PRATIBHA KHAN AFZAL AHMED KHAN vs VATIKA LIMITED

*HARERA S-arnLnnar,,r NAA,IE OF THE BUILDER cR/7722 /2022 ComElaint no.353 of2022 a.d BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM oate oraeitston T o[ol.202s I VA IKA L']'D, PROIECT NAME VATIKA INXTCITY CENTER cR/153/2u2?

Ceera Naryrr & Rrnka Nalyar - cR/tr23/2022 cR/t124/2022 Pratibha Khan &Aftal Ahmed Khan SiddhaDt Sham4 Adv. [complainant] (Responden0 Siddbant Sharma, Adv. [Comp]ainantl Siddhant Sha.ma, Adv. (complainantl Siddha$t Sharma, Adv. [Complainant] (R€sponden0 Pratibha Khan &4fta1 Ahmed Khan Pratibha Khan &Atzal Ahmed Khan COR-AM: Chairperson l 2 3 t ORDER 1.

This order shall dispose oi aU the4conplai.ts titled asabove fited betore this authority in Form CRA under section 31 oi the Real Estate [Regulation and Development) Act, 2016 (hereinalter reierred as ,,rhe Act"l read with rule 28 oi the Haryana Reat Estate [Regulation and Development) Rules, 2017 (hereinaiter reaerred as "the rules'l tor vrolation of sectron 11(4)[a) of the Acr wherein it is inter a]ia prescribed that the promoter shall be responsible ior all irs obtigations, responsibilities and iunctions to the allottees as pcr the agreemeni tor salc executed interse between parties.

2.

Thc core issues emanating from them are simrlar in nature and the conrplainantG) in $e above referred marters are allottees ofrhe proJects. namely, VATIKA INXT CITY CENTER' being developed by the same respondent promorersi.e., M/s Vatika Ltd.

3.

The details olthe complaints, replytostatus, unit no., date ofagreenrent, & allotment, due date of possession, total sale co.side.arion, paid up amount, offer ofpossession and reliefsoughrare given in the table below: P.oiect Nrmcand Location Complaintno.

353of 2022and '|NXTCityCe.t.e",SectorS3 Vanka lndia Nexi, - HARERA GURUGRAN/ RERA register.dor not 122of 2008dated 14.06.2008 Validupto13.06.2018 The Developer will complere the consriudLon or the said complcx within three (3) years from th€ dat. .I ere.uiion of this Poss. this Poss.ssionclause 2 of BBA gHARERA _,!S- eLtnrr,nm,r Complaintno.

353ot2022and The broad temtof $surcd rcturn dreosundet A) Titl olIer oI pose$ion: Rs 71.soy'persq fL D) After Cohpletion of the buitding: Rs.6s/- per fou would be paid on assuted retuh w.e.l.

44.04.2011 on o nontht! bosis before the l Sth of Attured rcturnclause *H #-c ARERA URUGRA]V It has been Conplaintno, 353of 2O22and decided totreatthe statut0ry said complaints as obligations on an_ application for non, the part of the l,r.rt5o/ - l1i1,3T..llf'l 4. l) db 6.

HARERA GURUGRA[,4 SNo Conplarnt no.353 o12022 and 5. promoter/respondent in te.ms of section 34(0 ol the Act which mandates the authorityto ensu.e compliance olthe obligations cast upon the promote.s, the allottees and the realestate agents under rhe Act, the rules and the regulations made thereunder. 'fhe f.rcts of all the complajnts liled by the complainants/ allottees are also similar.

Out of the above-nrentioned cases, the particulars ol lead case CR/353/2022 titled as Geeto Naryar & Ritika Nalyar V/s Vatika Limited arc beir'g taken into consideration lor determining the rights oi the allottees qua assured return, delay possession charges. physical possession and conveyance deed.

Unit and proiect related details The particulars ofunit details, sale consideration, the amount paid by thc complainants, date ol proposed handing over the possession. datc ot buyer's agreement etc. have been detailed in the followine tabular Iornr CR/3 53/202 2 ti ed as Ceeta Nawar & Ritiko Nawor v/s 2 Name and location of the 122 0f2008 darpd r4062008 ryatika l.xt City Centef' at Sector 83, reg,srered l 5 *HARERA S-cunuennM t0 complaintno.

353of 2022and Date of builder Allotment letter in favour of original allottee w.Lt. allotment of unit in Vatika completion oi the project as per dause 2 ofBBA Due date ofcompleEon of Date of addendum to the agreement w.r.t assured 17.08.2011 IPase 17 ofcomplaint] 17.08. nt] 17.08.2011 lPage 19 ofcomplaintl The Developer will conplete the consttuctionoIthe so1d contpIex wnh 1 three (3) yeots ton the dote oJ e*curion ol thx ogreenent.

Furth.t. the Allottee hos poi,) lull sole co\iderdtion on signing ol thts agreement, the Developer lu het undertokes to noke polnent of Rs reler onne\ure-A (R!pees.....) pet stt. f ol super dreo per nonth by w1y ol comni\ed return lor the penad of consttuction, which the Allottee dulf accept;- ln the event ol o tine ave un in conpletioh ol the satd ca,nplex thc Developer tholl continue to pa! to thc Allottee the wnhin nenuane,l o$urcd return until the uhit is olkred by the Deve lo pe r fo. pos se s s io n lPaBe 22 ofcomplaintl 17.08.2011 lPaee 38 ofcomplaintl ANNEXUREA ADDENDUM TO THE AGREEM ENT DATED 17.08,2011 has been allotted toyou with an honthly.e!urn oiRs 557: pe.sq.

11 Assured return claDse B HARERA GI]RUGRAN/ Conplaintno.

353of 2022and fL However during the course of construction till such time theb!ildingin whi.h your unit is situated is ready lor poss€sslon you wlll b€ pard an addrnonal return of Rs, 6.50/- per sq. ft.

Therelore, your return payable to you shall be as This addendum lorms an integ.al part oI builder buyer Agreement dated 17.08,2011 Till compenon of lhe burldin8 Rs. r Complerron ot the burldrng Rs pad anassured return w.e L a monthly bars before rhe th€ developer shall b€ to r sq. fL lntheeventuality h being higher o. lower per sq. fr the follow'ns rental is le$ rh€n R5.65/- per sq. lbe reruided @Rs.120/. tal is lessthen Rs.6sl pe.sq.it Irheachieved renlalis hi8her than Rs.

65/- per sq. ft. then 50% ofthe inc.eased rertal shall accrue to you free of any addnional s.le consideration. llowever, you will be request€d to pay additional sale considemrion @Rs.

120l'per sq. ft. (Rupees one Hundred Trenty only) for wery rupee oI additional rentzl achieved in the case ol balan.e 50% of increased GURU e& sl ru rs HARERA GURUGRAN/ Complaint no.353 of2022 and B.

7. and B.

7.

Facts ofthe complalht The complainants have submitted as under: That pursuant to advertisemenh, assurances, promises and representations made bythe respondent in the brochure circulated by them about the timely compl€tion of the project with perfect facilities and believing the same, the original allottee i.e., Archana Culati booked a commercial unit at Vatika Trade Center, Curgaon.lt Allocation of unit in INXT CityCentre 25.04.2073 [in favour of oricinal allottee] lPage 39 of.omplaintl ll EndorsemeDt of unit in 16.09.2013 lPaee 46 of, complaintl 14 527,5 tPase n nootblock Fadmeasunn8 500 15.

Date of addenduh to the a8rccment executed wirh original allottee w.r.t.

Vatika INXTC'tyCentre lPa8e 47 orcomlrar,ll 16 Date of addendum agreemenr execured with complainants w.r.t. deletion of assurcd retur. clause 06.08.2019 lPaee 50 ol.omplaintl Totrl Sale ConsideratioD <2r,93,7 50 /- lPase 22 olconrplamtl lti Paid up amount as per BBA <27,93,7 50 l- lPa8e ZZ olcomplamtl 19 Assured r.turn paid till lPaEe 39 ofreplyl 20.

427 ,79,L5t /- lPage 39 olreplyl gHARERA # eLrnuc+m,l was assured by the respondenr rhat the project includins rhe subiect unit would be handed ovcr possession by 30.09.2012. b.

That the booking oi the commercial unit was confi.med to the original allottee vide allotment letter dated 17.08.2011.

Th€reatter a builder buyer agreemen t was executed lor the conrme.cialunit no.

2s3A admeasuring 500 Sq.

Ft lsup€r A.ea] at vatika Trade Center, C urgaon on 17.0 8.20 1 I by paying rh e entire sale cons ideration i.e., i21,93,750/- in advance forthesaid unir Clause 32 ofthe agreemenr and clause 1 and 2 ol rhe addendum dated 17.08.2011 signed and executed between rhe parties are unfair, unjust and arbirrary jn c.

That furthermore as per the addendum agreement dated 17.08.2011, the respondent promised an assured return to ttre original allottee from 17.08.2011 on a monthly basis before 15,, of each month,whereln till the possession an amount @ t71.S0 persq. ft. persq. ft. and afte. completion olthe building @ i65/ per sq. feet was to be paid to the allottee. d.

That a le$er dated 25.04.2013 was senr by the respondent to the originalallottee, which stated Allocation otthe Unit Number INX'l Ciqr Centre".

Thatthe respondent alloEed a new unit no.527 on 5rh Floor ofBlock F at Vatika INXT City Cenrre, Gurugram.

Thatsuch act of the respondent was arbitrary and jn conrravention to various provrsrons of rhF BBA dno orhcr agreemenrs. e.

That the o riginal allottee sold the said p.operry to rhe complainants vide agreement to sell dared 21.08.2013.

That respondenr sent a letter dated 15.09.2013 wherein the respondent acknowledEed thc complaintno.

353of 2022and PHARERA & eunuennM I g h.

Complaint no,353 oI2022 and transfer ofrightsand benefits to th€ complainants from the original allottee as perthe builder buyeragreement and other documenrs Thereafter the complainants made effort to seek updates on the allotted unit and the status oithe construction at the site, but due to gross negligence ol the respondenr, there was no satisfacrorv response from them.

After repeated lollow-ups and not getting a positjve response from the respondent, the complainants visited the construcrion site and were shocked to see that the construction has not been comptetcd tilldate.

Despite respondent promising th e complainants to provide them with world-class facilities, the complainants were shocked to see the incomplete construction ofrhe project.

That the respondent violated the terms and conditions ol burlder buyer agreement by not executing rhe sale deed of the booked/allotted uni! not handing over the physical possession of the booked/allotted unit and not providing with the paymenrs on account ofassured return as per clause 1 and 2 of rhe bujlder buyer agreement and addendum dated I 7.08.2011.

That with malafide intentions, the respondent on 06.08.2019 gor an addendum signed by the complainanrs and modified ctaLrse 32 ofthe Agreement.

Agreement.

That despire failing to provide the possession ot rhe subtect unitand failing ro handover the physical possess io n and wIh intention to cheatthe complainants, theaddendum was executed on the pretext that physical possession and assured rerurns would be given to the complainants. c.

8.

Conplaint no.353 o12022 and lrHARERA S- eunuenAv j.

That rill dare the respondenr has iailed ro register the proj€ct wirh the Authority and has violated rhe provisions of section 3 and 4 ot theAct and are liable to be punished undersection 59 ottheAct.

That it is clear from the inrenrjons of the .espondent that rhey are nor jncliDed to complete the said project and have faited ro acknowtedge theterms and condirions mentioned in rhe clauses otthe agreement Thatat therime of execution of theagreementdared 17.0S.201 1, rhe respo nden t had ass ured the original allottee/co m pta in a nts that th ey have taken necessary approvals from the competent authorities ro commence the consrruction work olthe p.oject.

However, ti date the construction remains incomplete, k.

That despite having paid rhe entjre sale consideration amount in advance of 121,93,750/- to rh€ respondenr, there is a considerable delay of ll years and the respondent has iailed to hand over the possession to rhe conplainants.

Thatthe complainants are left wirh no other oprion but to file rhe present com pta int.

Reliefsought by the complainants: The complainants have sought following retiea(s): a.

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

Direct the .espondent to pay delay penatry charges with interest as c.

Direct $e respondent ro handover rhe physical possession oi the subject commercialunit at Vatika lNxT CiryCentre, Gurugram d.

Djrectthe respondentto srrikedown rhe jmpugn clauses under BBA t& HARERA GURUGRAIV complaintno.

353 of 2022and e.

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

Grant the cost oflitigation otRs.

1,10,000/-.

9.

On the date of hearin& the authority explained to the respondent /promoters aboutthe conrravenuonsas alleged ro have been committed in relation to section 11(4) (a) ofthe Act to plead guilry or nor to plead cuilty D.

R€plybytherespondent 10.

The respondent has contesred the complajnt on the ioltowing grounds: a.

Th at the present complaint is not ma,ntajnable or renabtc in the eyes of law The complainants have misdirected rhemsetves in iiling rhe above captioned complaint before rhis Ld.

Aurhonty as the reliefs berng claimed by them cannor be sajd to tall within rhe reatm of jurisdiction of this Ld.

Authoriry.

1t is humbly sublnitted that upon the enactment ofthe Banning of Unregulated Deposit Schemes Act, 2019, (hereinafter relerred as BUDS Actl the'Assured Return'and/ or any "Committed Returns" on the deposit sch€mes have been banned.

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

Thus, the 'Assured Return Scheme' proposed and floated by the respondenr has become infructuous due ro operatron ot law, thus, rhe retref prayed in the p.esent complaint cannot survive due to operation ol b.

That the complainanrs enjoyed the monrhly rerurns rilt September 2018.

That the complaint has been filed by the complainanrs iusr to harass the respondent and to gain the unjust enrichment.

1r is 1r ds GURUGRAIU HARERA Complaint no.353 of2022 and pertinent to mention here that lor the fair adjudication ofgrievance as alleged by the complainants requires detailed deliberation by lead ing th e evidence an d c.oss'exami nation, thu s only the civil cou r! has jurisdiction to deal with the cases required detailed evidence for properand fair adjud ication. lhat the present complaint is not maintarnable before the Hon'ble Authority as lt is apparent from the prayers sought in the complaint.

Further, the complainants are not'A11ottee', but pu.ely a.e'lnvestor, who a. or, who a.e only seeking physical possession/delay possession charges from the respondent, by way of present complaint, which is not maintainable as the unit is not meanr for personal use rather rt is meant ior earning rental income.

The conrmercial unit of thc complainants are not meant for physical possession as the said unit is only meantforleasing the said commercialspace for earning reninl income.

Furthermore, as per clause 32.1(dl of the agreement, the said com mercial space shall bedeened to be legally possessed by thc complainants.

Hence, the commercial space booked by th€ complainants are not meant for physical possessron.

Before buyrng the property lrom the erstwhile allottees, the complainants were aware of the status of the project and the fact that the commercial unitwas only intended for lease and never for physicalpossession.

That further in the mattet of Bhorcm Singh & Ors- vs- Venetian LDF Prolcts IIP (Complaint No.

175 of 20181, the Hon'ble Real Estate Regulatory Authority, Gurugram had decided not to entertain any matter related to assured returns. fr HARERA Complaintno,3S3of 2022 and GI]RUGRA]V That the erstwhile allortees entered jnto an agreement i.e., builder buyerl agreement dated 17.08.2011 with respondent company thereafter owing to rhe name, good will and repurarion of the respondent company.

The complaina nts pu.chased the unitfrom rhe e.stwhile allottees on 16.09.2013.

That turther, rhe consr.uction of unit was completed and rhe same was duty informed ro the complainants vide letter dated 27.03.2018.'that due to exrern:l circumstance whi.h were not in control ot rhe respondent, minor timeline alterations occurred in comptetion ofrhe protecr.

That even though the respondent suff€red from setback due to externat crrcumstances, yet the respondent managed ro complete ttrc That thereafter on 06.08.2019, rhe comptainants also got an addendum signed'and executed.

The execution of the addendum is duly admitted by the complainants. plainants.

In terms of Addendum dated 06.08.2019, the complainants agreed rhat as on 01.07.2019, ''Annexure A, Addendum to theAgreement dated 17.08.2011,, where assured return was promised was agreed to be deleted and iresh clause 32 in the addendum rtseliwas to be read as reptaced ctause :]2 ol BBA Clause 3 ol rhe addendum srates that ,Annexure ,A, [Addendum to the Agreement dated 17.08.2011] to Clause 2 (Sale Consideration) oIBBA stands deleted'.

That the respondent company was facing umpteen roadblocks in construction and development work in projects comprised in township'Vatika India Next'b€yond the controt of the respondenr t EHARE S-eunue RA RA[/ Complaint no.353 of2022 and . construction,layinc down and/ or re{outins or chainsa-cursaon lhajjrr Hissar Cos Pip.tir€ by CasAutho.iiy oflndia Limited (Gail) fo. supplying laiural gas and the consequen! litigation for the same, due to whi.h the company was forced to chanse rts buildine plans, proj€ct drawincs, sreen ar€as, layinA down of the conn€cting roads and complete lay_out of the Township, includiDg that of independent fl ooE. .

Nonacquisition otland by Haryana Urban DeveloPment Authority (HUDA) ro lay down of J..tor Do,,s 75 mtr. and 60 mtr wide and the consequenr liisanon for lhesam€, the issue is evenyet notsettled compLetely; .

Lobour issue, distuptions/deloys in supply ol stone oggregate on.t sond dte to coutt oftle.t ofthe courts, unusuo t heow fdins, delat in supplt of.ement ond steet, dectdmtion ol cutgdon as 'Notified areo lor the purpose oIeNUd water. .

Deray ,n ,cmoval/ re.rou tir8, ol .refunct Hiqh rension Line oJ 66KvA i Licenses lrnd, deipite oaposltion ol.harges/ lee wih qVBPNL H.rvJnr. .

Total and p.nialDotr o,, conrt.ucltotr due to ihe directives trsued bv the National CreenT.ibunal during varioustimes since 2015. .

The National cren 'Iribunal (NcT)/Environment Pollution cont.ol Authority (EPCAI issued diectiv€s and measures (cR^Pl to counte. to counte. the deterioration ir Air quality in Delhi-NCR ft Sion especially durlng the unter months over the last feryears,Anorsvarious measures NCT, EPCA, HSPCB and Hon'ble Sup.eme Court imposed a complete ban on construction activities for a tot?l of?O days over various periods from November 2015 to .

The severalst.et hes oftotaland partialco.struction resrricaiors hale led ro signif.ont loss of ptoducrivi.y i, c.trst ucrio, or the project. 'the respondent has also sullered trom demobilization ofthe labour workinS on the p.ojects, and ittookseveral add jnonal {eell to resume the consruction activities with the required momentum.

That the complalnants are attempting to seek an advantag€ ol the dowdown ,n the real estate s€ctor, and it is apparent trom the facts ofthe present case that the main purpose ofthe present complaint is to harass the respondent by engaging and igniting frivolous issues with ulterior motives to pressurize the respondent company. lt is pertinent to submit that the complainants were 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 h. {ts HARERA GI]RI]GRAIV Complaint no.353 or2022 and arisen till date in favour of the complainants and against the respondentand hence, the complaint deserves to be dismissed.

That the various contentions raised by the complainants are lictitious, 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 relief as prayed for by the complainants are sustainable, in the eyes of law.

Hence, the complaint is liable to be dismissed with imposition ofexemplary cost for wasting th€ precious time and efiorts ofthis Hon'bleAuthority.

11 Written submissions filed by the respondent and the complainants a. ainants a.e also taken on record and considered by the authority while adiudicating upon the reliel sought by the complainanL Copies ol all the .elevant documents have been filed and placed on th€ record.

Thejr authenncrry is not in dispute.

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

Jurisdictionoftheauthority 12.

The authority observes that it has territorial as well as subiect nratter ju.isdjction to adjudicate the present complaint for the reasons giv.n E.

I T€rrltorlal ,urlsdlqtlon 3.

As per notification no. l/9212017-1'lcP dated 14.12.2017 issued by Town and Country Planning Departmenl Haryana, the iurisdiction of Haryana Real Estate Regulatory Authoriry, Gurugram shall be entire Curugram district for all purposes.

In the present case, the project in question is situated within the planning area oi Curugram district. u HARERA GURUGRAl\/ Therefo.e, this authoriryhas complete territorial jurisdrction ro dealwirh the prescnr complainr [.ll Subiect- matter iu risdtction 14.

Section 1 1[4] (al of rhe Act, 2016 provides rhat rhe promoter sha b. responsibletotheallotteesasperaSreementforsale.sccrion 11i4) (al is .eproduced as hereunder: "section 116) @) ]]e responsble lo. olt obligationt.espanjbilittes o nd lu nctions under the t.,, -. a4\ ol t\t r L ot t h, t Lle. oad t t gL tut r ". t, ana o-.. t.t a,, ot t, the o I I ottees ds pe t th e ag rec nent lol sole, a r to th e a $aciat i o n af o I lot te *, as the case na! be, till the conwyonce aI al the opartneni, plats ar buildihq\, os the cose no! be, to the ollattee, ar the camnan de;\ b the ttu.Mtian alallotte*atke canpetent outhoriE, a\ the.ose no! he Section 34-Functions of the Autt ortty: 344 b ersure .anpliarce oftheobligo on\costupan thc ptu,nate^, thc ollartees ah.l the rcol estate ogents uhdet thb Act ond the rules dnd .cg u lo tian s mo de the re untl e t.

15. l e t.

15.

So, in view oithe provisions ofthe Acr quoted above, the authority has complere jurisdiction to decide the complaint regardrng non-comptjance ofobligations by the promoter leaving aside compensation which is to be decided by the adjudicating officer if pursued by the comptainanG at a F.

Findings onthe obi€ctions raised bythe respondent l.l.

Obiection regarding maintainabitity of complaint on account of compla inants being investor 16.

The respondenr obiected that rhe complainants are investors and nor consumers and therefore, they are nor entitted to the prote.tion of rhe Act and thereby not entitled to file the complajnt under seftion 31 ot th.

17.

The authority observes thar any aggrjeved person can tile a complaint against the promoter ilhe conkavenes orviolates any provisions oirhe Complrrnt oo. lS3orZO22and HARERA P- GURUGRAII Complarnr no.l5l of2022 and Act or rulesor regulations madethereunder.

Upon carefulperusalof,I the terms and conditions ofthe buyeis agreement, it is reveated that the complainantsarebuyerand rhey have paid a considerable amounr to the respondent-promoter towards purchase of unit in irs projecr.

At thrs stage, it is important to stress upon the definition ofterm alottee under theAct, the sarne is reproduced below fo. ready reference: 2(d)'ollottee' inrctotjontoo rcolestoteprate.tnEo sLhe percon t )whon o plot, opartnent ot buttAng, as the cose no, be, has been o attetl, sotd {whether os frc.hold or hayhold) ar otheruise nondurcd by Lhe prcnater, dnd includes the pe.son wha subsequentt! ocqunes the soid ullatmefi tl)raugh sab, trcnsleror otheNise but doa not in.lude a p.rson ta whan such plot,apo.tmcnt ot buildng, o, the cae no! be, isgtren on rcnt 18. ln view of the above-mentioned definition of ,,a ortee, as we as all rh. terms and conditions ol rhe buyer's agreement execu red beEreen promoterand complainants, it is cleartharthe complajnanrs are altottees as the subject unit was allotted ro them by the promoter upon paynrenr o paynrenr ofthe entire sale consideration.

The concept ofinvestor is not defined or relerred to in the Act.

As per the definition given under sedion 2 ofthr Act, there will be "promoter" and 'allottee" and there cannot be a pany having a status of "investor'.

Thus, rhe contention otrhe promote. thar the complainants being invesrorare nor ent,rled ro protection ofrhis Act stands rejected.

C. tindings on the reliefsought by the comptainant.

G.l, Assured retum 19.

Ihe complainants are seeking unpaid assured returns on monrhly basis as per the addendum agreement ar the rares mentioned therern.

It is pleaded that the respondent has not comptied with rhe rerms 3nd condrtions ofthe said addendum agreement.

Though for some time, the amount ofassured returns was paid but later on, the respondent refused Pagc 18oi29 tr HARERA GURUGRAIV to pay the same by taking a plea rhat the same is not payable in view of enactment of rhe Banning ot Unregulated Deposit Schemes Act, 2019 (hereinafter reierred to as the Acr of 20191, ciring earlie. decision of the authority [Brhim,eet& An.

Vs.

N4/s Landmark Aparrments pvt.

Lrd., complaint no 141 oi2018) whereby retiefofassured rerurn was decijned by the authority.

The authoriry has rejecred th€ atoresaid objections raised by the respondent in CR/8001/2022 ti ed as Gaurav Koushik dnd anr.

Vs. yatika Ltl. whereh the authoriry has hetd thar when payment oi assured rerurns is part and parcet ot builder buyer,s agreement [maybe there is a clause in that document or by way of addendum, memorandum ofunderstanding or rerms and conditions of the allotment ola unit), then rhe builder is Uabte ro pay rhar amount as agreed upon and the Act o12019 does nor creare a bar for payment ol assured returns even after coming rnto operation as the paynrents made in this regard are protected as per section 2tal(tltiii) ot the Act of 2019 Thus, ihe plea advanced by the respondent is not sustainable in vrew ot the afo.esaid reasoning and case cired above. red above.

The money was taken by the builder as deposjr in advance against allotment of immovable properry and its possession wns ro be offered ivjthin a certain period.

However, in view oftaking sale considerarion by way oladvance, the builder promised ce(ain amount by way oiassured returns for a ce.tain period.

So, on his iailure ro fullil that comminncnt the conrplainanrs-allottees have a righr to approach rhe authoriry for redressal of their grjevances by way of filing a complaint.

Further, the M0U/agreement defines rhe builder buyer retarionship. rr can be said that the l{Ou/agreement for assured rerurns berwcen the Complaintno 353 of2022 and 20_ 21 *HARERA #-eunuennM Complaintno.

353of 2022and promoter and allotee arises out oi the same relationship.

It is not dispuied that the respondent is a realestate developer, a.d it h:d not obtained registration under the Act of 2016 ior the project in question However, the project in which the advance has been received by the developer irom the allottee is an onsoins project as per section 3(11 ot the Act ol 2016 and, the same would fall within the jurisdiction ol the authority for giving the desired reliel to the complainants besides initiating penal proceedings.

So, the amount paid by the complainants to the builder is a .egulated deposit accepted by the later from the fornrer against the immovable property to be transferred to the allottees later on.

In view ofthe above, the respondent is liable to pay assured return to the complainants-allotlees in terms of the addendum agreement dated 17.08.2011.

22.

Subsequontly, a new Addendum was executed inter se parties on 06.08.2019 whereby complainants agreed that the last para ofclause 2 ol BBA dated 17.08.2011, assured return clauses as per 'Annexure A', Addendum to the Agreement dated 17.08.2011" stands deleted and further, clause 32 of the BBA dated 17.08.2011 stands substituted.

1n terms of the said addendum, the respond€nt is liable to pay assurcd return tiIl01.07. tiIl01.07.2019 and the same is payable at the time ofl.asing ofthe Unit or within 90 days irom the date of execution ol the present Addendum Agreement whichever is earlier.

The relevant clauses of the Addendum are reproduced as under: ''1 l'his Addendum Agreenent shall becomc effective from 1n Iulv 2019 2.

NotwrthstandinS anythlng to the contr.ry co!!aLned rn th. saLd AErecmcDI and upon reconciliation olthe accounts olihe Allottee anv amount due and oayable ro the Allottoc/ lottees bv lhe PaSe 20 ol29 u HARERA GURUGRAIV Developer, including amounts payable under Annexure.A, (Addendum ro rhe aSreement, dared rTrh au8ust zorlJ ro clause 2 tsdle Cohtiderarionl .nd Cl.use 3l {Ledrrng ArEngenent)upto30'ilure,2019,shalt beserttedand payaht; atthe timeofleasinS ofrhe u0irorwithin ninerydays riom rhedate of executron of the present Adden{iun Agreement whi.hevcr is Annexure 'A' (Addendum to theagreefent,dated 17th AuSust 20111 to Clause 2 (Sale Considerarion) of the Builder Buyer agre€ment stands deler€d.

A fresh clause 32 asmennoned herein betow.epta.es, substirutes and supersedes rhe erstwhite clause 32 "Leasing arran8.hent,, of the ASreemeot w.e I 1st luty 2019." (Enphasb supptad) 23.

0nperusalof thecaseflle,itisrevealedthatemaitsdated 31.05_2020end 20.10.2021 had been sent by the conrptainants Oj CRl112212022, l to the respondent regarding payment ol outstanding assured return before 07.06.2020. ,l.he retevant Darr or emails is reiterated as under: "31.05,2020 Abo. ds pet lotesr guidettnes. t an ,urc rour afrces ore lunctnnal now.lt is aur urgent rcquest a cleo. our dues belare June ?,202A t:he we ore not bound to honour theoddendum sin9 aur sighatu@ w*e token oh the pretext olo lolse prcmise wth on ain ta da loryeD, tawo.dsus "20.12,2021 'theduesare peNlihgsince2T6 Novenber 2019 kodt,l issue o pDC or tut"n, daRond,ou-?.

Lae \o4?

Lo u.

E\ett.at th. dtuenann Nrllond Void ond all auteenentw t be ellective hnnediotely.

The lon dote far lou to re-.onete is lune O?,2a20 24. ?,2a20 24.

1t is worth noting rhat vide aioresaid rlvo emails, rhe complainanrs had requested the respondenrto payassured return beyond the agreed date [i.e., 30.06.2019] as per addendum dated 06.00.2019. further, the sajd emails were sent by rhe complainants posr the execution of rhe Addendum Agreement, thus thecomplajnants cannot raise the objection of documents being forg€d at such a belated stage.

It is Dot a djsputed iact cR / t t23 /2022 & CRI 1124 /2022) ffiHAREA S- erurcnrv Cohplaint no.353 of2022 and thatthe aforesaid addendum was du ly signed bythecomplainantsand its executioD is admitted by both the parries.

Mor.over, the comptainants have failed ro put forrh any document ro show rhat the Addendum agreement dated 06.08.2019 was executed under protest.

It is matter of lactthattheunitof thecomplainantsarenotleased out bythe respondeni till date.

Thus, the aforesaid Addendum becomes binding on borh the parties and accordinSly, rhe respondenr is liable ro pay assured returns ti1130.06.2019 and the same was payable within 90 days from the dare ot execution ofaddendum agreement dared 06.08.2019 being eartier.

G.ll.

Delayed possession charqes 25.

1n the present complaint th€ complainants intend ro continus wirh the project and are seeking possession oi the subject unit and delay possessjon charges as irov,ded under the provisions olsecrion 18(1J ot the Actwhich reads as under: "Secnon 18:.RetwnoJo ount on.l @mpqsation 13(1) fthe p.anate4oih taco,nphLeorkunabh tasrve poss\oh alun oportnent, plat, or building,- Pravided thot ehete dn ollottee does nat iatend b wnhdrcw ton the project, he shollbe paid, b! the prohoter, inte@tlat evqy nnnthaldelay, ttll the hahding overoJfie posessio,L ot such rcte os noy be ptescabed" 26.

A builder buyer agreement executed between the parhes and the due date of completion ofthe project is calculated as per clause 2 oa BBA i.e, 3 years from the date ofexecution of this agreement. agreement.

The relevant clause is reproduced belowl "f he developer shall.on plete the constru.tian of the taid conpleN fithin 3 yeod Iron the dote oI execution oJ thk ogreenent Furthe. the allofiee hos patd fullsok cansiderution on egning olthis agreenenL the .levelap lurther undertok5 to noke polneht as pe.dnncxurc,4 pt sq tt. o| super o.eo per nanth b!eoral connttEd rerum lot rhe pqod al .ansttuctian,which theoIIateed,tyo..epts. tn theevenrola ne olettn trs HARERA GURUGRA[/ Complaint no.353 o12022 and i n.on p I ettan ol t h e so i d ca h p le x th e dev et op er shdt I conti h u e tn pal to the otlottcethe||thin nehtonedassured return untilthe unt is aft'e;e; br the de ve I ope r la r pase $ i a n, 27.

Adnissibility of detay possession charaes at prescribed rate or ioterest: The complainants are seeking detay possession charges Proviso to secrion 18 provides that whe.e an a ortee does not inten.t r. withdraw from rheproject, he shaltbe paid, by rhe promot€r, inre.esr tor every month oldelay, tjtl rhe handing over of possession, at such rare as may be prescribed and it has been prescribed under rute 1S of rhe rutes Rule 15 has been reproduced as onder: " Rule 15.

Pres.nbe.l rate ol interest- lproviso to section 12, se.tion 18 and sub-section @ aNt subse.tion (7) oJ se.tion 191 Fot thc plrpase of ptovisa to section 12; section 1q and suL).sections (4) ond (7) alse.tion 19, the"inte.6totthe.ate prescribed,thottbe the srol" Ba n k aI t n d ia h tgh 6t no e no I cos t aJ tend ng ru te + 2 %..

Provtded thot in core the Stdte Bont of Indio norginol.ostal lentlng rote (Mct.R) is not in ue, n shat he reptaced br such benchnork tendt ni rutes which the state Dank ol lndia tuo!lx llon tine to tine lor tetujing to the genetulpublic" 28.

The legislature in its wisdom in the su bordinate legjslatio n u nder the ru te 15 of the rules has determined the prescribed rate of interesr.

Consequendy, as per webste of the State Bank ot tndia ie.. tndia ie.. i31!!, the marginalcost of lending rate Iin shorr, MC].R) is on date i.e.,04.04.2025 is 9.100/0.

Accordingly, the p.escribed rate ofinreresr willbe marginal cost of lending rate +2% i.e.,11.10%.

29.

On consideration of documents available on record and submissions made by the complainants and the respondent, rhe authoriq, is satisiied th at the respondenr is in contravention of the provisions of rh e Act Th. construction ofthe project was to be compteted by 17.08.2014.

30.

I{owever now, the proposition before it js as ro whether the a otree who ,s getting/entitled for assured return even after expiry ot ilue date of rs possession, can claim borh the assured return as well as detaved possession charges?

31.

To answer the above proposjtioD, it rs worthwhilc ro .onsider thar th. assured return in this case is payable as per "Annexure A, Addendunr Agreement dated 17.08.2011" read with "Addendum Agrecnrent d:rled 06.08.2019" and the respondenr js liablc ro pay issured.eturn to the complainants allottee {71.50/- per sq. ft. on monthty basis titt 30.06.2019. lf we compare this assur€d rerurn wirh delayed possessron charges payable under proviso io section 18[1] oi the Act, 2016, the assured return is much better as is encapsulated in rhe following rable tor allthe complaints: (on'phint (R/lt3/2022 Complaint no.353 of2022 and { ls 750/. , 1Jt',z50/ r35.750/ 135.750/.

124,292/ .z0,z9l/.

HARERA GURUGRAIV *l 32.

By way of "Annexure A, Addendum ASreement dared 17.08.2011" read with'Addendum Agreement dated 06.08.2019", the respondent is liable to payassured retum to the complainants allottee 171.50/- persq. ft. on monthlybasistill 30.06.2019.Thepurposeoldelayed possessjoncharges after due date ofcompletion of project is served on payment of assured return.

The same is to safeguard rhe interest of the allottees as their money is cont,nued to be used by the promoter even after the promised cR/1t22/2022 cR/t1zt/2o22 120,2q2/ t24,9751.

EARERA GURUGRAIV u Complaint no. plaint no.

353 of 2022 and due date and in return, they are to be delayed possession charses wh ichever other remedy i ncluding compensation.

33.

The Authority further observes rhar rhe respondent has failed to complete the construction of the project and ro obrain occuparion certificate in respect of the project where the units ofthe comptainants aresituated.As delineated hereinabove, th e assu red retu.n is payable ritl 30.06.2019 as agreed between the parties vide Addendum Agreement However, the liability ro pay delay possession charges as per p.oviso to section 18(1) of the Act js srill conrinuing and the same is payabte w...f.

01.07.2019 rill the comptetion otrhe projed afrer obtarning occuparion certificate from rhe competent authoriry.

34.

Accordingly, the respondent is directed to pay the amount of assured .eturn at the agreed ratei.e., @ 71.50/-persq. ft. per month f.om the date lhe orvmenl or 25sLred relJrn hr5 not been p. d lr.l {00o.,/0t{r .h, .espondent is di.ected to pay rhe outshnding assured return amounr, ii any, at the agreed rare within 90 days trom the date of this order after adjustment otoutstanding dues, ifary from the complainants and taiI ng which that amount would be payabte with interest @ 9.10% p.a. til rhc date ofactualrealizatjon.

Further, the respondent is dj.ected to pay delay possession charges @ 11.100/o p.a. on the amount paid by rhe complainants w.e.f.

01.07.2019 ti the comptetion oi the projecr atter obtajning occupation cert,ficate trom the competent authority.

The arrears of such interestaccrued t om01.07.2019 till rhedateof rhrsorder by the authority shall be paid by rhe promoter ro the comptainantlsl- allottee[s) within a period of90 days from date otrhjs order and inrerest paid either the assured rerurn or ls higherwithourprejudic€ to any & HARERA GURUGRAIU Complaint no.353 o12022 and for every month of delay shall be paid by the promoter to the before 10d ofeach subsequentmonth as per rule 16(Z) ofthe G.llL Possesston G.lV. ston G.lV.

To direct the respondent to st.ike down rhe impugn ctauses under BBAand addendum 35.

With respect to the aforesaid reliefs, the authority observ.s that rhere is no clause in the entire BBA which obligares the respondent to handoler physrcal possession olthe unit to the complainant.

Furthermore, as pe. clause 32 of the agreement dated 17.08.2011 read with Addendum Agreement dated 06.08.2019, itwas agreed between the parries that on completion of the project the deve)oper shall put the said unit on teas€ and the unit shall be deemed to be legally possessed by rhe complainant.

The authority furrher observes that the complainants have failed to pur iorth any document ro show that the agreement and addendum rhereto was executed under protest.

Also, no objection/protest wharsoever, was made by the complainants at any point oftime since rhe execution ofrhe BBA/addendum.

Accordingly,handingoverthe physjcal possession ilas neverthe intent oftherespondent rarherrhe unit was to be leased our.

G.V.

CoDveyance deed 36.

Wjth respect to the conveyance deed, clause 8 of rhe BBA provides rhat the respondent shall sell the said unit to the allortee by executing and registering the conveyance deed and also do such other acts/deeds as may be necessa.y lor confirming upon the allottee a nrarketable title to the said unit free i.om allencumbrances.

37.

Section 17 (11 of the Act deals with duties of promorer to get rhe conveyance deed executed and rhe same is reproduced belowl allottee[s) u HARERA GURUGRA[/ Complaintno,3S3of 2022and U).

The pronater shollde.Lte o rcgkte.ed.anveyonce deetl n lavaurofthe d4alll"olaa9r'Ialh?Ladlv,dedp.apo'a4wtcllP )e ossocionan of the ollo$ees ot the.atnpetent outho.itt, as the case no! be, and hond avet the phyicalpassession aIthe plot:, opo hentofbundns,as thecase mo!be,to theollottees and the Lamnan ateas to the asso.totDn at t hp altatt""\ a. t np .4petet au nor, !

L, t ry .

L, t ry . ov aat bo,1 o,,,t e\oi pro)ect, ond the athet title docunehtt pertoning thereto thin speoled petiad as per sanctiohed plonsos p.avjde.l uhdet the lrat tows: Pravided thot,1n the absence aI.ny lo.ol lo||, convelone deet n lovau. al the ollotEe at the assadottan of the ottottees a. the conpet nt aLtho ty, o\ the cose tuot be, under this se.tion sho bc catried out b, the p.onatd ||nhn thrce nonths ron dote of 6ste al aIupdnLr .etifica@ " 38.

The au th ority observes that 0C in respect of th e prolect !vhere the sub iect unit is situated has not been obtained by the respondent promorer ritt date.

As on date, conveyance deed cannot be executed in respect of rh. subject un,t, however, the respondent promoter is contractually and legally obligated to execute the conveyance de€d upon receipr ot the occupation certificate/completion certjficate from the competent authority.lnviewof above,the respondentshallexecutetheconveyance deed ofthe allotted unit wfthin 3 months after the receipt ofthe 0c trom the concerned authority and upon payment oi requisite stamp dury by the complainant as per norms ofthe state governmenr.

G.

VL Litigation cost-11,00,000/-.

39.

In the above m€ntioned reliei rhe complainants sought rhe compensation and Hon'ble Supreme Court oflndia in case titled as M/s Nevitech Promoters and Developers PvL Ltd.

V/s State oJ UP & Ors. (2021-2022(1) RCR(C) 3SA, has held thatan allottee isentirled ro daim compensation under sections 12,14,18 and section 19 which is to be decided by the adjudicating oificeras persection 71 and the quantum ol compensation & litigation expense shallbe adjudged by the adjudicaring officer having due regard to the lactors mentioned in section 72. lhe *HARERA s$- ounucn,qrr,r Complalntno.

353of 2022and adjudicating officer has exctusivejurisdiction to dealwith the complaints in respect of compensation & legal expenses. expenses.

Thererore, for claiming compensation under sections 12, 14, 1g and section 19 of the Act, the complainant may fite a separate compla,nr before Adjudicating Omcer under section 31 read with sect,on 71 ofthe Act a.d rule 29 ofthe rutes.

H.

Directionsoftheauthortty: 40.

H€nce, the authorty hereby passes rhis order and issues the following directions under section 37 oftheAct to ensure compliance otobligations cast upon the promoter as pel.llie;f.onction entrusted to the aurhority undersection 34[0: : h The respondenr is directed ro pay the amount ot assured rerurn at the agreed rate i.e., @ 71.50/- per sq.lt. pe. month from the date the payment ol assured rerurn has not been pajd riI 30.06.2019.

The respondent is directed to pay the outstanding assured return amount,,fany, ar the agreed rate wiihjn 90 days from rhe date ofthis order after adjustment of outstanding dues, if any, from the complainants and lailing which that amount would be payable rvrth interest @ 9.100/0 p.a. hll the date ofactual realization.

Further, the respondent is directed to pay detay possession charges @ 11.10% p.a. on the amount paid by the complajnants w.e.t 01.07.2019 tjll rhe completion oi the project afrer obrainjng occupation certificate irom the competent authority.

The a..ears oi such interest accrued from 01.07.2019 tjll rhe date of this order by the authority shall be paid by the promoter to rhe complainantG)- allottee(s) wjthin a period oi 90 days from date of this order and rrterest for every month old€tay shal be paid bythe p.omoter to rhc t3 d[ GURUGRA[4 HARERA Complaintno.

353of 2022and allottee(s] before l0,hofeach subsequenrmonth as per rute 16(2) of l he respondent is directed to execute the conveyance deed oi rhe allotted unit within the 3 months after the receipt otthe OC from the concerned authoriry and upon paymenr of requisire stamp dury by the complainantas per no.ms of the state governmen r. 'l'he respondent shall nor charge anyrhing from the. from the.onrplatnants which is not the part ofthe builder buyer agreemenr.

A period of 90 days is given to the respondent ro compty with the directions given in rhis ord€r and faiting which tegal consequences 41.

This decision shall mutatis murandis apply to cases menrioned in para 3 of this order wherein details of rate oaassured retu.n, area ot rhe unrt amount paid by the complainrnt(s)-allouee and amount ofassu.ed rerurn received by the complainant[s] is mentioned in each oithe complaints.

42.

The complaints as wellas applications, jiany, stand disposed ot 43.

Truecertified copiesoathis orderbe ptaced on thecasetile ofeach marter.

44.

Files beconsigned to registry.

4*'o"-.t Dated:0t042025 (Arun Kumar) Chairman Haryana Real Esrate Regulatory Authority, Gurusram