SATYAWATI BHARDWAJ vs VATIKA LIMITED

ffiHARERA #h"enuCRAl,l Complaint No.

4638 of 2023 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Vatika Limitecl Regd. office: Irlat no.

621,A,6th Floor, Devika Towers, 6, Nehru Place, Irlew Delhi - 110019 Corporate office: Vatika Triangle, Block A, Sushant Lok, Gurgaon- 1,22Ct022 Satyawati Bhardwaj Resident of: Ei-3 54A,1't floor, Sushant Lok-1, Gurugram, Haryana -1,22022 - -'- -'o- ---- J ------ Versus Mr.

Chaitanya Singhal [Advocate) Ms.

Ankur Berry (Advocate) CORAM: Shri Ashok Sangwan APPEARANCIi: Complaint no.

Date of filing complaint First date of hearing Date of decision 4638 of 2O23 25.L0.2023 3t.oL.zo7,4 24.07.2024 Complainant Respondent Member Complainant Respondent ORDER 1,.

The present complaint has been filed by the complainant/allottee under Section 3l- of the Real Estate fRegulation and Development) Act, 2016 (in short, the Act) read with Rule 28 of the Haryana Real -Estate (Regulation and Development) Rules, 2017 [in short, the Rules) for violation of Section 11[4) [a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities, and functions under the provisions of the Act or the rules and regulations made there under or to the allottee as per the agreement for sale executed inter se' page 1 of 24 y' A.

2. ffiHARERA ffi" GURTJGRAM Complaint No.4638 of 2023 Unit and Proiect-related details The partiiulars of the project, the details of sale consideration' the amount paid by the complainants, the date of proposed handing over of the possession, and the delay period, if any, have been detailed in the following tabular form: Details Particulars Sihi, ShikohPur, SikanderPur Badha, and Kherkidaula, Sector 81-85, Gurugram (3.etocated from Vatika Trade Centre ia. addendum to BBA dated $o4.5zorr, annexed at Page 50 of qfrtita INXT CitY Center", village complaint Name and location of the project 1,0.72 acres Proiect area Gommereialqqrylg>r Nalrure of the plos! tr ;ffiln^ted 14.06. ted 14.06.2008 valid upto 13.06.2018 OTCP ti..nse no. and validitY M/s Trishul Industries Name of the Licensee Not Registered RERA registeredlnot resistered and validity status 03.11.2009 19 of comPlaint Date of buYer's agreement 03.11.2009 [Page 35 of comPlaint] Addendum to BBA [Provision as to Payn]ent of Assured returns addedJ 30.11.2011 [Page 50 of complaint) Centre Addendum to BBA (Relocation from ]a!ka irade Centre to INXT CitY 127 , lst floor, Block A 53 of comPlaint Unit no.

1000 sq.ft.

Paee 53 of comPlaint Unit area admeasuring Wirit n* Arrn qllotted to You with inrouwillbe Paid e! ldditiong! an assured monthly return of Rs65/- per sq. fL However, during the cours-e of construction tilt such time the building in which your unit is situated offered for Assured return and lease rentals clause PageZ of 24 ffiHAREB& ffi-EUNUGRAM Complaint No.4638 of 2023 return of Rs.1"3/- per sq. ft.

Therefore, the return payable to you shall be as follows: This addendum forms an integral part of the builder buyer agreement dated 13.11..2010. a)Till completion of the building Rs.78/'per sq. ft. b) Afier comPletion of the building Rs,65/'Per sq. ft.

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

03.77.2009 on a monthlY basis before the 75th of each calendar month. ::,The obligation of the developer shall be :l$:''lease the premises of which your fipt it pqrt @ Rs.65/- per sq. ft. ln the nluqtity the achieved return being complaint .: .higher or lower thqn Rs.65/- per sq'ft' the foltowing would be aPPlicable: i' 1.) If the rental is less thqn Rs'65/- per sq. ft., then You shall be refunded @Rs' I 13/' Per sq' ft' for everY Rs.1/- bY which the aihieved rental is less than Rs.65/' Per sq. ft.

I Zl If the achieved rental is.lriO.ler than Rs.65/- Per sq. fi', then 500/o of the increqsed rental shall qccrue to You free of anY t ',,''' edditional sale consideration' '',,' -;Tlowever, you will be requested to pay additional sale consideration @Rs.1 13/- Per sq. /- Per sq. ft' for every rupee of additional rental achieved in the case of balance 500/o of the increased rentals"' (Addendum to BBA at Page 35 of Rs.28,47,000/- [As alleged by respondent at page 31 of Assured Returns received till September, 2018 Rs.30,00,000/- (As per clause 2 of BBA at Page 21' of complaint Total sale consideration Page 3 of24 HARERA W- GURUORAM Complaint No.

4638 of 2023 B.

Facts of the complaint: 3.

The complainant has made the following submissions: aJ That the respondent through prUti. advertisement enticed the complainant to invest their hard-earned money in its project "Vatika Trade Centre" and made -tail'claims and promises of high quality production and timely noslr.e$st9ly' b) That being lured by such tait cidtds ana promises of the respondent, the booked,a commercial unit in the respondent's project "Vatika Trade Centre'f on 24.10'2009' d between the Parties on c) That a builder buyer agreement was execute .

03.11 .2OOg.That the complainint'was allotted unit no' 52Z,located on 5th floor, tower-A, having super area admeasuring 1000 sq' ft' for a total sales consideration of Rs.30,00,000/-' d) That the complainant had paid the entire sales consideration of Rs.3C),00,000/- to the respondent on the date of execution of builder buyer agreement. lause 2 of the agreement, the respondent had committed to construct and deliver the possession of the unit within a period of 3 years from the date of execution of the builder buyer agreement which comes to 03.1 1,.2012.

However, the respondent failed to construct and hanclover the possession of unit on time' f) That as peT "ANNEXURE-A" of the agreement titled as "Addendum to the Agreement" dated 03.11.2009, the complainant was promised to get an assu red monthly return of Rs.7B/- per sq' ft' (till offer of possession) and thereafter Rs.

65/-per sq. ft. per [after completion of the building)' / Page 4 of24 Rs.

4 of24 Rs.30,00,000/- [As per clause 2 of BBA at Page 21, of complaint Amount paid bY the complainants Not obtained Occupation certificate 29.02.2016 (Page 47 of reply) Letter as to comPletion of construction sent bY respondent to comPlainant ffiHARERA ffi- GURUGRAM Complaint No.4638 of 2023 g) That on 27.07.201.1,, the respondent sent a letter to the complainant regard;(ng "Relocation of Commercial Project- Vatika Trade Centre." hJThat on 17.08.2011. the complainant entered into an "Addendum to the Builder Builder Agreement" with the respondent according to which the origina.lly booked unit of the complainant in project "Vatika Trade Centre"'was relocated in respondent's another project "Vatika INXT City Centre," In terms of the addendum most of the terms of the builder buyer agreement remained the same except for a few changes in the recital clause. i) That the respondent inforrypg',fu complainant that they were now t. allocated unit no.

127 on,6r 1st flobr, block-A admeasuring 1000 sq. ft. in project "Vatika INXT City Centre." j) That on 17.09.201,3, the respondent sent a letter to the complainant regarding "Completion of construction work of block B of Vatika INXT lding is comPlete and is City Centre." The letter said that the bui operational and ready for occupation.

It was further stated that the responLdent is in active discussions with a number of prospective tenants for the property and expect to lease out substantial area in the building in due course. k) That the respondent told the complainants that their building is complr:te and further stated that that as per the terms and conditions of the builder buyer agreement (Annexure), the commitment charges shall be revised to Rs.

65/- per sq. ft. per month from the date of building getting operational. ll That tlhe respondent has not obtained the occupation certificate of the said t6wer till date. till date.

The respondent cannot offer possession or say that the building is operational without obtaining the occupation certificate.

That in the lieu of the above stated letter the respondent had wrongly reducr:d the monthly assured return payable to complainant from Page 5 of24 HARERA ffi-GURUGI?AM Complaint No.

4638 of 2023 Rs.7B/- to Rs.65/- per sq. ft. per month without getting the occupation certificate and without offering possession of unit to the complainants.

The re:spondent is liable to pay a monthly assured return of Rs.7B/- per sq. ft. till the offer of possession after receipt of occupation certificate and not Rs.65/- per sq. ft per month.

The respondent is also liable to pay the difference of Rs.13/- per sq. ft. per month along with the interest accruerl upon such payment as per the HARERA Rules ,201.7. m) That from 01..11,.2010 till 28.02.201,6 the respondent paid a monthly assurerl return of Rs.

7B/- per,:,,,q, ftr per month to the complainant. n) That from 01.03.2016 to ,Sr o+,zo18 the respondent paid "reduced :- month)y assured returnl'from RS.

7B/- to Rs.

65/- per sq. ft. per month to the complainant. ' o) That from May 201,8 till date the respondent has not paid any amount toward s assured return to the cornplainant. p) That on 31.10 .20LB,respondent sent an email to complainant regarding the "suspension of Assured Return Scheme".

The email stated: "ln light of the introduction of REIJ.

Act 20L6 which not only regulates the sector but also .stipulates conditions attached to marketing, selling and deliveri4g properties based on carpet area as defined under the Act and after the coming of Banning of Unregulated deposit schemes A;ct.2019, the Respondent will not be selling any properties with commitment of assured returns or that pays returns of any kind.

All properties will be sold on a down payment basis, possession linked basis or construction linked basis. ked basis." q) That the construction of the unit has been badly delayed which is evident from the fact that as per clause 2 of the agreement, the respondent had promised to deliver the possession of unit within a period of 36 months from the date of execution of builder buyer agreernent which comes to 03.1,1,.201,2, however till date the respondent has still not completed the project and has not received "Occupation Certificate" for its project.

Page 6 of24 ffiHARERA ffi" eunuennHr Complaint No.

4638 of 2023 r) That thre respondent had also wrongly demanded payments on account of cornmon area maintenance charges on 07.01,.2023 by sending a demand notice of Rs.12,1,4,613/-, prior to receiving occupation certificate and without offering possession to the complainants till date. s) That as per the details of license obtained by respondent from Director Generurl, Town and Country Planning Department, Government of Haryana (DTCP), the respondent had purchased land measuring 1-0.718 Acres at village Sikhopur, Tehsil Sohna and District Gurugram.

License bearing no.

1,22 of 2008 fated 14106 2008 valid up to 14.06.20L6 for setting; up commercial .rbo flffi' and to develop/construct the commercial complex on the'Said lend.

That as on date the said license of the res;pondent stands exPired. t) That the respondent had not re$istered its project "Vatika INXT City Centrer" with RERA which contraVenes the provision of Section 3 of RERA ,Act,201.6.

Section 3(1) of the Haryana Real Estate [Regulation and DevelopmentJ Act, 2016 provides as under: ,,Provided that proiects that are ongoing on the date of the c ommencement .,.oJ thg-Act and fortwhich the co mpl eti o n c ertifi cate has notbeen issue,d, th'€ promoter shall make an application to the Authority for registration of the said project withirt a period of 3 months from the date of c;ommencement of this Act"' Section 3(2) (b) of the Halyana Real Estate [Regulation and DevelopmentJ Act, 201,6 provides as under: "No registration istration of the real estate project shall be required where the promoter has received completion certificate for a real estate proiect prior to commencement of the Act"' Thus, the project of the respondent is an on-going project since the respo,ndent did not have completion certificate and is liable to get the projer:t registered under RERA Act,2016 which the respondent failed to do. u) That based on the above it can be concluded that the respondent miserably failed in completing the construction of the building and in Page7 of24 ffiHARERA --ffi.* GURUGRAM Complaint No.

4638 of 20?3 C.

4. handling over the possession of the unit of the complainants in accordance with the agreed terms and has committed grave unfair practices and breach of the agreed terms. v) That the facts and issues of the present complaint are completely identical to judgment dated 04.02.2022 titled "Mahesh Chandra Saxena versus Vatika Limited" in Complaint no.

443 of 2021passed by Hon'ble RERA ,Authority, Gurugram wherein the Authority passed an order directing the respondent to pay assured returns along with inteiest '1'","',f':' tt ' Relief sought by the complaihant: The comp lainant has sought the following relief(s): i.

Direct the respondent to pay the monthly assured return @ Rs.7B/- per sq. ft. per month from May 2018 till date. ii.

Direct the respondent to to pay the difference of the assured return amount of Rs.13 per sq. ft. per month i.e. {-Rs.7B/- minus Rs.65/-} from March 2016 till April 2018. iii.

Direct the respondent to pay interest upon the unpaid amount of assurerl return. iv.

Direct the respondent to pay monthly assured rental of Rs.

65/- per sq. ft. per month after receipt of occupation certificate and making valid offer of possession to the complainant. v.

Direct the respondent to withdraw lle common area maintenance charges and interest charges upon it till the time occupation certificate is recelved and possession is offered to the complainants. vi. nants. vi.

Initiate penal proceedings under section 59 of RERA Act and impose L00/o penalty of the over-all cost of the project for non-registration of project under RERA.

5.

On the date of hearing, the authority explained to the respondent-promoter about the contraventions as alleged to have been committed in relation to Section 1,1(4) of the Act to plead guilty or not to plead guilty.

D.

Reply by the resPondent.

6.

The respondent contested the complaint on the following grounds vide its reply dated 0L.02.2024 andwritten submissions dated 20.06-2024 Page B of24 HARER& W-GURUGRAM complaint No.

4638 of 2023 a) That the complainants have got no locus standi or cause of action to file the present complaint, same being based on an erroneous interpretation of the provisions of the Act as well as an incorrect understanding of the terms and conditions of the BBA dated 03.11,.2009. b) That the present complaint is not maintainable or tenable in the eyes of the law as the reliefs being claimed by the complainants cannot be said to fall within the realm of jurisdiction of this Authority.

Upon the enactment of the Banning of Unregulated Deposit Schemes Act,2019, the 'Assured Return' or any'Committed R.11urn5' on the deposit schemes have been pany having taken no registration from the banned.

The resPondent com. ., :,:::l rnnot run, Operate, and continue an assured return scheme.

Further, the enactment of BUDS read with the companies Act,20L3 and the Companies (Acceptance oi Deposits) Rules, 20L4, resulted in making the assured return/committed return and similar schemes as unregu- lated schemes as being taken within the definition of''Deposit'' cJ That thr: assured return scheme proposed and floated by the respondent has become infructuous due to operation of law, thus the relief prayed for I the oPeration of law' As a in the present complaint cannot sUrVive due tc matter of fact, the respondent duly paid an amount of Rs'28,47,000/- till May 2018 d) That the commercial unit of al unit of the complainant was not meant for physical possession as the said unit was only meant for leasing purposes fClause 32 - Leasing Arrangements) (clause 32.1 (dl 'Deemed Possession') for return of investment.

Furthermore, the said commercial space shall be deemerl to be legally possessed by the complainant' Hence, the unit bookecl by complainant is not meant for physical possession and rather for conrmercial gain onlY. e) That ttre complainant is seeking relief of assured return, and Authority has no jurisdiction to entertain the present complaint as has been decided Page 9 of24 ffiHARERA ffi- GUIILJGRAM Complaint No.4638 of 2023 in the complaint case no.1.75 of 2OlB,titled as "Sh.

Bharam Singh and Ors' Vs.

Venetian LDF Projects LLP" by the Authority itself. f) That the Hon'ble High Court of Punjab and Haryana in CWP No.

26740 of 2022 titled as "Vatika Limited Vs.

Union of India & Ors.", took cognizance in respect of the Banning of Unregulated Deposits Schemes Act,2019 and restrained the Union of India and State of Haryana from taking coercive steps in criminal cases registered against company for seeking recovery against deposits till the next date of hearing. g) That the respondent promoter hai always been devoted towards its cus- rrs k0pt all its allottees updated regarding tomer etnd have over the Yee : , amendments in law, judgmenti paSsed by Hon'ble High Courts and status of development activities in and around the project.

Vide e-mail dated 31.10.201-8, the respondent sont a dommunication to all its allottees qua the suspension of all return-based sales and further promised to bring the detiailed information to all the investors of assured return-based pro- jects.

Irr furtherance to the said email, the respondent sent another e-mail dated 30.11.2018 furthef detailing therein the amendments in law re- EBI Act, eitt I{o. eitt I{o.

B5 [Regarding the BUDS Act) and other stat- utory c:hanges which led to stoppage of all the return based/ assured / mmunication of 29'02'201'6 committed return based sales.

The e-mail co also confirmed to the allottees that the project was ready and available for leasing.

That the issue regarding stoppage of assured returns f com mitted return and reconciliation of all accounts as of f uly 2019 was also communicated with all the allottees of the concerned project.

Further the respondent intimated to all its allottees that in view of the legal changes and formation of new laws the amendment to BBA vide Addendum would be shared with all the allottees to safeguard their interest' That on 30.1.2.2018 the allottees in the project were sent email regarding stop- page <lf assured rentals and option was given that the allottee could Page 10 of24 ffiHARERA ffi"- ouRUGRAM Complaint No.

4638 of 2023 choose to shift to another project registered for getting the committed returns benefit, that the complainant chose to sit over his right for last 6 years cannot pray for relief of assured return as the relief is time barred.

Thereafter on 25.02.2020, the respondent issued communication to all its allottees regarding ongoing transaction and possible leasing of block A, B, D, E and F in the project "Vatika INXT City Centre'" hJThat complainant has instituted the present false and vexatious com- plaint against the respondent who has already fulfilled its obligation as defined under the BBA dated 03.t'{i2009 and issued completion of con- )r on Zg.O2.2O16itf r for the fair adjudication of griev- rd by the compliinants, detailed deliberation by leading the ruell as cross-examilation is required, thus only the civil court hras jurisdiction to aeir"*ith'the .rr.i requiring detailed evidence for proper and fair adjudication' i) That thte assured return was received by the complainants till the year n control of 2o1,B. of 2o1,B.Further due to external circumstances which were not i the respondent, consti'uction got deferred.

That even though the re- spondent suffered from setback due to external circumstances, yet the respondent managed to complete the construction and duly issued letter of completion of construction on 29 '02'2016' jJ That regarding the issue of maintenance, in-terms of the allotment Ietter and BBA dated Oi.f f .ZO09, the respondent was well within its rights to engage appropriate agency for maintenance of the project and liability of payment of the maintenance charges would rest upon the allottee in ab- sence of tenant.

Thus, the complainants are bound to pay all such charges agreed upon at the time of executing the BBA.

That admittedly the con- struction of the building, where the unit of complainants is located com- pleted in 2018 and thereafter maintenance agency was duly appointed for regular upkeep of the proiect' page 11 of 24 ffiHARERE ffi"ouRUGRAM Complaint No.

4638 of 2023 k) That even though the assured return scheme was stopped in the year ZOlB,yet the complainants chose to sit fill2023, i.e., till the filing of the present complaint.

The delay in claiming the relief of recovery of dues on account of assured return non-payment, suffered from severe delay of 5 years. l'hat the onus is upon the complainants to show that the alleged cause of action, i.e., non-payment of assured returns arose in 2018 and yet the complainants did not file any such claim.

That the inaction of the complainants is a patent acquiescence, and they cannot demand recovery of arre:rrs after a massive de.lay. of" 5 years' T. copies of' all the relevant docuilldis"hrve been filed and placed on the : record.

Their authenticity is not,in dispute Hence, the complaint can be decided based on these unaisput.d,,uoirments and submission made by both the parties.

E. furisdiction of the authoritY: B. horitY: B.

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

E.

I Territorial iurisdiction g.

As per notification no. t/gZlTTtZ.ifCp dated 14.1'2.2017 issued by Town and country Planning Department, the jurisdiction of Real Estate Regulato,ry Authority,'Gurugram shatt be the entire Gurugram District for all purp6ses with offices situated in Gurugram' In the present case' the project in question is situated within the planning area of Gurugram district' Therefore, this authority has complete territorial jurisdiction to deal with the present comPlaint.

II Subiect matter iurisdiction 10. secrion 11t4lta) or tne Act, 2016 provides that the promoter shall be responsible to the allottee as per the agreement for sale.

Section 11[4) [a) is reprodu.ced as hereunder: Section 71ft)(a) Page12 of24 ffiHARERA ffi"-cl.ltUcRAM Complaint No.4638 of 2023 Be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulations made thereunder or to the allottees as per the agreement for sale, or to the association of allottees, as the case may be, till the conveyance of all the apartments, plots or buildings, as the case may be, to the ollottees, or the common areas to the association of allottees or the competent authority, as the case may be; Section 34'Functions of the Authority: 34aoftheActprovidestoensurecomplianceofthe obligations cast upon the promoters, the allottees and the real estite agents under this Act and the rules and regulations made thereunder.

11.

So, in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non-compliance of obligations by the promoter leaving aside compensation which is to be decided by the adjudicating officeT.i{Rursu,gd by the complainants at a later stage. .

F.

Findings on the obiections raised by the respondent: F. ondent: F.l obiection regarding maintainability of complaint on account of comPlainant being an investor' 12.

The respondent took altand that the complainant is an investor and not the of the Act and a consunler and therefore, he is not entitled to protection entitled to file the complaint under section 31 of the Act' 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 careful perusal of all the terms and conditions of the buyer's agreement, it i: revealed that the complainant is a buyer, and has paid a considerable amount to the respond,ent-promoter towards purchase of unit in its project' 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,,inrelationtoarealestateprojectmeanstheperson towhomaplot,apartmentorbuilding,astheCosemaybe,has beenallotted,sold(whetherasfreeholdorleasehold)or otherwise transferred by the promoter, and includes the person who subsequeitly acquires the said allotment through sale, transfer or otheiwise'but does not include a person to whom r./ Page 13 of24 ffiHARERA ffi.-cLJRtJcRAM Complaint No.

4638 of 2023 such plot, apartment or building, as the case may be, is given on rent;" 13.In view of' the above-mentioned definition of "allottee" as well as all the terms ancl conditions of the buyer's agreement executed between the parties, it is crystal clear that the complainant is an allottee as the subject unit was allotted to him by the promoter.

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 an "investor".

Thus, the contention of the promoter that the allottee being an investor is not entitled to protection of this Act F. his Act F.II Obier:tions regarding force Mateure.

14.

The respondent-promoter has raised the contention that the construction of the unit of the complainant has been delayed due to some force majeure circumstances.

However, the respondent has failed to give details as to what force ma'ieure circumstances surfaced before it.

Otherwise too, the respondent should have foreseen any such situations.

Thus, the promoter respondent cannot be given any leniency based on aforesaid reason, as'it is a well-settled principle that a person cannot take benefit of his own wrong.

F.III Pendency of petition before Hon'ble Puniab and Haryana High Court regarding assured return 15.

The respondent hAs iaiSed an objo-tion that the Hon'ble High Court of Punjab & Haryana in CWP No.2674,0 of 2022 titled as "Vatika Limited Vs.

Union of India & Ors.", took the cognizance in respect of Banning of Unregulated Deposits Schemes Act, 201,9 and restrained the Union of India and the litate of Haryana from taking coercive steps in criminal cases registerecl against the Company for seeking recovery against deposits till the next date of hearing.

16.

With resprect to the aforesaid contention, the authority place reliance on order dated 22.1,1,.2023 in CWP No.26740 of 2022 [supra), whereby the Hon'ble Punjab and Haryana High Court has stated that- Page 14 of 24 ffiHARERA ffi"- eunuennrur Complaint No.

4638 of 2023 "...there is no stay on adiudication on the pending civil appeals/petitions before the Real Estate Regulatory Authority as also against the investigating agencies and they are at liberty to proceed further in the ongoing matters that are pending with them.

There is no scope for any further clarification." Thus, in view of the above, the authority has decided to proceed further with the present matter.

G.

Findings on relief sought by the complainant.

G.I Direct the respondent to pay the monthly assured return @ Rs.7B/- per sq. ft. per month from May 2018 till date.

G. l date.

G.II Direct the respondent to to pay the difference of the assured return amount of Rs.13 per sq. ft. per month i.e. {-Rs.7B/- minus Rs.65/-} from March 2OL6 till APril 2018.

G.III Direct the respondent to pay interest upon the unpaid amount of assured return.

G.lV Direct the respondent to pay monthly assured ren_tal of Rs.

65 /- per sq. ft. per month after rCceipt of occupation certificate and making valid offer of possession to the complainant' 17.

The above-mentioned reliefs sought by the complainant are being taken together as the findings in one relief will definitely affect the result of the other relief and the same being interconnected.

18.

The complainant is seeking unpaid assured returns on monthly basis from the respgndent as per the agreed terms.

It is pleaded that the respondent has not complied with the terms and conditions of the agreement.

Though for some time, the assured returns were paid but later on, the respondent refused to pay the same by taking a plea of the Banning of Unregulated Deposit Sichemes Act,2019.

But that Act 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 sectionz 4)[iii) of the above-mentioned Act, However, the plea of respondent is otherwise and who took a stand that though it paid the amount of assured return up to the April 201,8 but did not pay assured return amount after coming into force of the Act of 201,9 as the same was declared illegal.

Page 15 of24 ffiHARERA ffi* GURuoRAM complaint No.4638 of 2023 19.

The Act of 201,6 defines "agreement for sale" means an agreement entered into between the promoter and the allottee [Section 2[c)].

An agreement for sale is defined as an arrangement entered between the promoter .and allottee w'ith freewill and consent of both the parties.

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

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

The different kinds of payment plans were in vogue and legal within the meaning of the agreement for sale.

One of the integral part of this agreement is the transaction ,of assured return inter-se parties.

The "agreement for sale" after cominf'intb force of this Act [i.e., Act of 201,6) shall be in the prescribed fonm as pen rules but this Act of 2016 does not rewrite the "agreement" entered between promoter and allottee prior to coming ipto force of the Act as held by the Hon'ble Bombay High Court in case Nee lkamal Realtors Suburban Private Limited and Anr. v/s Union of India & Ors,, (Writ pbtition No.

2737 of 2077) decided on 06.72.2077.

Since the agreement defines the buyer-promoter relationship therefore, it can be sarid that the agreement for assured returns between the promoter and allottee arises out of the same relationship.

Therefore, it can be said that the real estate regulatory authority has complete jurisdiction to deal with ontractual relationship arise out of agreement assured return cases as the cr for sale gnly and between the same parties as per the provisions of section 11t4) [a) of the Act of 2Ot6 which provides that the promoter would be responsible for all the obligations under the Act as per the agreement for sale till the execution of conveyance deed of the unit in favour of the allottee' 20.

While taking up the cases of Brhimieet & Anr.

Vs' M/s Landmark Apartmtznts Pvt.

Ltd. (complaint no 747 of 201s), and sh.

Bharam singh &Anr.

V,s.

Venetain LDF Proiects LLP', (supra), it was held by the authority that it hirs no jurisdiction to deal with cases of assured returns.

Though in Page 16 of24 ffiHARERA ffi"- cl'tRUcRAM complaint No. plaint No.4638 of 2023 those cases, the issue of assured returns was involved to be paid by the builder to an allottee but at that time, neither the full facts were brought before the authority nor it was argued on behalf of the allottees that on the basis of contractual obligations, the builder is obligated to pay that amount.

However, there is no bar to take a different view from the earlier one if new facts and law have been brought before an adjudicating authority or the court.

There is a doctrine of "prospective overruling" and which provides that the law declared by the court applies to the cases arising in future only and its applicability to the cases which have attained finaliry is saved because the repeal would otherwise work hardship to those who had trusted to its existence.

A refeie$C6 in'ttris regard can be made to the case of Sarwan Kumar & Anrvs.

Madai Lat Aggarwal Appeal (civil) 7058 of 2003 decided on 06.02.2003 and wherein the hon'ble apex court observed as mentigned above.

So, now the plea raised with regard to maintainability : of the cornplaint in the iace of earlier orders of the authority in not tenable' The authority can take a different view from the earlier one on the basis of rw and the pronouncements made by the apex court of the land.

It is now well settled preposition of law that when payment of assured returns is part and parcel of buildef buyer's agreement fmaybe there is a 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 and can't take a plea that it is not liable to pay the amount of assured return.

Moreover, an agreement for sale flefines the builder-buyer relationship.

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

Therefore, it can be said that the authority has complete jurisdiction with respect to assured return cases as the contractual relationship arises Page L7 of .24 HARERA Complaint No.

4638 of 2023 out of the agreement for sale only and between the same contracting parties to agreentent for sale.

21.

The money was taken by the builder as deposit in advance against allotment of immovable property and its possession was to be offered within a certain period.

However, in view of taking sale consideration by way of advance, the builder promised certain amount by way of assured returns for a certain period.

So, on his failure to fulfil that commitment, the allottee has a right to approach the authority for redressal of his grievances by way of filing a complaint. : '' r'ii! : 22.Thebuilder is liable to pay that amount as agreed upon and can't take a plea that it is not liable to pay th. ih;dirt 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 e original agreement for sale of the sarne relationship and is marked by th 23.ltis not clisputed that the respondent is a real estate developer, and it had not obtained registration under the Act of 201,6 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(1) of the Act of 201,6 and, the same would fall Within the jurisdiction 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 regulaterl deposit accepted by the later from the former against the immovallle property to be transferred to the allottee later on.

24. er on.

24.Onconsideration of documents available on record and submissions made by the complainants and the respondent, the authority is satisfied that the respondent is in contravention of the provisions of the Act.

The agreement executecl between the parties on 03.11.2009, the possession of the subject unit was to be delivered within stipulated time i.e., 03.11'.2012.

GUI?UGRAM Page 18 of24 ffiHARERA ffi"-CRUcRAM Complaint No.

4638 of 2023 25.\t is worthwhile to consider that the assured return is payable to the allottees c,n account of provisions in the buyer's agreement or an addendum to the bulrsl's agreement.

The assured return in this case is payable as per "Annexure A - Addendum to the agreement dated 03.11.2009".

The rate at which assured return has been committed by the promoter is Rs.

7B/- per sq. ft. of the super area per month which is more than reasonable in the present circumstances.

By way of assured return, the promoter has assured the allottee that they would be entitled for this specific amount till completion of construction of the said building.

Moreover, the interest of the allottees is protected u".iir,itteilithe completion of the building as the " ,1 'r;.tl : 1.:: ' i assured returns are payable tor the flrst 3 years after the date of completion of the pro ject or till the date of said unit/space is put on lease, whichever is earlier.

26.

On consideration of the documents aVailable on the record and submissions made by lthe partieS, the complainants have sought the amount of unpaid amount of assured return as per the terms of buyer's agreement and addendurn executed thereto along with interest on such unpaid assured return.

As per Annexure A of buyer's agreement dated 03.11.2009, the promoter had agreed to pay to the complainant-allottee Rs.7B/- per sq. ft. on monthly basis till completion of the building and Rs.65/- per sq. ft. on monthly tlasis after the completion of the building. building.

The said clause further provides that it is the obligation of the respondent promoter to lease the premises.

It is matter of record that the amount of assured return was paid by the respondent promoter till April 2018 but later on, the respondent refused to pay the same by taking a plea of the Banning of Unregulated Deposit Schemes Act,201,9.

But that Act of 201,9 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 Secti on 2(4)[iii] of the above-mentioned Act. "/ Page 19 of24 ffiI{ARE.BA ffi"euntlGttAM 27.lnthe present complaint, vide letter dated 29'02'ZOL6' the respondent has intimated the comprainants that the construction of subiect tower is completewhereinthesubjectunitislocated'However'admittedly'oc/cc for that block has not been received by the promoter till this date' The authority is of the view that the construction cannot be deemed to complete until the oc/cc is obtained from the concerned authority by the respondent promoter for the said project.

Therefore, considering the facts of the present case, the respondent is directed to pay the amount of assured return at the agreed rate i.e., @ Rs'78 /- yet sg: ft' per month from the date the ,:.:'.: ,n1 .,.',, payment of assured retut" t ii'nOC;b""" made i'e" May 2018 till the date of completion of buitdi"g ([" receipt of occupation certificate) andthereafter,Rs.65/.persq.ft.permonthtillfirst36monthsafter completionoftheproiect(onreceiptofoccupation.certificate)ortill on lease' whichever is earlier' Further' in case the dattl said unit is Put the unit in question is leased out by the respondent at the rate lower/higher than as is fixed by the respondent, the respondent is obligated to settle the SameintermsoftheaddendumtoBBAdated03.ll.2009 28. l.2009 28.

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 adjustment of outstanding dues, if any, from the complainants and failing',,rrhichthatamountwouldbepayablewithinterest@90/op.a.tillthe date of actual realization' 29.

Further, it is observed that the respondent had paid assured returns GD Rs.65/-perSq.ft.permonthfromMarch,2ot6tiIIApril,2ol9tothe complainants as evident from Annexure R2 annexerl by respondent at page 3l.ofthereply.However,therespondentwasdutyboundtopayassured return'[email protected] to BBI\ dated 03.11.2009.

Therefore' the respondent is directed to pay the ,y Page 20 of24 ffiHARERA ffi"CUNUGRAM Complaint No.

4638 of 2023 difference of assured return amount of Rs'l-3 l- per sq' ft' per month from March, 2o1,6to April, zot} along with interest @ 9o/o per annum' G.V Direct the respondent to withdraw the common area maintenance charges and interesi charges upon it till the time occupation certificate is receivedilndpossessionisofferedtothecomplainant.

30.

The complainants have raised an issue that the respondent has wrongly demanded payments on account of common area maintenance charges prior to rr:ceiving occupation certificate and without offering the possession to the cotnPlainants' 31.

The Real Estate [Regulation and DevelopmenQ Act,201'6 mandates under Section 1tl4)[d) that the devetbpe]'WiU be responsible for providing and : :,: maintaining the essential servites ohireasonable charges till the taking over of maintenance of the project by the association of the allottees' Section 19(6) of the RERA Act also states:thafievery allottee' *:." has entered into an agreement for sale, to take an apartment, plot or building as the case may ection]. y ection].3shallberesponsibletomakenecessarypaymentsin the manner and within the time as specified in the said agreement for sale/BBA and shall pay within stipulated time and appointed place' the ;istration charges, municipal taxes, water and electricity charges, maintenance charges, ground rent and other charges, if any.

32.

The ne;<t question arises herein as to from which date the maintenance chargesr can be charged or made applicable' In this regard' the authority places reference to the state consumer Disputes Redressal Forum decision in shri AniI Kumar chowdhury vs'DLF Limited on 76'08'2078' wherein it has been held as under: "Maintenance Charge and Holding Charge-: ' kroririg to ctausi 10 or claus'1q's of the Agreement' the oporti,"" allottee shalt be liable to pay the maintenance charge on and from the date on which actual physical possession is taken or on the expiry of thirty (30) days from .the aot, oJ'ii,u'ince o7the Notice oiPossession-'whichever is earlier' es pir terms oi tn' Agreement' the OP/developer has no authoriiy to demand iaintenance for any period prior to 4/ Page21. of 24 ffiHARER,,1, ffi"-sunuGRAM Complaint No.

4638 of 2023 actual physical possession being handed over.

Equally the )P/developer shall have no authority to demand any holding charge as the delay in giving possession is on their own part and they are wrongfully withholding possession till date.

However, the complainant will be liable to make payment on account of government charges only upon receiving physical possession of the flot and car parking space from the 0P.

So far as claim of the complainant for common facilities or benefit like - swimming pool, tennis court etc. are concerned, the same connot be entertained because prior to lodging complaint, no permission was sought for in occordance with Section L2(1)(c) of the Act to file the complaint in a representative capacity. capacity.

Therefore, there is hardly ony reoson to discuss aboutthe commoll-Q-Nas andfacilities of the complex, as alleged complainant,r;,1r.,,t...1,,:...i,,,..'.'.......' ".........

In view of the discusslon' aboietn tfie complaint is allowed on c o n te st w i th th e foll ow ing,,dir d etion s : - The Opposite Party is directed to deliver possesston and to execute the Sale Deed in favqur.gf the complainant on payment of stamp duty ond rlgiqf{dqi.on chrq;gep within 90 days from the date after obtaining Completion GCitiJicatefrom the competent The Opposite Far$t is directed not to claim any amount under the head of (a) cost ofincreased in area. (b) pro-rate charges for arcanging supply of electrical energy and (c) 1ther costs including government charges from final statement of accounts, (d) maintenance for any period till honding over possession and (e) any holding charge whatsoever for withholding possession; 33.In yet ancfther judgement titled as Dr.

Mudit Kumar Vs Emqar MGF Land Limited on 28.07.2020 passed by the State Commission, Puniab wherein it has been held that the promoter is not entitled to charge any maintenance charges till the handing over of the possession of the plot to the allottee post receipt of'OC only.

However, the amount accredited towards maintenance charges should be maintained in a corpus and the builder cannot transfer the proceeds or maintenance charges received from the allottees to his company's account, because such money received for maintenance is not his incon:le in any way.

The logic behind it, is that a builder is only a facilitator for a limited amount of time and the onus of taking up the PageZZof24 , ffiHARERA #- eunuenAM Complaint No.

4638 of 2023 responsibility of maintenance of the flat and its premises is on the residents' welfare association [RWA).

34. [RWA).

34.

In light of the above-mentioned reasoning, the complainant-allottees shall be liable tcl pay the common area maintenance charges on and from the date on which valid possession is offered to the complainant-allottee post receipt of occupation certificate.

G.VI Initiate penal proceedings under section 59 of RERA Act and impose LOo/o penalty of the over-all cost of the project for non-registration of proiect under RERA.

35.

The planning branch of the authority is directed to take necessary action under the provision of the Act of 2016 for violation of proviso to Section 3[1) of rhe Ac.

H.

Directions issued by the Authority: 36.

Hence, ther Authority hereby passes this order and issues the following directions under Section 37 of the Act to ensure compliance with obligations cast upon the promoter as per the functions entrusted to the Authority under Section 34(f) of the Act of 201,6: I.

The rer;pondent is directed to pay the amount of assured return at the agreed rate i.e., @ Rs.78/- per sq. ft. per month from the date the pay- ment of assured return has not been made i.e., May 2018 till the date of completion of building [on receipt of occupation certificate) and there- after, Rs.65/- per sq. ft. per month till first 36 months after completion of the project (on receipt of occupation certificate) or till the date said unit is trlut on lease, whichever is earlier.

Further, in case the unit in ques- tion is Ieased out by the respondent at the rate lower/higher than as is fixed bv the respondent, the respondent is obligated to settle the same in terms of the addendum to BBA dated 03.11.2009.

II.

The re:spondent is directed to pay the difference of assured return amount of Rs.13 /- per sq. ft. per month from March, 20\6 to April, 2078. q Page23 of24 III.

HARER& GURUGRAM Complaint No. plaint No.

4638 of 2023 The respondent is directed to pay the above outstanding accrued as- sured return amounts till date along with interest rate of 9o/oper annum within 90 days from the date of this order after adjustment of outstand- ing dues, if any, from the complainant and failing which that amount would become payable with interest @ 9o/o p.a. till the date of actual re- alization.

The complainant-allottee shall be liable to pay the common area mainte- nance charges on and from the date on which valid possession is offered to the complainant-allottee post receipt of occupation certificate.

V.

The respondent shall not ing from the complainant which is not the part of the buyer's IV.

37.

Complaint stands disposed of.

38.

File be consigned to the Registry.

Dated: 24.07.2024 Ashok (Mem Haryana te Regulatory A ority, Gurugram Page 24 of 24