earing no.

CC /1328 /2019J whichever is later plus 6 months of grace period.

Therefore, the due date has been calculated as 48 months from the date of execution of buyer's agreement being later.

Further a grace period of 6 months is allowed to the respondent being unqualified.

Thus, the due date of possession come out to be 05 .o7 .202',1 _ 29.

Admissibility of delay possession charges at prescribed rate of interest The complainant is seking delay possession charges at riso to section 18 provides that where an 30. prescribed rate ofinterest.

Pro' allottee does not intend Lo withd the project, he shall be paid, by the promoter, interest for every month ofdelay, till the handing over of possession, at such rate as may be prescribed and it has been prescribed under rule 15 ofthe rules.

Rule 15 has been reproduced as under: - Rule 75.

Prescribed rqte ofinterest. [Proviso to section 72, section 7B ond sub-section (4) snd subsection {7) of section 791 (1) For the purpose of proviso to section 12; section 18; ond sub- sections (4) and (7) of section 19, the "interest at the rote prescribed" sholl be the State Bank of lndiq highest morginol cost ofiending rote +2a/a.: Provideclthotin cose the State Bankoflndia marginalcost of lendtng rote (MCLR) is not in use, it shall be replqced by such benchmark lending rates which the State Bank oI lndia may Jix from time to time for lending to the general public.

The legislature in its wisdom in the subordinate legislation under the provision ofrule 15 ofthe rules, has determined the prescribed rate of 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 31.

PaEe 20 of 27 ffiHARERA # aJRricRAM Complaint No.

1085 of 2024 on date i.e., 20.7t.2024 is 9.10y0. is 9.10y0.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2% i.e. ,lL.loo/o.

32.

The definition ofterm 'interest' as defined under section 2 [za) 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 rots ofin@rest poyoble by the promoter or the ollottee, as the cose may be.

Explonation. -For the pu (i) the rate of interest the allottee by the promoter, in case of defaule sholl be'qqual to the rote of in;erest which the promoter shall be liable to pay the qllottee, in case ofdefau16 (ii) the interest payoble by the promoter to the allottee sholl be Jiom the dote the Dromoter received the omount or nnv hotr rhprp^f ti ll promoter received the omount or any port thereof till the dste the amount or part thereof qnd interest thereon is refunded, and the interest payqble by the ollottee to the promoter sholl be from the dote the ollottee defoults in payment to the promoter tillthe date it is poid;" 33.

Therefore, interest on the delay pa id;" ryments from the complainant shall be charged at the prescribed rate i.e., 11l.lOo/o by the respondent/promoter which is the same as is being granted to the complainant in case of delay possession charges.

34.

On consideration of documents available on record and submissions made by the complainant and the respondent, the authority is satisfied that the respondent is in contravention of the provisions of the Act.

By virtue of clause 5.2 and clause 5.4 of the agreement dated 05,01.2017, the possession of the subject unit was to be delivered by 05.07.2021.

The occupation certificate of the project in question has been obtained by the respondent on 14.08.2024.

4.08.2024.

However, the respondent has failed to handover possession of the subject shop/unit till date of this order.

Accordingly, it is the failure of the respondent/promoter to fulfil its PaEe 21 of 27 ffiHARERA #GURucRAr,/ Complaint No. l0BS of 2024 obligations and responsibilities as per the agreement to hand over the possession within the stipulated period.

35.

The authority 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 palqbh to the allottee on account of a provision in the BBA or in ng reference of the BBA or an addendum to the BBA/M ent letter.

The rate at which assured return has been committed by the promoter is Rs.1,91,100/- per month.

If we compare this assured return with delayed possession charges payable under proviso to section 18 (1J of the Real Estate [Regulation and Development] Act,2016, the assured return is much better.

By way of assured return, the promoter has assured the allottee that she will be entitled for this specific amount from 05.01.2017 upto the notice of possession.

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

The purpose of delay possession charges after due date of possession is served on payment of assured return after due date of possession as the same is to safeguard the interest ofthe allottee as her money is continued to be used by the promoter even after the promised due date and in return, she is to be paid either the assured return or delay possession charges whichever is higher.

36.

Accordingly, the authority decides that in cases where assured return is reasonable and comparable with the delay possession charges under Section 18 and assured return is payable even after due date of Pa date of PaEe 22 of 27 MHARERA # eunuennu 37.

1085 of 2024 possession, the allo$ee shall be entitled to assured return or delayed possession charges, whichever is higher without preiudice to any other remedy including compensation.

In the present complainl as per clause 19 read with clause g of the MoU dated 05.01.2017, the amount on account of assured return was payable from 05.01.2017 upto the notice ofpossession.

The counsel for the respondent vide proceedings dated ZS.Oq.ZOZ has stated that the occupation certificate of the proiect in question has been obtained by the respondent on 14.08.2024. [lowever, possession ofthe subject unit has not been offered by the date.

Therefore, considering the facts of the present case, t is directed to pay assured return to the complainant at the agreed rate i.e., @Rs.1,91,100/_ per month from the date i.e.,05.01.2017 till notice ofpossession is issued to the complainant as per the memorandum of understanding after deducting the amount already paid on account oF assured return to the complainant.

I G.lll Direct the respondent to pay guaranteed return and lease rental as per MoU and to put the unit on lease.

38.

The complainant is seeking additional reliefs w.r.t guaranteed return, lease rental as well as putting the unit on lease under clause 9, clause 13 and clause 14 of the MoU dated OS.O1.ZO77 respectively.

The Authority observes that vide clause 14 of the MoU, the complainant_ allottee had duly authorised the respondent-promoter to put the said unit on lease.

Further, vide clause 9 of the MoU, it was agreed between the parties that the respondent-prontoter shall pay Rs.100/- per sq.ft. per month rent to the allottee from possession till first lease.

Furthermore, vide clause 13 of the MoU, the complainant-allottee had Page 23 of 27 ffiHARERA # enuennrtr Complaint No. plaint No.

IOBS of 2024 duly authorized the respondent-promoter to finalize the terms for Ieasing the said premises with any prospective lessee with minimum price ofRs.100/- per sq.ft.

Since, the occupation certificate ofthe project in quesflon has already been received by the respondent-promoter from the competent authority on 74.08.2024,the respondent-promoter is directed to put the unit allotted to the complainant on lease and to pay agreed rent to the complainant-allottee from possession till first lease as well to pay lease rental at the agreed rate as per the terms of the memorandum of und dated 05.01.2017.

G.IV Direct the respondent marcate the unit and offer possession of the unit in habitable condition after obtaining the occupation 39. certificate.

The Authority observes that as per Section 19[1) of the Act, the allottee is entitled to obtain information relating to sanctioned plans, layout plan along with specifications, approved by the competent authority and such other information as provided in the Act or rules and regulations made thereunder or the agreement for sale signed with the promoter.

Further, as per Section 11(a)[a) of the Act, 2016, the promoter is responsible for all obligations, responsibilities and functions under the provisions ofthe Act or rules and regulations made thereunder or the agreement for sale.

Therefore, in view of the above, the respondent/promoter is directed to provide specifications regarding unit in question to the complainant-allottee within a period of 1 month from the date of this order, 40.

Furthermore, as the occupation certificate for the project in question has already been obtained by the respondent on 14.08.2024, the respondent is directed to offer possession of the subject unit to the complainant within a period of 60 days from the date of this order.

Page24 of 27 ffiHARERA S-eunuenRHl Complaint No.

1085 of2024 G,V Direct the respondent to refund the pLC charges.

41. arges.

41.

The complainant has submitted that the respondent has charged Rs.9,55,500/- towards PLC without even providing the copy of the approved floor plan and layout plan showing the unit allotted to her is at preferential location.

The respondent has submitted that the pLC charges paid by the complainant against the subject unit were upon the request ofthe complainant against the preferential location and that to upon going through the plans and approvals as shown to her.

42.

After considering the do available on record as well as submissions made by the p determined that the respondent Section 19(1) of the Act, 2076, t1e allottee is entitled ro obtain information relating to sanctioned plans, layout plan along with specifications, app information as pr by the competent authority and such other n the Act or rules and regulations made thereunder or the agreement for sale signed with the promoter.

Thus, the Authority is of view that the respondent/promoter can charge amount on account of preferential location charges from the complainant only on furnishing details and proof to the complainant about PLC applicability on rhe unit opted by her within a period of one month failing which the respondent shall refund the amount so collected from the complainant on account of pLC.

H.

Directions ofthe authority 43.

Hence, the authority hereby passes this order and issues the following directions under section 37 of the Act to ensure compliance of Page 25 of 27 has miserably failed in disclosing the preferential location against which the preferential Iocation charges has been levied.

Further, as per HARERA ffiGUI?UGRAM obligations cast upon the promoter as per the function entrusted to the authority under section 34(0: i.

The respondent/promoter is directed to pay assured return to the complainant at the agreed rate i.e., @Rs.1.,91,100/- per month from the date i.e., 05.07. e., 05.07.2017 till notice of possession is issued to the complainant as per the memorandum of understanding after deducting the amount already paid on account ofassured return to the complainant. ii- The respondent/promoter is directed to pay the outstanding accrued assured return amount till date at the agreed rate within 90 days from the date ofthis order after adiustment ofoutstanding dues, if any, from the complainant and failing which that amount would be payable with interest @9.100/o p.a. till the date of actual realization. iii.

The respondent/promoter is directed to offer possession of the subject unit to the complainant within a period of 60 days from the date ofthis order.

The respondent/promoter shall not charge anything from the complainant which is not the part of the BBA/M0U dated 05.0t.20t7.

The complainant is directed to pay outstanding dues, if any, after adjustment of payable assured returns.

The respondent/promoter is directed to put the unit allotted to the complainant on }ease and to pay agreed rent to the complainant- allottee from possession till first lease as well to pay lease rental at the agreed rate as per the terms of the memorandum of understanding dated 05.01.2017.

Complaint No. l0AS ot 2024 1V.

PaEe 26 of 27 ffiHALEIA S-euRuennHr vll. v l.

Complaint No. l0BS of 2024 The respondent/promoter is directed to provide specifications regarding the unit in question to the complainant-allottee within a period of 1 month from the date ofthis order.

The respondent/promoter is directed to furnish details and proof to the complainant about PLC applicability on the unit opted by her within a period of one month failing which the respondent shall refund the amount so collected from the complainant on account of PLC.

Complaint stands disposed File be consigned to Haryana Real Dated:20.11.20 HARERA GURUGRAM 44.

45.

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