NITU RANJAN SINGH AND SANJAY RANJAN SINGH vs VATIKA LIMITED

w& HARERA GURUGRAM Complaint no.

281 ot2022 and, ors.

BEFORE THE HARYANA REAL ESTATE REGUUITORY AUTHORITY, GURUGRAM Date of decisioni | 04.O4.2025 CORAM: sh.i.

A.un krIrr".

Chairperson ORDER 1.

This order shall dispose ofall the 3 complaints titled as above filed before this authority in Form CRA under section 31 of the Real Estate (Regulation and DevelopmentJ Act,2016 [hereinafter referred as "the Act") read with rule 28 of the Haryana Real Estate (Regulation and Page 1 of 27 NAME OF THE BUILDER VATIKA LTD.

PRO'ECT NAME VATIKA INXT CITY CENTER s.

No.

Case No.

Case title APPEARANCE 1. cR/28112022 Saniay Dua Vatika Limited Siddharth Sharma, Adv. (Complainantl Ankur Berry, Adv.

IRespondentJ 2. cR/283/2022 Ved Parkash lolly and Anr.

V/s Vatika Limited Siddharth Sharma, Adv. (ComplainantJ Ankur Berry, Adv. (RespondentJ 3. cR/284/2022 Nitu Ranjan and Anr.

Vatika Limited Siddharth Sharma, Adv. (Complainant) Ankur Berry Adv. (Respondentl HARERA @ al lDt lcDAl\/ Complaint no.

281 of2022 at\d ors' 2.

Development) Rules,2017 (hereinafter referred as "the rules") for violation of section 11(a)(aJ of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se between parties.

The core issues emanating from them are similar in nature and the complainant(s) in the above referred matters are allottees ofthe prolects, namely, 'VATll(A INXT CITY CENTER'being developed by the same respondent promoters i.e., M/s Vatika Ltd.

The details ofthe complaints, reply to status, unit no., date ofagreement, & allotment, due date ofpossession, offer ofpossession and relief sought are given in the table below: Proiect Name and Location "INXT City Centre", Sector 83, Vatika India Next, 0urugram, Haryana.

Nature ofthe proiect Commercial complex Area of the proiect 10.72 acres DTCP License no.

122 of 2008 dated 14.06.2008 Valid up to 13.06. to 13.06.2018 RERA registered or not Not registered Possession clause 2 ofBBA The Developer will complete the construction of the said complex within three (3) yeors Jrom the date ol execution oI this agreement.

Further, the Allottee hos poid full sale considerotion on signing of this agreement, the Developer further undertakes to make poyment of Rs refer annexure-A (Rupees......) per sq. ft. ofsuper oreo per month by way of committed retum Ior the period of construction, uthich the Allottee duly accepts. ln the event oIo time overrun in completion of the soid complex the Developer shall continue Page 2 of 27 * HARER;', S-eunuennnl Complaint no.

281 of 2022 and ors. to pay to the Allottee the within mentioned assured return until the unit is olfered by the D eve lo p e r Io r possess ion.

Assured return clause The broad terms ofassured return are os under A) Till offer ofpossession: Rs.71.50/- per sq.fi.

B) After Completion of the building: Rs.

65/- per sq. fL You would be poid on ossured return w.e.f.

04.04.2011 on q monthly bosis belore the 1sth ofeoch calendor month.

Occupation certificate Not obtaincd Offer ofpossession Not offered Complaint no. cR/281/2022 cR/2a3/2022 cR/2a4/2022 Allotment letter w.r.t. allotment of unit in vatika trade centre 01.09.2010 [Page 16 of complaintl 12.r0.2070 [Page 17 of complaintl 72.0r.2017 [Page 17 of complaintl Date of builder buyer agreement allotment of unit in vatika trade centre 01.09.2010 [Page 18 of complaintl 12.10.2010 [Page 19 of complaintl 12.07.2071 [Page 79 of complaintl Date of addendum to the agreement (w.r.t assured returnl 01.09.2010 [Page 28 of complaintl 12.10.20r0 [Page 38 of complaintl 12.01.207r [Page 38 of complaintj Allocation of unit (ln the proiect 77.09.2013 77 .09.2073 25.04.2013 Page 3 of 27 I HARERA ffiGURUGRAM Vatika INXT City Centre) [Page 29 of complaintl lPage 51 A complaintl lPage 51 of complaintl Unit no. (ln the proiect Vatika INXT City Centre) 124, 1$ floor, block F admeasuring 500 sq. ft.

00 sq. ft. [Page 29 of comDlaintl 218,2.d floor, block F admeasuring 700 sq. ft. [Page 51 of complaintl 603, 6s floor, block F admeasuring 1250 sq. ft. [Page 51 of complaintl Due date of possession 01.09.2013 12.10.2013 72.01.2014 Total Sale Price r16,00,000/- < 44,70,000 /.

168,75,000/- Paid up amount as per BBA 116,00,000/- < 44,10,000/.

168,75,000/.

Assured return paid W.e.f.

01.09.2010 rill 30.09.2018 lPaee 39 of replvl W.e.i 72.10.2010 rill 30.09.2018 lPase 38 of replyl W.e.i 12.01.2011 till 30.09.2018 lPaee 5 of reolvl Assured return paid 125,22,000 /- lPage 39 of replyl 143,22,s00/- [Page 38 ofreply] < 75,27,5341- [Page 5 ofreply] 4.

The facts of all the complaints filed by the complainant/ allottee are also similar.

Out of the above-mentioned cases, the particulars of lead case CR/281/2022 titled as Sanjay Dua V/s Votiko Limited are being taken into consideration for determining the rights of the allottees qua assured return, delay possession charges, physical possession and conveyance deed.

A.

Unit and proiect related details 5.

The particulars of unit details, sale consideration, the amount paid by the complainant, date of proposed handing over the possession, date of buyer's agreement etc, have been detailed in the following tabular form: PaEe 4 of 27 Complaint no.

281 of 2022 and ors, ffi HARERTT *H eunuennu Complaint no.

281 of 2022 and ors.

CR/Z81/2022 titled as Sanjay Dua V/s Vatika Limited S.

Heads Information 1.

Name and location of the project "Vatika INXT City Centre" at Sector 83, Gurugram, Haryana 2.

Nature ofthe project Commercial complex 3.

Area ofthe project 10.72 acres 4.

DTCP License 122 0f 2008 dated 14.06.2008 valid upto 13.06.2018 5.

RERA registered/ not registered Not registered 6.

Allotment Ietter issued in favor of the complainant 01.09.2010 [Page 15 ofcomplaint] 7.

Old unit no.

1828, 18th floor admeasuring 400 sq. ft. in Vatika Trade Centre [As per allotment letter dated 01.09. ted 01.09.2010, Page 16 ofcomplaintl New unit shifted to 124, 7't floor, block F in INXT City Centre [Vide letter dated 1.7 .09.2013 "Allocation of Unit number", Page 29 of complaint] Date of execution of builder buyer's agreement 01.09.2 010 IPage 1B of complaint] 9.

Time period for completion of the project as per clause 2 of BBA dated 01.09.2010 The Developer will complete the construction of the said complex within three (3) years lrom the date of execution of this agreemenl Further, the Allottee has paid full sale consideration on signing of this Igreement, the Developer further undertakes to make payment of Rs refer annexure-A (Rupees......) per sq. ft of super area per month by way of Page S of 27 trHARERA S- eunuennvr Complaint no.

281 of 2022 and ors. committed return for the period of construction, which the Allottee duly sccepts.

In the event ofa time overrun in completion of the said complex the Developer shall continue to pdy to the Allottee the within mentioned assured return until the unit is offered by the Deve I o p er for p osse ssi o n.

IPage 20 ofcomplaint] 10.

Due date ofpossession 01.09.2013 11.

Addendum agreement in respect of assured return 01.09.2010 IPage 28 of complaint] 1.2.

Assured return clause as per addendum ANNEXURE A ADDENDUM TO THE AGREEMENT DATED 01.09.2010 The unithas been allotted to you with an assured monthly return of Rs.

65/- per sq. ft.

However, during the course of construction till such time the building in which your unit is situated is ready for possession you will be paid an additional return of Rs.

6.50/- per sq. ft.

Therefore, your return payable to you shall be as follows: This addendum forms an integral part of builder buyer Agreement dated 01.09.2010 A.

Till Completion ofthe building: Rs.

71.50/- per sq. ft.

B.

After Completion of the building: Rs.

You would be paid an assured return w.e.f.

01.09.2010 on a monthly basis before the 15th of each calendar month. dar month.

PaEe 6 o'i 27 ffiHARERA S- eunuennvr Complaint no.

281 of 2022 and, ors.

The obligation of the developer shall be to lease the premises of which your flat is part @ Rs.

In the eventuality the achieved return being higher or lower than Rs.65/- per sq. ft. the following would be payable.

1.

Ifthe rental is less then Rs.

65/- per sq. ft. then you shall be refunded @Rs.

120/- per sq. ft. (Rupees One Hundred Twenty only) for every Rs.

1/- by which achieved rental is less then Rs.

2.

If the achieved rental is higher than Rs.

65/- per sq. ft. then 500/0 of the increased rental shall accrue toyou free of any additional sale consideration.

However, you will be requested to pay additional sale consideration @Rs.

120/- per sq. ft. (Rupees One Hundred Twenty only) for every rupee of additional rental achieved in the case of balance 50% ofincreased rentals. [Page 28 ofcomplaintl 13.

Total consideration as per clause 1 of BBA dated 01.09.2 010 Rs.

16,00,000/- IPage 20 of complaint] 1_4.

Total amount paid by the complainant as per clause 2 of BBA dated 01.09.2010 Rs.

16,00,000/- IPage 20 of complaint] 15.

Reallocation of unit vide letter dated t7.09.20t3 IPage 29 ofcomplaint] 1.6.

Offer ofpossession to the complainant Not offered 77.

0ccupation certificate Not obtained Page 7 of 27 Complaint no.

281 of 2022 afi, ors.

6.

HARER,{ P*GURUGRANI 18.

Assured return amount paid by the respondent w.e.i 01.09.2010 till 30.09.2018 Rs.25,22,000 /- [Page 39 of reply] Facts ofthe complaint The complainant has made the following submissions in the complaint: a, That pursuant to advertisements, assurances, promises and representations made by the respondent in the brochure circulated by them about the timely completion of a project with perfect facilities and believing the same, the complainant booked a commercial unit bearing no.

1828 admeasuring 400 sq. ft. at Vatika Trade Center, Gurgaon. , Gurgaon.

It was assured by the respondent that the project Including the subject unit would be handed over possession by 30.09.2012. b.

That the booking of the commercial unit was confirmed to the complainant vide allotment letter dated 01.09.2010.

Thereafter, a builder buyer agreement was executed for the commercial unit no.

1B2B admeasuring 400 Sq.

Ft. (Super Area) at Vatika Trade Center, Gurgaon on 01.09.2010 by paying the entire sale consideration i,e., {16,00,000/- in advance for the said unit.

Clause 32 of the builder buyer agreement along with clause 1 & 2 of the addendum dated 01.09.2010 signed and executed behveen the parties are unfair, uniust and arbitrary in nature. c.

That as per the addendum agreement dated 01.09.2010, the respondent promised an assured return to the complainant from 01,09.2010 on a monthly basis before 15th of each month, wherein till the possession an amount @ 171.50 per sq. ft. and after Page B of 27 HARERA MGURUGRAI/ f.

Complaint no.

281 of 2022 and, ors. d. completion of the building @ t65/- per sq. ft. was to be paid to the complainant.

That a letter dated 17.09.2013 was sent by the respondent to the complainant stating "Allocation of the Unit Number INXT City Centre" vide which the respondent allotted new unit no.

124 on 1.' Floor of Block F at Vatika INXT City Centre, Gurugram.

That such act of the respondent was arbitrary and in contravention to various provisions of the BBA and other agreements.

Thereafter, the complainant made efforts to seek updates on the allotted unit and the status of the construction at the site, but due to gross negligence of the respondent, there was no satisfactory response from them.

After repeated follow-ups and not getting a positive response from the respondent, the complainant visited the construction site and were shocked to see that the construction has not been completed till date. till date.

Despite respondent promising the complainant to provide with world-class facilities, the complainant was shocked to see the incomplete construction of the project.

That the respondent violated the terms and conditions of builder buyer agreement by not executing the sale deed of the booked/allotted unit, not handing over the physical possession of the booked/allotted unit and not providing with the payments on account of assured return as per clause 1 and 2 of the builder buyer agreement and addendum dated 01.09.2010. e.

Page 9 of 27 tr HARERA S-eunuennt,,r Complaint no.

281 of 2022 and ors. h.

That till date the respondent has failed to register the project with the Authority and has violated the provisions of section 3 and 4 of the Act and are liable to be punished under section 59 ofthe AcL That it is clear from the intentions of the respondent that they are not inclined to complete the said project and have failed to acknowledge the terms and conditions mentioned in the clauses ofthe agreement.

That at the time of execution of the agreement dated 01.09.2010, the respondent had assured the complainant that they have taken necessary approvals from the competent authorities to commence the construction work of the proiect.

However, till date the construction remains incomplete.

Despite having paid the entire sale consideration amount in advance i-e., 116,00,000/- to the respondent, there is a considerable delay of 11 years and the respondent has failed to hand over the possession to the complainant.

The complainant is left with no other option but to file the present complaint.

Relief sought by the complainant: The complainant has sought following relieffsJ: a.

Direct the respondent to make payment on account of the assured return in terms ofthe addendum. b.

Direct the respondent to pay delay penalty charges with interest as per the Act. r the Act.

Direct the respondent to handover the physical possession of the subiect commercial unit at Vatika INXT City Centre, Gurugram.

Direct the respondent to strike down the impugn clauses under BBA and addendum.

C.

7. c. d.

Page lO of 27 HARERA P*GURUGRAIU 8.

D.

9.

281 of 2022 and, ors. e.

Direct the respondent to execute sale deed of the above-mentioned booked unit in favour of the complainant. f.

Grant the cost oflitigation of Rs.

1,10,000/-.

On the date of hearing; the authority explained to the respondent /promoters about the contraventions as alleged to have been committed in relation to section 11(a) (a) ofthe Act to plead guilty or not to plead guilty.

Reply by the respondent The respondent contested the complaint on the following grounds: a.

That the present complaint is not maintainable or tenable in the eyes of law.

The complainant has misdirected himself in filing the above captioned complaint before this Ld.

Authority as the reliefs being claimed by the complainant cannot be said to fall within the realm of iurisdiction of this Ld.

Authority.

It is humbly submitted that upon the enactment of the Banning of Unregulated Deposit Schemes Act, 2019, Ihereinafter referred as BUDS ActJ the'Assured Return'and/ or any "Committed Returns" on the deposit schemes have been banned.

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

Thus, the 'Assured Return Scheme' proposed and floated by the respondent has become infructuous due to operation of law, thus, the relief prayed in the present complaint cannot survive due to operation of law. b.

That the complainant enjoyed the monthly returns till September 2018.

The complaint has been filed by the complainant just to harass Page ll of 27 HARERA @ at tDt tcDAt\/ c.

281 of 2022 and ors. d. the respondent and to gain the unjust enrichment. nrichment.

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

That the present complaint is not maintainable before the Hon'ble Authority as it is apparent from the prayers sought in the complaint.

Further it is crystal clear from reading the complaint that the complainant is not an'Allottee', but purely is an'lnvestor', who is only seeking physical possession/delay possession charges from the respondent, by way of present petition, which is not maintainable as the unit is not meant for personal use rather it is meant for earning rental income.

The commercial unit of the complainant is not meant for physical possession as the said unit is only meant for leasing the said commercial space for earning rental income.

Furthermore, as per clause 3 2.1(d) of the agreement, the said commercial space shall be deemed to be legally possessed by the complainant.

Hence, the commercial space booked by the complainant is not meant for physical possession.

Before buying the property, the complainant was aware of the status of the project and the fact that the commercial unit was only intended for lease and never for physical possession.

That further in the matter of Bharam Singh & Ors. vs.

Venetian LDI: Projects LLP (Complaint No.

175 of 2018), the Hon'ble Real Estate Page 12 of 27 HARERA (s ct tDt taDAl\/ Complaint no.

281 of 2022 and ors. e.

Regulatory Authority, Gurugram had decided not to entertain any matter related to assured returns.

That the complainant entered into an agreement i.e., builder buyers' agreement dated 01.09.2010 with respondent company thereafter owing to the name, good will and reputation of the respondent company. t company.

Further, the construction of unit was completed and the same was duly informed to the complainant vide letter dated 27.03.2078.

That due to external circumstance which were not in control of the respondent, minor timeline alterations occurred in completion ofthe project.

That even though the respondent suffered from setback due to external circumstances, yet the respondent managed to complete the construction.

That the respondent company was facing umpteen roadblocks in construction and development work in proiects comprised in township 'Vatika India Next' beyond the control of the respondent such as the follows: .

Construction, laying down and/ or re-routing of Chainsa- Gurgaon-fhaijar-Hissar Gos Pipeline by Gas Authority of India Limited (Gail) for supplying natural gas and the consequent litigation for the same, due to which the company was forced to change its building plans, proiect drawings, green areas, laying down of the connecting roads and complete lay-out of the Township, including that of independent floors. .

Non acquisition of land by Haryana Urban Development Authority (HUDA) to lay down of Sector roads 75 mtr. and 60 mtr. wide and the consequent litigation for the same, the issue is even yet not settled completely. t Labour issue, disruptions/delays in supply of stone aggregate and sand due to court orders oI the courts, unusually heavy Page 13 of 27 * HARER'i S* eunuennvr Complaint no.

281 of 2022 and ors, rains, delay in supply of cement and steel, declaration of curgaon as 'Notifiied Area' for the purpose of Ground water. .

Delay in removal/ re-routing of defunct High-Tension Line of 66IUA in Licenses Land, despite deposition of charges/ fee with HVBPNL, Haryana. .

Total and partial ban on construction due to the directives issued by the National Green Tribunal during various times since 20t5. ince 20t5. r The National Green Tribunal INCT)/Environment Pollution Control Authority (EPCA) issued directives and measures [GRAP) to counter the deterioration in Air quality in Delhi-NCR region especially during the winter months over the last few years.

Among various measures NGT, EPCA, HSPCB and Hon'ble Supreme Court imposed a complete ban on construction activities for a total of 70 days over various periods from November 2015 to December 2019. .

The several stretches of total and partial construction restrtc ons have led to significant loss of productivity in construction of the proiect.

The respondent also suffered from demobilization ofthe labour working on the projects, and it took several additional weeks to resume the construction activities with the required momentum.

That the complainant is attempting to seek an advantage of the slowdown in the real estate sector, and it is apparent from the facts of the present case t}lat the main purpose of the present complaint is to harass the respondent by engaging and igniting frivolous issues with ulterior motives to pressurize the respondent company.

It is pertinent to submit that the complainant was sent the letter dated 27.03.2018 informing of the completion of construction.

Thus, the present complaint is without any basis and no cause of action has arisen till date in favour of the complainant and against the respondent and hence, the complaint deserves to be dismissed.

Page 14 of 27 HARERA S*GURUGRANI Complaint no.

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

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

Hence, the complaint is liable to be dismissed with imposition of exemplary cost for wasting the precious time and efforts of this Hon'ble Authority.

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

10.

Written submissions filed by the respondent and complainant is also taken on record and considered by the authority while adjudicating upon the relief sought by the complainant.

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

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of those undisputed documents and submissions made by the parties.

E. lurisdiction ofthe authority 11.

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

E.

I Territorial iurisdiction 12.

As per notification no.

1/921201,7 -I,TCP dated 14.72.2017 issued by Town and Country Planning Department, Haryana, the jurisdiction of Haryana Real Estate Regulatory Authority, Gurugram shall be entire Gurugram district for all purposes.

In the present case, the project in question is situated within the planning area of Gurugram district.

Page lS of 27 Complaint no.

13.

74.

F.

15.

HARERA GB cr tDr rcDA[/ Therefore, this authority has complete territorial iurisdiction to deal with the present complaint.

II Subiect-matter iurisdiction Section 11(4J [a) of the Act, 2016 provides that the promoter shall be responsible to the allottees as per agreement [or sale.

Section 11(4) (a) is reproduced as hereunder: "Section 77(4) (a) Be responsible for all obligations, responsibilities ond functions under the provisions ofthis Actor the rules and regulotions mqde thereunder or to the ollottees os per the agreement for sale, or to the associotion ofallottees, as the case may be, till the conveyonce of all the opartments, plots or buildings, qs the case moy be, to the ollottees, or the common aress to the associotion of ollottees or the comrytent authorily, as the cose moy be. se moy be.

Section 34-Functions of the Authoriay: 34A to ensure cbmplionce of the obligations q)st upon the promotert the ollottees ond the reol estate ogents under this Act qnd the rules and r eg u lations ma de thereunde r." So, in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non-compliance ofobligations by the promoter leaving aside compensation which is to be decided by the adiudicating officer if pursued by the complainant(s) at a later stage.

Findings on the obiections raised by the respondent F.l, Obiection regarding maintainability of complaint on account of complainant bein8 investor.

The respondent took a stand that the complainant is investor and not consumer and therefore, the complainant is not entitled to the protection ofthe Act and thereby not entitled to file the complaint under section 31 of the Act.

However, it is pertinent to note that any aggrieved person can file a complaint against the promoter if he contravenes or violates any provisions of the Act or rules or regulations made thereunder.

Upon PaBe 16 of 27 HARERA @ ct iDt laDA[/ careful perusal of all the terms and conditio0s of the allotment Ietter and BBA, it is revealed that the complainant is buyer, and has paid a considerable amount to the respondent-promoter towards purchase of unit in its proiect.

At this stage, it is important to stress upon the definition of term allottee under the Act, the same is reproduced below for ready reference: "2(d) "allottee" in relotion to o reol estate project meons the person to whom q plot, apartmentor building, os the case moy be, hasbeen ollotted, sold (whether os freehold or leosehold) or otherwise tronsferred by the promoter, and includes the person who subsequently acquires the sqid ollotment through sale, tronsfer or otherwise but does not include o person to whom such plot, qportment or building, os the case may be, is given on rent" ln view of the above-mentioned defin oned definition of "allottee" as well as all the terms and conditions of the buyer's agreement executed betlveen promoter and complainant, it is clear that the complainant is allottee as the subject unit was allotted to him by the promoter upon payment of the entire sale consideration.

The concept of investor is not defined or referred to in the Act.

As per the definition given under section 2 of the Act, there will be "promoter" and "allottee" and there cannot be a party having a status of "investor".

Thus, the contention of the promoter that the allottee being investor is not entitled to protection of this Act stands rejected.

Findings on the relief sought by the complainant G.l.

Assured return.

The complainant is seeking unpaid assured returns on monthly basis as per the addendum agreement at the rates mentioned therein.

It is pleaded that the respondent has not complied with the terms and conditions of the said addendum agreement- Though for some time, the amount of assured returns was paid but later on, the respondent refused Page 17 of 27 Complaint no.

76. t7.

G. trHARERA &eunuennv Complaint no.

281 of 2022 and ors. to pay the same by taking a plea that the same is not payable in view of enactment of the Banning of Unregulated Deposit Schemes Act, 2019 fhereinafter referred to as the Act of 2019), citing earlier decision of the authority (Brhimjeet & Anr.

Vs.

M/s Landmark Apartments Pvt.

Ltd., complaint no 141 of 2018) whereby reliefofassured return was declined by the authority.

The authority has rejected the aforesaid objections raised by the respondent in CR/8001/2022 titled as Gaurav Kaushik and anr.

Votika Ltd, wherein the authority has held that when payment of assured returns is part and parcel of builder buyer's agreement (maybe there is a clause in that document or by way of addendum, memorandum of understanding or terms and conditions of the allotment of a unit), then the builder is liable to pay that amount as agreed upon an ed upon and the Act of 2019 does not create a bar for payment of assured returns even after coming into operation as the payments made in this regard are protected as per section 2(4)0)(iii) of the Act of 2019.

Thus, the plea advanced by the respondent is not sustainable in view of the aforesaid reasoning and case cited above.

18.

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 complainant-allottee has a right to approach the authority for redressal of his grievances by way of filing a complaint.

Page 78 of 27 Complaint no.

281 ot 2022 afi, ors.

19.

20.

HARERA *.

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

Moreover, an agreement defines the builder/buyer relationship.

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

It is not disputed that the respondent is a real estate developer, and it had not obtained registration under the Act of 2016 for the project in question.

However, the project in which the advance has been received by the developer from the allottee is an ongoing project as per section 3 (11 of the Act of 2016 and, the same would fall within the jurisdicrion of the authority for giving the desired relief to the complainant besides initiating penal proceedings.

So, the amount paid by the complainant to the builder is a regulated deposit accepted by the later from the former against the immovable property to be transferred to the allottee later on. later on. ln view ofthe above, the respondent is liable to pay assured return to the complainant-allottee in terms of the addendum agreement dated 01.09_2010.

G.ll.

Delayed possession charges In the present complaint, the complainant intends to continue with the proiect and is seeking possession of the subiect unit and delay possession charges as provided under the provisions of section 1B(1) of the Act which reads as under: "Section 1B: - Return of amount ond compensation 18(1). lfthe promoter fqils to complete or is unoble to give possession oJ on apartment, plot, or building, - 27.

PaEe 19 of 27 Complaint no.

22.

23.

HARERA P*GURUGRAI,I Provided that where on ollottee does not intend to withdrow from the project, he sholl be poid, by the promoteL interest for every month ofdelay, till the handing over ofthe possession, ot such rote os may be prescribed' A builder buyer agreement executed between the parties and the due date of completion of the project is calculated as per clause 2 of BBA i.e., 3 years from the date ofexecution ofthis agreement.

The relevant clause is reproduced below: "The Developer will complete the constuction of the soid conplex within three (3) years from the dqte oI execution of this agreemenL Further, the Allottee hos poid Iull sale considerotion on signing of this agreement, the Developer lurther undertakes to moke poymentof Rs refer qnnexure-A (Rupees......) per sq. ft. ol super areo W month by woy ol committed return for the period ofconstruction, which the Allowe duly occep*. ln the event of o time overrun in completion of the soid complex the Developer sholl continue to poy to the Alloftee the within mentioned ossured return until the unit is oflered by the Developer for possession." Admissibility of delay possession charges at prescribed rate of interesh The complainant is seehng delay possession charges. n charges.

Proviso to section 18 provides that where an allottee does not intend to withdraw from the proiect, he shall be paid, by the promoter, interest for every month ofdelay, till the handing over ofpossession, 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.

Prescribe.l mE oI interest- [Proviso to section 72, section 18 ond sub-seaion (1) and subsedion (7) oI section 191 For the purpose of proviso to section 12; section 18; and sub-sections (4) ond (7) of section 19, the "interest ot the rate prescribed" shall be the Stote Bankoflndio highest morginal cost of lending rate +20k.: Provided that in case the State Bonk oflndia marginol cost ol lending rote (MCLR) is not in use, it shall be reploced by such benchmork lending rotes which the Stote Bonk ollndia moy frx ftom time to time for lending to the general public." 24.

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

PaEe 20 of 27 ffHARERA S- eunueRnvr Complaint no.

Consequently, as per website of the State Bank of India i.e., https:/./sbi.co.in. the marginal cost oflending rate (in short, MCLR) as on date i.e., 04.04.2025 is 9.10%.

Accordingly, the prescribed rate ofinterest will be marginal cost of lending rate +2o/o i.e.,71.100/0.

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.

The construction of the project was to be completed by 01.09.2013.

However now, the proposition before it is as to whether the allottee who is getting/entitled for assured return even after expiry of due date of possession, can claim 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 return is payable to the allottees on account of provisions in the addendum agreement dated 01.09.2010.

The assured return in this case is payable as per "addendum agreement" wherein the promoter had agreed to pay to the complainant-allottee {71.50/- per sq. ft. on monthly basis till offer of possession and {65/- per sq. ft. on monthly basis after the completion of the building. [f we compare this assured return with delayed possession charges payable under proviso to section 18(1J ofthe Act,2076, the assured return is much better as is encapsulated in the following table for all the complaints: Complaint no. cR/28t/2022 cR/283 /2022 cR/2A4/2022 25. zo.

27.

Page 2l of 27 HARERA P* GURUGRAIvI Assured return payable per month as per addendum agreement r 3s,7s0l- rs0,050/- <89,357 / - Delay possession charges payable per month as per the RERA Act 114,800/- 140,792 /- <63,594 / - By way of assured return, the promoter has promised that the allottee would be entitled for the specific amount of assured return till the said unit is put on lease and thereafter he shall be entitled for lease rental as agreed.

The purpose of delayed possession charges under section 18 of the Act after due date of completion of project is served on payment of assured return.

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

Accordingly, the authority decides that in cases where assured return is reasonable and comparable with the delayed possession charges under section 18 and assured return is payable even after due date of possession, then the allottees shall be entitled to assured return or delayed possession charges, whichever is higherwithout preiudice to any other remedy including compensation. pensation.

On consideration of the documents available on the record and submissions made by the parties, the complainant has sought the amount of unpaid amount of assured return as per the terms of BBA and addendum executed thereto along with interest on such unpaid assured return.

As per addendum agreement dated 01.09.2010, the promoter had agreed to pay to the complainant-allottee {71.50/- per sq. ft. on monthly basis till offer of possession and {65/- per sq. ft. on monthly basis after Complaint no.

281 ot 2022 arrd ors.

28.

29.

30.

PaEe 22 of 27 I Complaint no.

31.

HARERA P*GURUGRAI,I the completion of the building.

It is matter of record that the amount of assured return was paid by the respondent promoter till September 2018 but later on, the respondent refused to pay the same by taking a plea of enactment of Act of 2019.

But the Act of 2019 does not create a bar for payment of assured returns even after coming into operation and the payments made in this regard are protected as per section 2(4)[iiiJ ofthe above-mentioned Act.

Admittedly, the respondent has paid an amount of <25,22,000/- to the complainant as assured return till September 2018.

Therefore, considering the facts of the present case, the respondent is directed to pay the amount ofassured return atthe agreed rate i.e., @ 71.50/- per sq. ft. per month from the date the payment of assured return has not been paid i.e., 01.10.2018 till the completion of the project after obtaining occupation certificate from the competent authority and thereafter, {65/- per sq. ft. per month after the completion of the building till the date the said unit is put on lease or for the first 36 months after the completion of the project, whichever is earlier in terms of Addendum read with clause 32.2 oi the BBA. i the BBA.

Accordingly, the respondent is directed to pay the outstanding accrued assured return amount till date at the agreed rate within 90 days from the date of this order after ad,ustment of outstanding dues, if any, from the complainant and failing which that amount would be payable with interest @ 9.10% p.a. till the date of actual realization.

G.lll.

Possession G.lV.

To direct the respondent to strike down the impugn clauses under BBA and addendum Page 23 of 27 Complaint no.

281 of 2022 and, ors, HARERA ffi GURUGRAIV] With respect to the aforesaid reliefs, the authority observes that there is no clause in the entire BBA/Addendum which obligates the respondent to handover physical possession of the allotted unit to the complainant.

Furthermore, as per clause 32 of the BBA and addendum to the BBA, it was mutually agreed between the parties that on completion of the project, the respondent-developer shall put the said unit on lease and the unit shall be deemed to be legally possessed by the complainant.

The authority further observes that the complainant has failed to put forth any document to show that the said builder buyer agreement and Addendum thereto was executed under coercion.

Also, no objection/protest whatsoever was made by the complainant at any point of time since the execution of the BBA/Addendum.

Accordingly, in view of clause 32 of the BBA, handing over the physical possession was never the intent ofthe respondent rather the unit was to be leased out.

G.V.

Conveyance deed With respect to the conveyance deed, clause 8 of the BBA provides that the respondent shall sell the said unit to the allottee by executing and registering the conveyance deed and also do such other acts/deeds as may be necessary for confirming upon the allottee a marketable title to the said unit fiee from all encumbrances.

Section 17[1) of the Act deals with duties of promoter to get the conveyance deed executed and the same is reproduced below: "77.

Transkr of title.- (1). tle.- (1).

The promoter sholl execute o registered conveyonce deed in lavour of the allottee olong with the undivided proportionote title in the common oreos to the ossociation ofthe allottees or the competent outhority, os the cose may be, ond hond over the physical possession ofthe plot, qpartment of building, os the cose moy be, to the allottees and the common areos to Page24 of 27 34. ..t 5.

281 of2022 and ors.

36.

37.

HARERA P* GURUGRAI\,,] the qssociotion of the allottees or the competent outhority, os the case moy be, in o reol estate projec| qnd the other title documents pertqining thereto within specified pe od as per sanctioned plons qs provided under the locol lcws: Provided thot, in the absence of ony local low, conveyance deed in fovour of the allottee or the ossociotion ofthe allottees or the competent authority, as the cose may be, under this section sholl be carried out by the promoter within three months from dqte ofissue ofoccuponcy certificate." The authority observes that OC in respect ofthe proiect where the subject unit is situated has not been obtained by the respondent promoter till date.

As on date, conveyance deed cannot be executed in respect of the subiect unit, however, the respondeht promoter is contractually and Iegally obligated to execute the conveyance deed upon receipt of the occupation certificate/completion certificate from the competent authority.

In view ofabove, the respondent shall execute the conveyance deed ofthe allotted unit within 3 months after the receipt of the 0C from the concerned authority and upon payment of requisite stamp duty by the complainant as per norms of the state government.

G.Vl.

Litigation cost-11,00,000/-.

In the above-mentioned reliel the complainant sought the compensation and Hon'ble Supreme Court of lndia in case titled as M/s Newtech Promoters and Developers PvL Ltd. y/s State of UP & Ors.

UP & Ors. (2021- 2022(1) RCR(C) 357), has held that an allottee is entitled to claim compensation under sections 12,14,18 and section 19 which is to be decided by the adjudicating officer as per section 71 and the quantum of compensation & litigation expense shall be adjudged by the adjudicating officer having due regard to the factors mentioned in section 72.

The adiudicating officer has exclusive jurisdiction to deal with the complaints in respect of compensation & legal expenses.

Therefore, for claiming PaEe 25 of 27 HARERA S*GURUGRAI/ H.

38.

281 of 2022 and ors. compensation under sections 72,74, 7A and section 19 of the Act, the complainant may file a separate complaint before Adjudicating Officer under section 31 read with sectidn 71 ofthe Act and rule 29 ofthe rules.

Directions of the authority Hence, the authority hereby passes this order and issues the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority under section 34(0: a.

The respondent is directed to pay the amount of assured return at the agreed rate i.e., @ 71.50/- per sq. ft. per month from the date the payment ofassured return has not been paid i.e.,01.10.2018 till the completion of the project after obtaining occupation certificate from the competent authority and thereafter, 165/- per sq. ft. per month after the completion of the building till the date the said unit is put on lease or for the first 36 months after the completion ofthe project, whichever is earlier in terms ofAddendum read with clause 32.2 of the BBA. b.

The respondent is directed to pay the outstanding accrued assured return amount till date at the agreed rate within 90 days from the date of this order after adiustment of outstanding dues, if any, from the complainant and failing which that amount would be payable with interest @ 9.10% p.a. till the date of actual realization. c. zation. c.

The respondent is directed to execute the conveyance deed of the allotted unit within the 3 months after the receipt ofthe 0C from the concerned authority and upon payment of requisite stamp duty by the complainant as per norms of the state government.

Page 26 of 27 SHARERI S*eunuenetil Complaint no.

281 of 2022 and ors. d.

The respondent shall not charge anything from the complainant which is not,the part of the builder buyer agreement. e.

A period of 90 days is given to the respondent to comply with the directions given in this order and failing which legal consequences would follow.

39.

This decision shall mutatis mutandis apply to cases mentioned in para 3 of this order wherein details of rate of assured return, area of the unit, received by the complainant is mentioned in each of the complaints.

40.

The complaints as well as applications, ifany, stand disposed of.

41.

True certified copies ofthis order be placed on the case file ofeach matter.

42.

Files be consigned to registry. $,,*r* amount paid by the comp Dated:04.04.2025 H fArun Kumar) Chairman Haryana Real Estate Regulatory Authority, Gurugram PaEe 27 of 27