DEEPAK NARULA vs VATIKA LTD

HARERA fl6 ci rDL raDAt\t ERG \-/u \u\-/lV nv BEFORE THE HARYANA REAL ESTATE REG AUTHORITY, GURUGRAM LATORY ORDER L.

This order shall dispose ofall the 6 complaints tled as above filed before this authority in form CRA under n 31 of the Real Estate [Regulation and Development) Act, referred as "the Act") read with rule 28 of the fRegulation and Development) Rules, 2017 (he "the rules") for violation of section 11[4)(aJ of 016 (hereinafter ryana Real Estate responsible for all Complai t no.

5050 of 2023 17.o5.2024 order reserved oni 26.O7.2024 Order pronounced M/s Vatika Limi India Next City C Proiect Name Complaint title complaint No.

Ms.

SonalAnand Ms.

Ankur Be Deepak Narula and Sujata Narula V/s Vatika Limited cR/5050/2023 Ms.

Ankur Be Deepak Narula and Sujata Narula V/s Vatika Limited cR/5047 /2023 Ms.

Sonal Anand Ms.

Ankur Be Deepak Narula and Sujata Narula V/s Vatika Limited cR/s015/2023 Ms.

Ankur Be Deepak Narula and Suiata Narula V/s Vatika Limited cR/5048/2023 Ms.

Ankur Be Deepak Narula and Sujata Narula V/ Vatika Limited cR/5051./2023 Ms.

Ankur Ber Deepak Narula and Sujata Narula V/ Vatika Limited cR/4999/2023 Member Shri Sanjeev Kumar Arora inafter referred as e Act wherein it is inter alia prescribed that the promoter shall Page I of26 Name ofthe Builder Attendance CORAM: HARERA gB AI IDI Lc.DA]\/ 2. its obligations, responsibilities and functions to e allottees as per parties. the agreement for sale executed inter se betlvee The core issues emanating from them are simil complainant[s) in the above referred matters proiect, namely, India Next City Centre (Com cial Complex) being developed by the same respondent/p in nature and the allottees of the moter i.e., Vatika builder buyer's ese cases pertains imely possession yed possession unit no., date of ession, offer of id up, and reliefs to failure on the part of the promoter to deliver Limited. r Limited.

The terms and conditions of th agreements fulcrum of lved in all of the units in question, seeking award of d charges and assured return.

The details of the complaints, reply status, agreement, possession clause, due date of possession, total sale consideration, amount sought are given in the table below: 3. t no.

5050 of 2023 : India Next Ci Possession clause: Clause 10 Subject to the aforesaid(force majeure conditions) and subj by the buyer of sale price, stamp duty and other charl according to the pa),ment plan applicable to him as demand the developer contemplates to complete construction ofthe within 48 months ofthe execution ofthe to timely payment s due and payable by the developer, id commercial unit 5.2016 (Expired) Note: 7.

License no. - 122 of 2008 dated 14.06.2008 valid up to 13 2, Occupqtion certificate- Not obtained 3, offer of Possession-Not offered Total sale Consideration, amount paid by the Complainant Complain t no Unit No. and area admeasuring (Carpet area) Date of execution of apartment buyer's Due date of ssession Offer Page 2 of26 HARERA B GURUGRAII no.5050 of2023 (s) and assured return paid by cR/s0s0/ 2023 2nd, floor block E, 500 sq. ft. (pc.

24 complaint) 15.03.2072 15.03.2016 TSCr { 20,00,000/- (us per agreement on pg.

24 ofcomplaint) AP: { 20,00,000/- @C24 of complaint) AR: 1 25 ,45 ,484 / - cR/s047 / 2023 (pg.

24 o complaint) TSC: { 20,00,000/- [as per agreement on pg.

24 ofcomplaintl AP: r 20,00,000/- @g24 of complaintJ AR: < 25,45 ,484 / . cR/s01s/ 2023 block E, 500 sq. ft.

TSC: 120,00,000/- [as per agreement on pg.

24 ofcomplaintl AP: { 20,00,000/- (p824 of complaint) AR: Page 3 of 26 I | | | I the respondent block E, sq. ft. ol (p9.22 of complainl) fioot I 16.04.2072 16.04.201,6 rpg.22 of complaintJ 77.03.2012 L7.03.2076 [os.44 ofrer r HARERA b* eunuennu Complaj & 5 oth( rt no.

5050 of2023 rs (pC.

24 of complaint) (pg.

22 of complaint) 125,68,627/ - (pg.

44 ofreply) 4. cR/s048/ 2023 2rd, floor block E, 500 sq. ft. (pg. . ft. (pg.

24 complaint) of 76.04.20L2 76.04.201.6 h.

TSC: { 20,00,000/- [as per agreement on pg.

24 ofcomplaintl AP: { 20,00,000/- bC.24 of complaintl AR: < 25,68,62t/ - [ps.

44 of replyl cR/s0s1/ 2023 (pg.

24 of complaintJ 16.04.2012 TA ANI TSC: 120,00,000/- las per a8reement on pg.

24 ofcomplaintl AP: { 20,00,000/- lp9.24 of complaint) AR: 125,45,484 /- fos.

44 of reolvl corIlpral L, 6. cRl4999 / 2023 2nd floor block E, 500 sq. ft.

16.04.2072 16.04.2016 TSC: r 20,00,000/- Ias agreement on pg.

24 ofcomplaintl AP: 120,00,000/- (p824 of complaint) AR: Page 4 of 26 2nd block E, sq. ft.

76.04.2076 HARERA OURUGRA[/ Complai & 5 othe lt no.5050 of2023 "s hC.

24 of complaintl (pe.

22 of complaint) < 25,68,627/. (pg.

45 ofreply) Noter In thetable referredabove certain abbreviations ha are elaborated as follows: Abbreviations Full form TSC- Total Sale consideration AP- Amount paid by the allottee[s) r'e been used.

They 4.

The aforesaid complaints were filed by the con the promoter on account of violation of tht agreement executed between the parties inter s€ unit for seeking award of possession, delayed pr execution of sale deed and assured return.

It has been decided to treat the said complaints for non-compliance of statutory obligations or promoter/respondent in terms of section 34(0 mandates the authority to ensure compliance r cast upon the promoters, the allottee(sJ and the under the Act, the rules and the regulations mad( The facts of all the complaints complainant(s)/allottee(sJ are also similar.

Or mentioned case, the particulars of lead case CR r as Deepok Narula and Sujata Narula Vs.

M/s V, being taken into consideration for determining allotteeIs) qua possession, delay possession cha sale deed and assured return.

Proiect and unit related details 6. plainants against builder buyer's in respect of said ssession charges, as an application r the part of the of the Act which )f the obligations real estate agents rthereunder. hereunder. filed by the rt of the above- ;050/2023 titled Ttika Limited are the rights of the :ges, execution of Page 5 of 26 A.

7.

HARERA ffi GURUGRAI/ The particulars of the proiect, the details of sale onsideration, the amount paid by the complainant(s), date of pro ed handing over detailed in the the possession, delay period, if any, have b following tabular form: cR/5OSO/2023 titled as Deepak Narula and uiata Narula Vs.

M/s Vatika Limited Complai &5oth t no.

5050 of 2023 Name of the project India Next City Ce Gurugram, Haryan tre at Sector 83, Nature ofthe project DTCP license no.

L22 of 2008 dat up to 13.06.2016 Expired) 14-05.2008 valid Name oflicensee M/s Trishul Indu RERA Registered/ not registered Not Registered *Since the proiect the registration b necessary actio provisions ofthe A is not registered nch may take the under the Date of builder buyer agreement 1,5.03.2012 [pg.

22 ofcomplai Unit no.

2nd floor block E,5 (page 24 ofcomp Possession clause Due date ofpossession 15.03.2 016 Sale Consideration 120,00,000/- [as per agreeme complaintl t on pg.

24 of Page 6 of26 S.no.

Particulars Details 2.

I Commercial colon1[ 6.

B.

9.

10.

The developel contemplqtes to complete the constluction of the soid commercidl unit wfuhin 48 months of 10, 11.

B.F HA&EBA GURUGRAII Compla & 5 othr nt no.5050 of2023 rs 12.

Paid up amount as per BBA t 20,00,000/- [p9.24 ofcomplai tl 13.

Completion of construction 26.03.20L8 (page 63 of replyJ 1,+.

Offer ofpossession Not offered 15.

Occupation certificate Not obtained 16. assured return paid till September 2018 "as per clause 12 return is to be pa execution of agreer ofconstruction of tl of the agreement d from the date of nent till completion .e said buildine" 1,7.

Assured return paid E iw\,4s,484/ - $ per page 45 of reply) racts of the complaint a.

That sometime in 2012, the respondent thr( and representatives approached the compla to sell commercial units in the project, furt. ect, furt. promised "guaranteed and assured return,, r by them upon them making a full consideratl that the respondent shall allot commercial u pro,ect, immediately upon payment and pur shall pay monthly assured return to the ( assured return was agreed to be paid at the feet of area allotted.

It was agreed as p( monthly assured return shall be paid to the units are ready for possession and subseqr from the date of completion of the pro,ect completion certificate/occupation certificatr l.

The complainants made a payment of Rs.2 respondent towards the sale considerations )ugh their officials inants and offered ler on which they )n the money paid on.

It was assured nits to them in the suant to that, they omplainants.

The rate of Rs.

65/Sq. ,r terms that the m till the time the ently, for 3 years rnd the receipt of ) for the proiect.

0,00,000/- to the ofthe said unit as Page 7 of 26 b * HARERA #eunuennnr per the asking ofthe respondent.

The build dated 15.03.2012, vide which, they were al No[sJ 208E respectively, in the proiect, ha 500 Sq.

Ft.

Therefore, as per the agreed 32,500/- was payable by the respondent every month for their unit.

The respondent the payment to the complainants from 01.1 fact that they were bound by the te mentioned builder buyer agreements whi force and thus, the respondent is duty assured return on a monthly basis till the completed, handover made and the OC subsequently, till the period of 3 years the Thereafter, having no other option, the co their counsel sent a legal notice dated respondent.

However, despite duly receivi the respondent did not pay any heed towar not reply and did not pay the due amount.

It that a letter was issued by the respondent C.

8. that the proiect is completed in 2018 in or liabilities, however, the letter turned ou untrue. ou untrue.

The proiect is still incomplete a received even as on date- Relief sought by the complainants: The complainant has sought following relief(s]: Compl r buyer agreement otted unit bearing ing a super area of rms, a sum of Rs. the complainants, bitrarily stopped .2018, despite the s of the above- (are stilll in full ound to pay the ime the proiect is CC received and fter. plainants through 8.08.2019 to the the legal notice the same and did s pertinent to add aking out falsely er to escape their to be false and d the CCIOC not Page I of 26 HARERA M GURUGRAN/ Direct the respondent to handover the a b. d. assured returns along with interest @18% 9.

On the date ofhearing, the authority explained promoter about the contraventions as all committed in relation to section 11[4J (a) of th or not to plead guilty.

D.

Reply by the respondent 10.

The respondent has contested the complain grounds. a.

That upon the enactment of the Banni Deposit Schemes Act, 2019, (hereinafter re the 'Assured Return' and/ or any "Commi deposit schemes have been banned.

The r possession of the subject commercial unit.

Direct the respondent to execute the sale said unit in favour of the complainants.

Direct the respondent to pay the delay pe interest as per the RERA Act, from the due , Direct the respondent to make payment having not taken regktration from SEBI operate, and continue an assured retu implications of enactment of BUDS A Companies Act, 2013 and Companies (Acce Rules,2014, resulted in makingthe assured return and similar schemes as unregulate within the definition of "Deposit".

Thus, Page 9 of26 , physical, vacant deed of the above alty charges with ate of possession. on account of the n delay. the respondent/ d to have been act to plead guilty on the following g of Unregulated rred as BUDS Act) Returns" on the pondent company oard cannot run, scheme.

The read with the nce of Deposits) eturn/committed schemes as being the simultaneous I Complafnt no. plafnt no.

5050 of 2023 lasotnlrt HARERA MGURUGRAM b. reading of the BUDS Act read with the Co and Companies (Acceptance of Deposits) R in making the assured return/committed 2018.

The complainants have not come before this Hon'ble Authority and has schemes illegal.

Thus the,assured return and floated by the respondent has become operation of law, thus the relief prayed complaint cannot survive due to operation of fact, the respondentlduly, paid Rs.

25,45 material facts.

That further the Hon'ble High Court of pu CWP No.

26740 ol 2022 tirled as ,,Votiko L lndia & Ors.", took the cognizance in res Unregulated Deposits Schemes Act, 2019 Union of India and the State of Harvana fr steps in criminal cases registered against seeking recovery against deposits till the n That in the said matter the Hon,ble High issued notice and the matter is to be re-noti That once the Hon'ble High Court has State of Haryana has already notified th competent authority under the BUDS Act, th the question of law i.e., whether such dep under the BUDS Act or not, and whether this has the jurisdiction to adjudicate upon th Page lO of26 int no.

5050 of 2023 panies Act, 2013 1es,2014, resulted rn and similar scheme proposed infructuous due to br in the present f law.

As a matter 484l- till Ocrober th clean hands uppressed these jab & Haryana in ited Vs.

Union of ct of Banning of nd restrained the taking coercive the Company for t date ofhearing. urt has already on20.03.2024. cognizance and appointment of s it flows that till sits are covered on'bleAuthority matters coming HARERA *.

GURUGRAIV within the purview of the special act nam the present complaint ought not be adiudi That further in view of the pendenry of 2022 before the Hon,ble High Court of p Hon'ble Haryana Real Estate Appellate Tri 647 of 20Zl while hearing the issue considered the factum of pendency of the question regarding jurisdiction of any oth the competent authority under Section 7 Unregulated Deposits Schemes Act.

2019.

Act.

Haryana Real Estate Appellate Tribunal a the pendency of the pertinent question jurisdiction in assured return matters, ad, as any order violative ofthe upcoming judg High Court would be bad in law.

Thus, the should consider the act of Hon,ble Ha Appellate Tribunal and keep the present final adjudicarion of CWp 267 40 of 2022. d.

That it is also relevant to mention here th unit of the complainants were not m possession as the said unit is only meant commercial space for earning rental incom per the agreement, the said commercial spac to be legally possessed by the complai commercial space booked by the complai for physical possession.

Compl rnr no.5u5U ot 2023 y, BUDS Ac!

2019, ted. e CWP 267 40 of jab & Haryana, the unal, in Appeal No. f assured return, writ wherein the r authority except of the Banning of That the Hon'ble r consideration of egarding its own ,urned the matter ent ofthe Hon'ble on'ble Authority Real Estate atter pending till t the commercial nt for physical r leasing the said Furthermore, as shall be deemed nts.

Hence, the nts' is not meant Page 71 of 26 T HARERA #- eunucnnnl e.

That it is pertinent to note that the resp been devoted towards its customer and kept all its allottees updated regarding Iaw, judgments passed by the Hon'ble Hi status ofdevelopment activities in and aro highly pertinent to note that vide email da respondent sent a communication to all i suspension of all return-based sales and f bring detailed information to all investor F ltt based projects.

The email communication confirmed to the allottees that the proie available [or leasing.

That the issue rega assured returns/committed return and r accounts as of luly 2019 was also commu allottees of the concerned project.

Furth intimated to all its dllottees that ln view o and formation of new laws the amend addendum would be shared with a1l the all their interest.

That on 28.72. on 28.72.2018 all th project were sent email regarding stopp and option was given that the allottee cou another proiect registered for getting benefit, that the complainants chose to sit o 6 years cannot pray for relief of assured time barred. ndent has always ve over the years e amendments in Courts and the d the proiect.

It is 31.10.2018, the allottees qua the rther promised to f assured return- f 29.02.2016 also was ready and ing stoppage of conciliation of all icated with all the r the respondent the legal changes ent to BBA vide ttees to safeguard allottees in the of assured rentals chose to shift to mmitted returns er his right for last urn as the reliefis PaEe 12 of26 I Complafnt no, sos O of 2o,3 I lasotr,lr.t I *HARERA #-eunuennr,r E.

1.2.

11.

The Covid pandemic has given people to basic legal way and to attempt to gain fina others.

That the respondent duly paid the assu complainants till October 2018.

Furth circumstances which were not in control construction got deferred.

That even tho suffered from setback due to external cir respondent managed to complete the con letter of completion of construction dated Copies of all the relevant documents have been the record.

Their authenticity is not in di complaint can be decided on the basis of documents and submission made by the parti Jurisdiction of the authority The authority observes that it has territorial matter iurisdiction to adjudicate the present reasons given below.

E.

I Territorial iurisdiction As per notification no.

1/92/2017-1TCp dated by Town and Country Planning Departm jurisdiction of Real Estate Regulatory Authority, entire Gurugram District for all purpose with Gurugram.

In the present case, the proiect in q within the planning area of Gurugram Distri L3, Compl think beyond the cially at the cost of return to the due to external f the respondent, h the respondent mstances, yet the truction and sent 6.03.2018. ed and placed on pute. d on pute.

Hence, the hese undisputed s well as subiect omplaint for the 4.12.2017 issued t, Haryana the urugram shall be ffices situated in estion is situated Therefore, this Page 13 of 26 ffiHABERA H,ounuenntl authority has complete territorial iurisdictio present complaint.

E, Il Subiect-matter iurisdiction 14.

Section 11[4](a) ofthe Act,2016 provides rhat be responsible to the allottee as per agreem 11(4)[a) is reproduced as hereunder: Section 11(4)(a) B-e responsible for (rll obllgqtions, responsi functions under the provisions of this Act . ond regulqtions made thereundir or to the a per the qgreement for sale, or to the asso allottees, as the case may be, till the con the oportments. plols ot buildtngs. os tlp Lqsp the ollottees or lhe common orleas to Lhp ass, ollotLees or Ihe , ompetenr aut ho1ly, o.

Lh" I a S_ection 3 4- Fu n c lions of th e A u thoriry: 34A of the Act provides to ensure complian obtigations cast upon the promoters, the allo the real estqte ogents under this Act and the reg u lations m ade thereunder.

15.

So, in view of the provisions of the Act of 2016 authority has complete jurisdiction to deci regarding non-compliance of obligations by the aside compensation which is to be decided officer ifpursued by the complainant at a Iater s F.

Findings on the obiections raised by the F.I Obiection regarding delay due to force maieu 16.

The respondent- promoter alleged that grace pe account of force majeure conditions.

The res raised the contention that the construction o delayed due to force majeure conditions such shortage of labour, various orders passed by int no.

5050 of2023 to deal with the the promoter shall t for sale.

Section ities and the rules ttees as ation of of all ay be, to iation of moy be; of the and ules ond uoted above, the e the complaint promoter leaving the adiudicating e. ndent: circumstances. umstances. od be allowed on ndents-promoter the proiect was demonetization, GT and weather Page 14 of 26 trHARERA #- ounuennu conditions in Gurugram and COVID but all th this regard are devoid of merit.

The flat bu executed between the parties on 15.03.2012 a conditions of the said agreement due date possession comes out to be 15.03.2016.

The construction and various orders by NGT i condition of Delhi NCR region, were for a sho and were not continuous where as there is a del years even after due date ofhanding over of is nothing on record that the respondent application for grant of occupation certificate. respondent cannot be given any leniency on reasons and it is well settled principle that a benefit of his own wrong.

G.

Findings on the relief sought by the compla G.l Direct the respondent to handover the a possession ofthe subiect commercial unit G.ll Direct the giving the physical possession ofthe respective: p.a., till handlng over the physical possession apartment from the due date. t7.

In the present complaint, the complainant inte the proiect and is seeking delay possession under the provisions of section 1B(1) of the under: "Section 1B: - Return ofqmount and (1).

If the promoter fails to complete or is una possession of on apartment plot or building, int no.5050 of2023 pleas advanced in r's agreement was d as per terms and f handing over of ts such as delay in view of weather duration of time y of more than two ession and there even made an us, the promoter ased of aforesaid erson cannot take l, physical, vacant the delay in partments @ 18olo of the respective to continue with rges as provided which reads as Page 15 of 26 ffiHARERA H Gunuennr,r Provided that where an allottee does not withdrow from the project he shqll be promoter, interest Jor every month of del handing over of the possession, ot such rate prescribed." 18.

The apartment buyer's agreement was exe parties. e parties.

As per clause 10 ofthe agreement, the handed over within a period of forty_eight mon execution of agreement.

The clause 10 of the b reproduced below: Possession L9.

Subject to the oforesaid(force maieure ct and subje_ct to timely payment by the iuyer of stamp duty and other charges due an a.ccording to the pqyment plan applicqbte demanded by the developer,lhe deve:loper con, to complete construction ol the soid tomme within 49 monhr of the ;^ecution ol the (Enphosis supptied) At the outset, it is relevant to comment on the clause ofthe agreement wherein the possession to all kinds of terms and conditions of this a complainant not being in default under any agreement and compliance with all provision documentation as prescribed by the promoter. clause and incorporation of such conditions is n uncertain but so heavily loaded in favour of against the allottees that even a single default allottees and the commitment time period possession loses its meaning.

The incorporatio formalities and documentations etc. as prescribe may make the possession clause irrelevant fo int no.

5050 of2023 intend to d, by the ,, till the him as may be ted between the ssession was to be s from the date of yer's agreement is itions) ale price, payable plates I unit reement preset possession as been subiected ment, and the rovisions of this , formalities and e drafting of this t only vague and e promoter and y him in fulfilling by the promoter the purpose of r handing over of such clause in Page 16 of 26 HARERA M GURUGRAI/ the buyer's agreement by the promoter is iust towards timely delivery ofsubject unit and to of their right accruing after delay in possess comment as to how the builder has misused hi and drafted such mischievous clause in the allottees is left with no option but to sign on th 20.

Admissibility ofdelay possession charges at interest: The complainant is seeking delay However, proviso to section 1B provides that does not intend to withdraw from the pro. m the pro.iect, the promoter, interest for every month of del over of possession, at such rate as may be pr been prescribed under rule 15 of the rules. reproduced as under: Rule 75.

Prescribed rate of interest- section 72, section 7B and sub-section subsection (7) of section 191 (1) or the purpose of proviso to section 12; secti sub-sections (4) and (7) ofsection 19, the,,inte, rate prescribed" shall be the Stote Bank of tnd marginal cost oflending rqte +2ak.: 21..

Provided that in case the State Bqnk of Indio cosl of lending rote IMCLR) ts not in usp, ] replaced by such benchmark lending rotes State Bqnk oflndia may fix ftom time to time to the general public, The legislature in its wisdom in the subordinat the rule 15 of the rules has determined the interest.

Consequently, as per website ofthe Sta https://sbi.co.in. the marginal cost of lending rat Page 17 of26 int no.

5050 of2023 evade the liability prive the allottees on.

This is just to dominant position reement and the dotted lines. rescribed rate of ssession charges. here an allottee(sl e shall be paid, by y, till the handing scribed and it has ule 15 has been iso to (4) and 18; and otthe highest rginql shall be hich the lending legislation under rescribed rate of Bank of India i.e., (in short, MCLRI HARERA MGURUGI?AM as on date i.e., 26.07 .2024 is 9%0.

Accordingly, ofinterest will be marginal cost oflending rate 22.

The definition of term 'interest, as defined un the Act provides that the rate of interest allottee by the promoter, in case ofdefault, shall of interest which the promoter shall be liable case of default.

The relevant section is reprodu "(za) "interest" means the rates of intere po. promoter or the allottee, os the case may be.

Explonation. -For the purpose ofthis clouse_ (i) the rote ofinterest chlrgeable from the ol promoter, in case of default, shall be equal to interestwhich the promotersholl be liable to p1y in case ofdefault; (ii) the interest pqlable by the prcmoter to the ol be from the e from the ddte the promoter received the a part thereof till the date the amaunt or part interest thereon is refunaled, and the interest allottee to the promoter sholl be from the dote defaults in poymentto the promoter ti the date i On consideration of the documents availab submissions made regarding contravention ofp the authority is satisfied that the respondent is the section 11(4J(aJ of the Act by not handing the due date as per the agreement.

By virtue buyer's agreement executed between the partie the subject apartment was to be delivered withi eight months from the date of execution of 15.03.2016.

Accordingly, it is the failure of the promoter to and responsibilities as per the apartment bu 24. hand over the possession within the stipulated p Page 18 of 26 int no.

5050 0f 2023 he prescribed rate 2o/o i.e., 77o/o. er section 2(zal of argeable from the be equal to the rate pay the allottee, in d below: ble by the by the e rate of allottee, ttee shall and e by the nt or any 'e allottee is paid;" e on record and isions ofthe Act, contravention of ver possession by f clause 10 of the , the possession of a period of forty- ent i.e., till lfil its obligations r's agreement to riod.

Accordingly, HARERA ffi,GURUGRAII the non-compliance of the mandate contained read with proviso to section 18[1) of the Ac respondent is established.

The respondent delayed possession charges on the amount paid to it after adjusting amount already paid if an ofpossession i.e., 15.03.2016 till valid offer of months at the prescribed rate of interest i.e., month ofdelay as per proviso to section 1B(1) rule 15 ofthe rules.

25.

Since as per averments made by respondent not intended to be handed over but to be put party.

Hence no direction w.r.t. handover of given.

G.llI Direct the respondent to execute the sal said unit in favour ofthe complainants.

26.

As per section 11(al(fl and section 17(1) of promoter is under obligation to get the convey in favour of the complainant. mplainant.

Whereas as per s Act of 2016, the allottee is also obligated to registration of the conveyance deed of the unit Since the occupation certificate of the buil obtained.

The respondent is directed to get th executed within a period of three month occupation certificate.

27.

G.IV.

Direct the respondent to make payment assured returns along u/ith interest @18%o on d int no.

5050 of 2023 in section 11(4)(aJ on the part of the is directed to pay by the complainant from the due date ossession plus two llo/o p.a. for every the Act read with e subiect unit was n leased out to 3rd possession can be deed of the above .e Act of 2016, the nce deed executed ion 19(1lJ of the articipate towards n question. ing has not been conveyance deed from receipt of on account of the lay.

Page 19 of 26 HARERA M GURUORAI\i ln the present matter the complainant purcha block e admeasuring 500 sq. ft. in the project City Centre located in sector 93, Gurugra consideration of 120,00,000/-.

The complai agreement was promised by the respondent to w.e.f. from execution of agreement i.e., j.5.03.2 ofthe building.

The respondent paid an amount 01.09.2018.

The complainant is here before th assured returns as promised in the agreement. the issue regarding assured return is pendin before the Hon'ble High Court of punjab & Hary 'Vatika Limited vs.

Union of India and Anr., i of2022 but vide order dated ZZ.ll.Z0 2 3 the Ho cleared that the authority is at liberty to pro going matters that are pending with them.

29.

While elaborating upon the said issue it would some light upon the provisions ofthe Act, 2016. the present matter the respondent agreed construction ofthe said building within 4g mon the execution ofthe agreement i.e., till 15.03.20 was the leasing arrangement between the p physical possession was ever to be handed over the said property shall be put on lease by the res completing the construction works and re certificate from the competent authority. authority.

Si document place on record which shows that the Page 20 of26 Compl int no.

5050 of 2023 d a unit on 2nd floor mely Vatika Inxt for a total sale ant through that ay assured return L2 till completion f<25,45,4A4/-ti authority seeking Ithough as on date for adjudication na in the matter of CWP No.

26740 'ble high court has further in the on- correct to throw As per the facts of to complete the s from the date of 6.

Although there es therefore, no to the allottee but ondent only after ,ving occupation ce there is no occupation of the HARERA M GURUGRAI/ said proiect has been received nor it has been 30.

The concept of'Assured Return, has no place fRegulation and Development) Act of 2016.

Fu 18 the allottee is only entitled for interest on every month of delay.

This relief does not fall provisions ofsection 18 ofthe Act.

2016.

Moreo promoter stopped paying the assured return force of BUDS Acl 2019.

The counsel for the it had sent a communication to the complai that due to the implications and amendments i suspended paying assured return, further a sent on 30.11.2018 which is at page 50 of respondent shall not be able to further pay assu a communication was sent in December 201g of the reply regarding the discontinuation However, the counsel for the complainant stat a legal notice on 28.08.2019 which is C2 at p assured committed return.

The complainant years and ifat all his rightful interest/assured r paid by the respondent he should have knocke court and law during those four years which h on 02.11..2023, he filed the said complaint se delayed possession charges and assured return. therefore the delay on part ofthe respondent is allottee is entitled for delay compensation as p the Act, 2016. int no.

5050 of 2023 ut on lease till date stablished and the r the provisions of in the Real Estate er, as per section id up amount for thin the ambit of r, the respondent after coming into ondent stated that nt apprising them the Act, they have mmunication was e reply t e reply that the ed return.

Further hich is at page 53 f assured return. that they had sent e 44 demanding pt mum for four urn was not being the doors of the didn't.

Thereafter king the relief of Hence now after a Page 2l of 26 HARERA ffi GURUGRAI\i gap of more than four years allottees claim assured return cannot be entertained/deli return is not covered under any of the provis also not a statutory right of allottee although charges is a statutory right as per proviso of s, 20t6.

31.

Although section 11(4)(aJ obligates prom obligations as per agreement for sale, but th given in the agreement for sale/BBA which are the principle of natural justice and which model agreement format prescribed in the rather the terms which are violative of/contra given in model agreement, prescribed in rules o entertained because cause ofaction has arisen a force the act of 2016 and publication ofrules by When section 11(4)[a) talks about agreement f talks about prescribed agreement for sale as pe and not otherwise.

33.

The Haryana Real Estate (Regulation and develo has already prescribed format of agreement annexure A and in which there is no clause of as been clearly mentioned in section 89 of the Act has an overriding effect in case of any i definition ofagreement to sell as given in sectio Goods Act, 1930 shall be overruled by provisio Page 22 of 26 int no.

5050 of2023 f seeking relief of rated as assured ns of RERA and is elayed possession ion 18 of the Act, ter to tulfil all conditions terms ethical or beyond e no place in the es of HREM and ctory to the terms HREM can not be er the coming into HRERA, r sale, certainly it rules of each state ment) rules 2017 for sale which is ured return. [t has f 2016 that RERA nsistency.

Hence 4(3J ofthe Sale of of section 2(cJ of HARERA MGURUGRAM the Act of 2016 and further to that detailed in Real Estate (Regulation and developmentl rul 34.

It has been observed that the Uttar pradesh R Tribunal [UPREATJ while adjudicating an app Gupta Vs.

Gupta Vs.

One Place lnfrastructures Pvt.

Ltd. (App order dated 29.09.2022" has held that the issu does not fall within the ambit ofthe act of 201 appeal filed by the appellant/allottee, The rel ofthe Hon'ble UP Appellate Tribunal is reprodu reference: "70, ln our considered view the assured return or charges are independent comfiercial arrangen\ the parties which sometime a promoter/devela order to attroct buyers/investors or users who either in under construction or pre-launched/n projects, The cammercial effect would genera transoctions having proft as their moin aim. threads together, therefore, so long as an amoun under a reol estate agreement, which is done wi the main oim.

Such ogreement between the d home buyer would hove the "commercial elfect" parties hove "commerciol" interest in the som estate developer seeking to moke a prcfit on the oportment, ond the flat/aportment purchaser p the sale of the apartment.

Whereas the promulgation of the Real of Real Estate (Requ p urc h ase of flat/ apartmen t/ p \ot....." 35.

Moreover, the issue of assured return is me Development) Act 2016 aims to create and immovdble proper\t in eficient and transporent to protect the interest of the consumers in the sector and notfor the profit purposes.

10.1, On the bosis ofthe above, we ore of the consi that there is no provkion undet the Scheme of examining and deciding the issues rcIating to the of oss red return/committed chorges or comm in an allotment letter/builder buyer og obligation which the respondent was obligate Page 23 of 26 int no.

5050 of 2023 rule 8 of Haryana 201.7 .

Estate Appellate al titled as " Meena al No.211 of2022) of assured return and dismissed the t extract of order d herein for ready mitted between offers, in ay invest is 'raised' profrt as iecing the oper and s both the the real le of the ting by object of ly tion ond re sale of estate ered view 2016 for lonS al effect nt for to a contractual perform but is HARERA ffi GURUGRAI/ not a violation ofany pr n ofany provisions ofthe Act of20 authority observed that the present relief w.r. complainant is not maintainable for two fold complainant has failed to prove as to what pro rules & regulations made thereunder has b respondent herein.

Secondly, the issue of ass basis of which the present complaint has complainant is not in the natqre of the delay po covered under section 1g oithe Act, 2016.

The being paid by the respondent to the complai before the due date of possession which complainant has invested his money to get retur nor in the RERA rules, ZO77.The allottee can s competent court/commercial court, matter of as a commercial dispute. which is merely a commercial transaction Moreover, the assured return is neither defined 36- In the light of the aforesaid provisions and abo the present relief stands dismissed as liberty to the complainant to approach redressal of his grievance.

H.

Directions ofthe Authority 37.

Hence, the authority hereby passes this ord following directions under section 37 of th int no.5050 0f2023 6.

Accordingly, the AR sought by the sons.

Firstl, the ions ofthis Act, or n violated by the ed return on the een filed by the ession charges as sured return was t allottee much early shows the on monthly basis between them. n the Act of 2016 k this relief in the red return being e stated reasons, not m tainable with a the appr priate forum for and issue the Act to ensure age 24 of 26 b. d. e.

HARERA GURUGRAM compliance of obligations cast upon the p as per the function entrusted to the authority under secti 34(f): a.

The respondent is directed to pay delayed charges on the amount paid by the complainant it after adiusting amount already paid if any, from the due of possession 15.03.2016 tillvalid offer ofpossession pl no.5050 of2023 prescribed rate of interest i.e., I'J-o/o p.a. two months at the r every month of charges delay as per p 18(1) of the read with rule 15 ofthe rules.

Since the obtained. obtained. the b has not been to the conveyance deed from receipt of occu The from the comp the flat buyer's agreement.

The rate of from th allottees by the at the prescribed rate i.e., is the same rate of liable to pay the allottees, in case ofdefault i.e., the delayed as per section z(za) ofthe Act.

The complainant is directed to pay ou dues, if any, after adrustment of interest for the delayed Page 25 of 26 38.

39.

Datedt 26.07 .202 HARERA GUl?UGRANI The respondent is directed to pay arrears within 90 days from the date of order of 15(2) ofthe rules.

This decision shall mutatis mutandis apply to 3 of this order.

Complaint stands disposed of.

True certified be placed in the case file of matter, 40.

File be consigned to HARERA GURUGRAM interest accrued order as per rule mentioned in para of this order shall Kumar Arora) Member nt no.5050 of2023 w Page 26 of26