PRASHANT CHIBBER AND HEMA GUPTA vs LANDMARK APARTMENTS PRIVATE LIMITED

*HARERA #- crnrcnnnr CompLajntno 14930f 2024 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM 749A of 2024 18,o4.2024 Complaintno.: Date ofllllns I Date oforder: 1.

Prashant Chibber R/o:Apartment, E 021, Enigma Apailments, Sector-1 10, Dwarka Expressway, Gurugram, Haty ana lZ20 17 2.

Hema Gupta R/o: H.

No.969/31, Ward No.

29, Laxman Vihar, Phase-1, Gurusram, Haryana.

Versus M/s.

Landmark Apartments Pvt.

Ltd.

Address: Landmark House-85,Sector-44, Curugram-122002, Haryana CORAMI APPEARANCE: Ms.

AartiBhalla and Shri Sharvan Kumar [Advocates) Shri Amarjeet Kumar [Advocate) Complainarts 1 The present complaint has been filed by the complainants under section 31 of the Real Estate (Regulation and Development) Act, 2016 [h€reinafter referred as "the Act'') read with rule 28 ol the Haryana Real Estate (Regulation and Development) Rules, 2017 (hereinafter referred as "the rules") for violation of section 11(4)(a) ol the Act wherein it is inter alia prescribed that the promoter shall be responsible lor all its obligations, responsibilities and functions to the allottees as per rhe agreement aor sale executed inter se between parties.

ORDER Complainant Respondent A.

Proiect and untt related deta s 2.

The details ofthe comptaint unitno., date of agreement, possession clause, due date olpossession, offer ofpossession, toral sale considerarion, amount paid up, and derails ofthe project are given in the tabte betow: *HARERA S- eunrcnm,r complJ'nrno r4s3of 2024 s.

N, I "Landmark Corporate Cenrre", at Lahdmark cyber Park, Sector67, curugram, Haryana 2.

3 D1'CP 97 012008 dated 12.05.2008 valid up to 11.05.2020 Licensedarea' 8.3125a..es 4 RERA Registered/ not Registeed vide flo.61of2019 dat€d 25.11.2019 Valid up to 26.12.2018 Resistered area- 4.48125 acres ApplrLJtiun iorm dared 23.1,0.20t2 lPage ll ofapplication dated 26-07 .20241 Executive Suit Unitat4s flooradmeasuring 150 sq. fr IAs per lnou dated 25.10.2012 at page t9-20 ot complaintl P.esent unit no. t unit no. and Customised/Managed oftlce at 2M floor admeasuring l50 sq. ft. lAs per MoU dared 18.10.2019, page 41 of complaintl 7 Date of execution of MOII 26.10.2072 [Page 18 ofcomplainr] HARERA GI]RUGRA/ aom!la'ntno t4o3or 2024 I Assured Return clause as per MOU dated 26.tO.20t2 3.

That the BDyer has paid the enr,re Basic Sate price to the Company@ Rs.10670/- persq. ft. for the total area admeasuring 150 sq. ft. and the companyhasaB.eed to pay Rs.16,s00/. (Rupees sixtee.

Thousand Five Hundred onlyl every month as assu.ed return ro the buyer which shall be payable quarterly, till the dare of possessionor 3 yea6 whicheveris earlier.

IPage 20 of complaintl ,] Leasing clause as per [4OU dated 26.10.20] 2 4.

That rhe se.ond Party has a8reed ro Sive leasing riSht fo.

9 yea6 to First Party after possession.

The First leasiDg righr of the above said property will be with First Parry for the locking period which is 9 years.

First Parry will pay Rs-110/- Per Sq.

Ft. as rent to Second Parry for 9 years.

Rent will appreciate 15% after every lPage 20orcomplaintl 10 ll Due dateofpossession 12 Occupahon certrficate 26.12.207A lPase 34 ofcomplaintl 13.

Reminder for taking Possession and clearing due amountinS to Rs.13,98,017l- 07.09.20t9 lPage 35 orcomplaintl 14 Request by the complainants to cancel the allormeDr ol erecutive sit and allot office on 2d noor vide 01.r0.2019and 18.10.2019 lPage 38 and 39 olcomplainrl l ffiHARERA 9P eunucnlrL,r comDl.intno l493or2024 a.

3 Facts of the complalnt The complainants have made the following subm issions: a.

That the respondent floated a projecr namely ,,Landmark Corporate Centre" situated at Sector 67, curugram.

The comptainants came across one o[such advertisement and got interested in a commercial project with assured returns and rentals.

The scheme introduced by the respondent to the complainants sounded profitable and tucrative. t5 Memorandum of settlemenr (in respect 18.10. ect 18.10.2019 StahnS all the prevrous AR has been adjusted a8a'nst the newallotted unit and Rs.

18,762l-,s due hom theallotrees to the respondent IPaee a1 or complaiDt] BBA conffrming allotment oluniton 2"d 37.t2.2079 IPage 24 ofapplication 26.41 20241 Agrecment for lease 31.12.20t9 (Pase 43 orconplaintl Basic sate 16 00.500/- lAs perclause 3 of MOU dated 26.10.2012, page 20 of complaint and clause 2[a] of BBA dated 31.12.2019, page 25 of application dared 26.07.2024) Tot.l sale Rs.16,83,750/- page 35 ofapplication oi 88A dared 31.12.2019, dated 25-07 -2024) 20.

Amount paid by the Rs.15,00,500/, lPase 23 &24 olcomplainrl 21 Legalnoti.e sent by th. complainants seekinS refDnd, return on 23.09.2021 lAllesed by the complainanc on page 5 or complaint, however, no document placed on *HARERA (S- eLrnrcnnnr Compla'nrno l4s3of r024 Upon application fo. allotment in rhe sajd project, the complainants we.e allotred "THE EXECUTIVE SUITES,,on 4th Floor, admeasunng 150 sq it. jn the said projecr for price ot Rs.10,670 per sq. [t. and in rhis regard, a l4emorandum oi Understandjng dated 26.10.2012 was executed inter se parties.

The complainants have paid rotal consideration of Rs.16,00,500/- vide rwo cheques dated 21.10 Z0t2 and 22_tO_2012.

As per ctause 3 of the MOU dared 26.10.2012. the respondenr was under obligarion to pay Rs.

Rs.16,500/, per month ti the date ofpossession or 3 years whichever is earlier. turther, as per clause 4 oithe said M0U, rhe complainants agreed ro give the leasing riehts oa the said properry, on a rent of Rs.

110/ per sq. it. for next 9 years to the respondents and rhe renr would appreciare @ 150/o every 3 years afterthat.

The respondenthad confirmed rhe possession much belore 3 years as the project was launched before 2008.

1.hc respondent assured verbally that it willensure rhat the complainants getthe possession very soon and then will sta rt getting the renr for the next 9 years as per the clause no.4 ofthe MOU dated 26.10.2012 b.

10.2012 b.

That the respondent paid assured return till Ocrober 201S and srnce then, there has been no paymenr done by the respondenr. .the complainants continued to visit the office of the respondent seekjng refund of their hard-earned money invested in the project oi the respondent.

Allcommunicarion to the respondent has gone in vain c.

That the respondent vide letrer dated 07.09.2019 raised illegal demands amounting ro Rs.

13,98,017l . when the complainanrs wenr to the olflce oithe respondents, they threatened the comptainants that il this outstanding is not cleared, rhe previous payment shalt atso be forferted and the allotmenr ofrhe prope.ty shattatso be cancelled.

The ITHARERA S- crnrcmur Complr'ntno l4c3or?024 d. authorized representative of the respondent tried to convince the complainants that the lockable space on the 4rh floor on which the complainanrs have been allo(ed rheir space is not beingabte to be put on rent.

Ir was suggested by the authorized rep.esenrariv€ of the .espon denr rhar they sh outd change their fl oo r a nd in stead of a locka ble space they should rake a space which can be iointty given to a big8e. tenant who needs the entire floor.

Left with no other optjon, rhe complainants agreed to change irom 4th floor ro 2"r noor and si8ned certajn documents & BBA but the complajnantJ copy was never provided back to them afrer the signatu res.

That the complainants yet again visited the said p.operry and were shocked to see that the entire properry was a pur on renr.

Thc complainants felr cheared by the respondent as they were not paying the rent despite receiving regular renrals and now the comptainants realized thereasonof therespondentsfornot providingthedocuments oithe Builder Buyer Agreement.

That having no other option, the complainants through rhe,r counsel Mrs.

Aart, thaua, Advocate sent a legalnotice dated 23.09.2021ro the .

21ro the .espondent io which the respondent was directed to pay rhe due refund, return on investment/ rentand damages alongwjth interest @ 240lo p.a. to the complainants wirhin a time period of 7 days.

But thc respondentneithe. replied to the legal notic. norrefunded theamount to the complainants.

The said complaint was atso nted before the Hon'ble HRERAAuthoriry forthe refundvide compla,nt number RER^ GRC 2019-2022.

When the respondent was summoned before the Authority, they filed the reply along wirh the n€w Builder Buyer Agreement which was nor shared with the comptajnanrs.

Thc ffHARERA -@- Gunlnnlvt Cohp, nr no t4cB or2014 complainants had no choi.e but to get rhe said complatnr wrthdrawn with the intention ol fiting t esh comptaint against the respondenr using the documents provided by the respondents in the wrilren statement olthe previous complajnt fited.

That the respondent obtained the occuparion ce.tificare irom rhe competent autho.iq, on 25.12.2018 bur the comptainants were hever informed abou he same.

Thereafter, vide letter dated 07.09.2019. th. respondent cr$ted undue pressLrre on the complainanrs by raisingnn rllegal demand of Rs.

13,98,017l-. tt is pertinent ro meniion here rhar the respondent has not sent any previous comnrunication tor taking possession.

When the complainants approachsd rhe respondenr,s office, the respondent offered th€ complainants to.ancelthe prope(v on 4,h lloor and to book another p.operty on 2"d noor by adiusrjng p revjous amoultt paid and pendingassur€d retu.n againstthenewunir by making the complajnants sign lwo tetters.

In rhis regard a Memorandum ofsettlement for the 2nd floor was signed on 18.10.20j 9 whereby an amounr ol tu.

52,500/, which was pendrng fronr rhe respondent towards the complainanrs was adjusted and rhere was il payment of Rs.18,762/- due from the comptainanr to rhe respondenr againsfthe EDc,lDC erc.againstthe newallorted unir. tr is pertinent to highlight that the amounts raised in the lerter dared 07.09. red 07.09.2019 ot Rs.13,98,017l was nowhere mentioned in the settlement agreemenr w.r.t 150 sq. ft.lrom fourth floorro rhesecond floor.

This ctearlyshows the mala lide intention ofthe respondent and hor1l they manrputate th. emotions and the money ofthe comptainanrs/buyers.

Th at the complainants approached therespondenriorthei. renrats, the respondent pointed out that 4th floor has been pur on rent and th. f previous builder buyer agreement shatl be in iorce and rhe complainants shall remain the owner otthe property of rhe 4,, floor as per the lvloU date 26.10.2012..t.he comptainanrs rajsed rhe questron ot the return on invesrment which was adjusred agaiDst the exchange of property nt 2d lrloor, to whi.h rhe respondenr authorized reprcsentatives in fo rmed rhat the am ou n r sh a be retundcd back ro rhc complajnants.

Butthe respondenrdid not payeven a sinstedime to the complainants.

Hence, this complaint.

C.

Reliefsought by the complainantsl 4 The complarnants have sought followinC .elief(sl: i.

Direct the respondenr to refund the entire amoLrnr i.e., Rs.16,00,500/- pa,d by rhe complajnants along with inreresr as per the p.ovisions ot ii.

Djrecttherespondenttopayrerurnoninvestment/rsnr@ Rs.16,500/. pe. month Since october 2015 rill rhe nnat date of realjsation ro rhe complainants. iii.

1o pay compensarion amounring to mental agony and damages. iv.

Litigation cost of Rs.1,00,00 0/-.

5.

0n the date ofhearing, the aurhority expla in ed to the respondenr/ promoter about the contravenrions as alleged ro have been commttted in relanon ro section 11[4) [a) oithe act to plead gurlty or nor to p]ead guitry.

D.

Application for dismissal ofcomptiant by the r€spondenr 6. lJy virtue ofan applicarion dated 26.07.2024 tor dismissatof comptainr, rh. respondent has pleaded as under: i.

Thatin theyear 2010-2011, the respondentafter availing allnecessary approvals from rhe competent aurhority, the respondent launched a project namely, "Landmark Corporate Centre", Sector 67, Curugram, Curugram, Haryana otrering the benefit of assured return till dat€ of possession or *HARERA 4$- eLrnrcnanr Compla'ntno l493ot ?024 Rs.10.00,000/. on rccount ot *HARERA S-eunuennl,r Compla'ntfo t493of 2024 3 years whichever was earlier.

Thecomplainants booked a unit in rhe said project by paying an amount of Rs.16,00,500/, towards the same priceand a MOU dared 26.10.2012 was executed jnterse pa(ies_ Vide lefterdared 23.09.2014, rhe respondent an omce space measuring 150 sq. ft. on 4th floo. of the projecL In the yea.

2015, rhe respondent successfully complered the project and apptied for occupation certificate on 17.04.2015.

After apptyjng the same, vide lett€r dated 23.07.2015 the respondent intormed a the allottees about the tentative date of receiving ihe OC.

After receiving OC on Z6.|Z.2O:a, the respondentsenta reminder forofierofpossession vide letter dated 07.09.2019 to the comptainants.

The complainants did not pay rhe outstanding amounts and on the contrary, requested the respondent for change in offic€ space on 2"d floor vide letter dated 18.10.2019.

Thus, vide Memorandum of Seftlement dated 18.10.2019, the respondellt allotted cusromised/maDag€d offic€ unit admeasuring 1SO sq. ft. on the second floor ofthe said project and white changing the unit, adjusted rhe remaining assured rerurn amountingto Rs.S2,500/- in the new allott€d unit and Rs.18,762l- stilt stood payable by the complainants.

Pursuant to signing of Memorandum of Settlement dated 18.10.2019, rhe complainants as wellas the respondentsigned a Builder BuyerAgreement and an Agreement for lease arrangement for arranging lease on dated 31.12.2019.

Atthetime signing of B BA dared 31.12.2019, the complainants had atready taken possession ofthe unir allotted to the complainants as perclause 3 ofBBA which states,,... tates,,...ond the possession ofthe soicl unit shott be deened hancled over to the Allottee aftersigning oI this ogreenert" Thus, the present compla int js liable to HARERA GL]RUGRA[/ be dismissed as rhe complainants are already in possession ofthe un,t and thur the prayerofthe comptajnants become inlructuous. ii.

That rhe comptainanrs have not approached rhis Hon,ble Aurhoriry with clean hands and has suppressed facts in order to illegally enrich the complainants.

The complainants have earlier filed a complaint against the respondent in 2021 tarer on in rhe year 2023, the said complaintwaswithdrawn bytheromplainants and the same is evident lrom the order dat€d 12.07.2023 passed by the Authority.

Thus, the present complaint is barred by the pr,nciples oi Res-ludicata as the said complaint was withdrawn without the leave ofthe Aurhorily. iii.

That the present complaint is barred by Iimitation as it is an admitted facts that the occupation certificate for the project and rhe unit in question was received in the year 2018 and the complainants have already taken possession o[the unit allottees to the complainants jn the year 2019 and the present complaint has been nled by the complainants after a period of almost 5 years.

Thus, the present complaint filed by the complainants is tame barred and merits summary reject at the very outset, 7.

Copies of all the releiant dodr[lerts ha!€ been filed and placed on the record.

Their authenticiry js not in dispute.

Hence, the complainr can be decided on the basis of these undisputed documents and submission made Jurisdiction of th€ authority The authority observes that it has terriror,at as well as subject marter jurisdiction to adjudicate the present complaint forthe reasons given below.

E.I Territorialiurisdictton Comp a nt no 14930f2024 E, PHARERA S-GURUGRA[/ comparntno 14930f2024 9.

As per notification no. t/92/2017-7TCp dated 74.12. ted 74.12.2017 issued by Town and Country planning Department, the jurisdjdion ot Real Esrate Regulatory Authorry, Gurugram sha be entire Curugram Distri lor alt purpose with offices siruated in curugram.

In the presenr case, the project in question is situated within rhe planning area oa Gu.ugram Djsrrict.

Therelore, rhis authoriry has complete terrirorjal ,urinticnon to.deat wrrh the p.csent complainr.

E.ll Subiect matter jurisdictio n 10. section 1l(a)(al oithe Act,2016 provides rhat the promoter sha| b€ .esponsible to the a ottee as per ag€ement tor sate. sedion 11[4lral is reproduced as hereunder: @ rhe pronot|. sha Qt ho ., \pontbp pt ott , Dttgo@q\. , ".paa ht+e ,.nd t !. t.ot\ lno"t thf rta\t on.oru1,t AtLat t4e.ule. oao,egu,ot_an. -od, t,e,",noe, , Lo thcallaxees os per the agkene.t t'ar ete, or ta the a$ociaron ot'olare*, r the .o p q ba t,t th. \o,\pnn,e ,t ol fi, doatL_\t' I,or. o, b" ldt"!. at th" ru\" nu!

D, to rhc ottokep ot tt ? ...." ",";. .,"" at\aciotion olollotteesor the@npetentouthority,o, the case nar be: Seaton t4.Fun.tions oI the Authorit!: ) l[l1ol thp Act p,otd* ta "q,ure .onpl,on. p al Ln" ool.oo. aa_ ,o!

Lp,, Lh. ot o.rotat. the ollo ee- and t ap t eal ",tae ag"a,.

Lr d". -' t I t n;. t e .ules and rcgulatio$ nade thereundet.

11.

So, in view ol the provjsions ot the Act quored above, the authoriry harj complete jurisdiction to decide the complajnr regarding non-comptiance of obligations by rhe promoter.

F. tindings ofthe authority 12.

The responden r has raised an objection rhat rhe p resen t co m plaint is ba rred by the prjnciple ol resldica.a as rhe comptainants hail previousty fited a complaint be3ring no.2019.2022 in respect oIsame cause ofaction and the same was larer wirhdrawn by the comptainants wjthout rhe teave ot rhe 13.

The authority observes thata complaint bearing no.2019-2022 wasfited by the complainants before the Authority and the same was disposed ofvide orderdared 12.07.2023.

2.07.2023.Therelevantorderis reproducedas underl "rhe counsei Jot the cohplathant wishes to withdto|| the conptoint Allowed to do so, ln view of obove, the codptoint stonds dbpxed olJ Fite be corrighetJ to the 14.

Section 11 of the Code of Civit procedure, 1909 (CpCl deals with rh€ p.inciple of res judicata and the same is reproduced as under for ready "77.

Res jut icoto.-No Court rholl O! onr sut or 6rue in which the no/,er dnectlr ahtl substunnall! in irruehas been directl! and jubnontial! in isLe in o lornet suit between the sane.pnrnes, ot between poftjes under whon the, o, anrottheq (latm hqqo nq uhdet th. ,one tt?. h a coud t aapeteat @ trytu.h,lbscquent tut ot tle slit ]n whrh tu.h i:tuehosbeer sub\eqb?ctl' roised, ond hds beet h.or.l and finalu detu ed by su.n court , 15.

Further, the authority further place reliance on State of ljttar pradesh & Anr. v.lagdish Sharan Agrawal & Ors., (20091 l SCC 689 wherein Hon,ble Apex Court held that where the maBer has not been decided on merit earlier, the doctrine ofres judicata is not applicable.

16- In the present matter also, the complaint bearing no.

2019-2022 was not decided on merits ratheritwas withdrawn by the complainants without the leave of the court.

Consequently, the said order dared 12.07.2023 cannot operateas res judicata.

17.

However, the Authority observes thatthe withdrawalofa suitby a plaintiff under the CPC is governed by a well-defined set ofrules that aim ro batance the rights of the plainriff, the defendant, and any co-plaintiffs involved.

Whjletheplaintiffenjoys the righrtowithdrawtheir sujt, this rightis subject to various conditions and limitations. one such restriction is srated unde.

Ordery!XIIlRule 1, sub-rule (a) which is reproduced as underi "(4) where the Ptointill PHARERA ts-cunrcnav rompa nt no 1493of2014 *HARERA S- eunuenlttt complaihtno l493of 2024 tb) withdtu||s lnn o sui,- ot obandons poa ot o , ta,n w hout the ppm.$,a4 rpfetted to, in Subrute t2), he \holl oe hobte tot \u, h. tot \u, h.6Ls o\ Lhe Cowt nu owotd oad shott be prectuded Jron ins tu.ing oar lresh suit i4 re\pd al such tubject-notter ot such pott of the .loin/ 18. lt is pertinent to mention here that as per the aforesaid provisions, ii rhe plaintiffwishes ro withdraw the suitand file a fresh one, they must seek rhe court's permission and without such permissjon, the plaint,ff risks being barred from pursuing the same cause ofactioD in the future.

In the present case, the complainants herejn did not take the leave of rhe court while withdrawiDg the comptaint b 019/2022 and now have inst[uted present complaint on same on and seeking same reliels.

Thus, the present complaint is rinciples and provisrons under orderxXlll Rule 1, su Code,1908.

19.

Thecomplainrasw 20.

File be consigned tu w-4 Kumar) Dared:04.04.2025 IArun Chai.man Haryana Real Estare Regulatory Authoriry, curugram GURUGRAM