TARUN AGGARWAL PROJECTS LLP AND PRAJAKTA COLONIZERS PVT LTD vs EMAAR MGF LAND LTD.

HARERA ffiGURUGRAI/ 1.

BEFORE THE HARYANA REAL ESTATE RE AUTHORITY, GURUGRAM ULATORY Date of deci 16.o4.2024 Appearance Sh.

Satyender Kr.

Goyal Sh. l.K.

Dang & Dhruv Rohtagi Sh.

S"ty"rd"r K;.

Goyal Sh.

J.K.

Salvendcr Kr.

Coyal Sh.

I.K.

Dang & Dhruv RohtaSi Sh.

Coyal Sh. l.K. l)ang & Dhruv Rohtagi CORAM: Shri Sanjeev Kumar Arora Sh.

Dang & Dhruv Rohtagi Member titled above filed Estate (Regulation as "the Act") read ORDER This order shall dispose of all the five [5J complain before this authority under section 31 of the Real plaint No.

3904 023 & 4 others EMAAR INDIA LIMITED (Formerly Land Ltd.) n as Emaar MGF PROJECT NAME .EMERALD HIL cR/3904/2023 Tarun Aggarwal Proiects LLP & Prajakta Colonizers Pvt.

Ltd.

V/s Emaa India Ltd.

IFormerly known as Emaar MGF Land Ltd.) cR/3893/2023 Tarun Aggarwal Projects LLP & Prajdkta Colonrzers Pvt.

Lrd.

V/s Fjmaa lndia Ltd. (Formerly known as Emaar MCF Land Ltd.) Tarun Aggarwal Projects LLP & Prajakta Colonizers Pvt.

V/s Emaa lndia Ltd. (Formerly known as Emaar MGF Land Ltd.l cR/3902/2023 4.

CR/3903/2023 Tarun Aggarwal Projects LLP & Prajakta Colonizers Pvt.

V/s Emaa lndia Lld. [Formerly kno!(n as l-:mddr MCF Land Ltd.) Tarun Aggarwal Projects LLP & Prajakta Colonizers Pvt.

V/s Emaa lndrd Lld. fFormerly known as Emaar N4GF Land Ltd.) cR/3894 /2023 and Development) Act, 2076 [hereinafter referre Page 1 of40 s.No.

Case No.

Case Title 3.

5. (^i 2.

3.

HARERA ffiGURUGRAM with rule 28 ofthe Haryana Real Estate (Regulation Rules, 2017 (hereinafter referred as "the rules") for nd Development) 11(41(a) oftheActwherein it is interalia prescribe iolation ofsection that the promoter ponsibilities and shall be responsible for all its obligations, functions to the allottees as per the agreement for se between parties.

The core issues emanating from them are similar n nature and the respondent/promoter i.e., M/S Emaar India Ltd.

India Ltd. conditions of the application form fulcrum of the is these cases pertains to failure on the part of the p moter to deliver timely possession ofthe units in question, seeking fund of the unit. ate of agreement, le consideration, total paid amount, and relief sought are given in the ble below: & 65, Gurugram t Letter 19.04.207r 19.04.2011 79.04.2017 19.04.201,7 19.04.2011 plaint No.

3904 023 & 4 others Project Name & Location "Emerald Hills" Situated at sector 6 Complaint No.

Unit No. cR/3904/2023 A-84 admeasuring 442 sq. cR/3893 /2023 A-85 admeasuring 442 sq. cR/3902/2023 A-98 admeasuring 400 sq. cR/3e03/2023 I-166A admeasuring 400 sq. cR/3894/2023 C-63 admeasuring 500 sq. complainant(s) in the above referred matters a proiect, namely, "Emerald Hills" being develo The details of the complaints, reply status, unit no., possession clause, due date of possession, total le executed inter allottees of the d by the same The terms and ue involved in all PaEe 2 of 40 t-l 4. * HARERA S"-eLrnuennvr 5.

It has been decided to treat the said complaints as non-compliance of statutory obligations on the pa /respondent in terms of section 34(0 of the Act authority to ensure compliance of the obligatio promoters, the allotteeIsJ and the real estate agents rules and the regulations made thereunder.

The facts of all the complaints filed by the complai are similar.

Out of the above-mentioned case, the case CR/3904/2023 Tarun Aggarwal Projects Colonizers Pvt.

V/s Emaanlndia Ltd. (Formerl MGF Land Ltd.l are being taken into consideration rights of the allottee(sJ, Facts ofthe complaint The complainants have made the following su complaint: a.

That complainant no.

1 is a limited liability constituted and registered under the pro Liability Partnership Act,2008.

The comp formerly known as M/s Tarun Aggarwal P company incorporated under the Compani complainant no.2 M/s. no.2 M/s.

Praiakta Colonizers Pvt incorporated under the provisions of Compani That the complainants vide their respective dated 17.08.2023 have duly authorized Mr.

Na is well conversant with the facts and circums A.

6. case, to file the present complaint, to engage Page 3 of40 plaint No.3904 023 & 4 others n application for of the promoter ich mandates the s cast upon the under the Act, the ant(s)/allottee(s) iculars of lead LLP & Prajakta known as Emaar r determining the missions in the partnership duly ions of Limited inant no.

1 was ects Pvt.

Ltd., a Act 1956.

Thc Ltd. is a company Act 7956 / 201.3. resolutions both eet Kumar, who ces ofthe present unsel, to sign and (.1 HARERA G@ Cl IDL IADAIi] b.

C. verify pleadings and to do all such acts, deeds be necessary in this behalf.

That the complainant no.

1is an allottee admeasuring 500 Sq. yds. situated in residenti 'Emerald Hills, Sector-65 Gurugram vide allo 79.04.201.1. duly issued by the respondent. with four plots was allotted by the respon collaboration agreement dated 2009 and add dated 19.04.2011.

That the complainants possession of the land admeasuring 6.06875 Rect.

No.

14 Killa N o.4/4 (l-7),Rect.

15 Kill (8-0),4/1 [4-0), situated within the Revenue Nangli Umarpur, and Rect.

5 Killa No.

25 No.16 Killa No.2 min (0-9),3 min (3-5),4 min (0-18), Rect.

17 Killa No.

1 (4-6) situated Estates of Village Badshahpur, Tehsil & (Haryana] (hereinafter collectively referred to That a collaboration agreement dated 07.05.2 between the complainants as 'Owner'being pa respondent as 'Developer' being party of development of said land by the respond residential plotted colony being developed by i Gurugram by obtaining additional license f authority.

The said land was located adjacent developed by the respondent and part ofthe sa ownership with the respondent. plaint No.3904 023 & 4 others nd things as may f PIot No. f PIot No.

C-63 colony named as ent letter dated t said plot along ent in terms of ndum agreement were owners in re comprised in Nos.13 (8-0), 14 Estates of Village min [3-18), Rect.

6-81, s [8-0), 6/1 ithin the Revenue District Gurgaon s "Said Land"J.

09 was executed of first part and econd part, for nt as a part of in Sector-62 & 65, the competent the colony being land was in joint Page 4 of40 HARERA GURUGRAM d.

That as per the collaboration agreement respondent was required to complete neces works on the said land within 36 months obtaining possession of the said land from possession of said land was to be han complainants to the respondent after obtai approvals, sanctions and licenses agreed t facilitated by the respondent.

The term development work was subiect to extension i agreement between the parties to the collabor e.

That as per the collaboration agreement da costs for implementation of development wor by the respondent whereas the costs of obtai approval(s) and license were to be borne by c as per the collaboration agreement completion of development work complainants were to be allotted 2662 developed plots of the said land agreed to be respondent or an),where else in the reside developed by the respondent.

That, part of said land comprised in Rectangle (8-0), 7 (8-0) & 8 (8-0) was joint with the complainant no. t had 1/6th share in the same. deceitful means obtained ex-parte partition ord orders dated 03.08.2009, 06.08.2009 & 29.1 Assistant Collector, First Grade, Gurgaon (Ha land, other land parcels were also in joint o Page 5 oi 40 plaint No.

3904 023 & 4 others dated by sq. ted 07.05.2009, ry development om the date of omplainants.

The ed over by the ing all necessary be obtained & r completion of terms of mutual ron agreement.

07.05.2009, the were to be borne ing sanction(s) / mplainants.

That 7.05.2009, after e respondent, . per acre of the developed by the I colony being no.

15, Killa no.

4 respondent.

The e respondent by r ofsaid land vide . and vide .2008 passed by na).

Besides said ership with the k HARERA ffi- GURUGI?AM respondent.

In respect ofthose parcels of land obtained ex-parte order of partition.

There cases.

That, on the basis of orders of partiti applied license for development of residential the land admeasuring 95.29505 acre (42.94 being developed as part of the residential pl developed over land measuring 1.02.7 412 acr land license had already been granted on applications, the respondent included the land its share in partition but did not include the sa which had fallen to the share of the complaina That when the complainants came to know a partition and the fact that the respondent had over 95.29505 acre land and in the applicatio had not included the said land or the land whi share ofthe complainants on partition, the com suits bearing Civil Suit No.

114, 115 and 116 decree for perpetual iniunction to restrain th disposing them from the joint land on the basis of partition.

That along with the civil suits, challenged all the ex-parte orders of partition Gurgaon, by filing Appeal No.

73, 74, 75 respectively.

That when the ex-parte orders of the Assistant Collector, First Grade, were n Collector in appeals, the complainants filed the before the Financial Commissioner, Haryana, C Revision Petition No.

230, 231, 232 and 307 of plaint No.

3904 023 & 4 others o, the respondent a total of04 such , the respondent lotted colonv over 5 + 52.351) for tted colony being regarding which .05.2009.

In the hich had fallen to d land or the land s on partition. out the orders of lied for license , the respondent had fallen to the lainants filed civil f 2010 seeking a respondent from f ex-parte orders e complainants bre the Collector, nd 04 of 2 010 ition passed by t stayed by the evision Petitions andigarh, bearing 011, seeking stay Page 6 of40 HARERA ffiGURUGRAIi on ex-parte orders of partition. partition.

In those revisi parte orders of partition passed by Assista Grade, were stayed by the Financial Commi dated 18.01.2011 & 28.02.207L. h.

That Ld. counsel for the complainants 20.01.2071 to the Director General, Town & Haryana (hereinafter referred to as "DGTC applications moved by the respondent for g license over the joint landromprised in Khew 37, submitting that the land was srill joint as of partition had been stayed by the Financial pertinent to mention that these khewats applications moved by the respondent to obtai over 95.29505-acre land.

That in the wake of above circumstances and the applications for license applied by the peril, the respondent induced complainants addendum to collaboration agreement representing that the respondent shall fulfill conditions and to win the faith of compla irrevocably allot 05 plots of total area meas approx. as non-refundable security/consi performance of all of their obligations. addendum agreement dated 19.04.2011 w between the complainants and respondent. addendum agreement, the respondent allotted five separate allotment letters all dated 1.9.04.2 plaint No.3904 023 & 4 others petitions, the ex- t Collector, First oner vide Orders a letter dated ountry Planning, , to reject the nt of additional t no.

32, 33, 38 & e ex-parte orders mmissioner.

It is ere part of the additional license pprehending that ndent were in to enter into an assuring and ll the terms and nants, offered to ring 2160 sq. yd. eration for due accordingly, an s dulv executed t in pursuance of 5 plots by way of 11 viz. (iJ Plot No.

Page 7 of40 dr W" GURUGRAM j.

HARERA A-84 admeasuring 442 sq. yd. (said ploQ, (ii) 442 sq. yd, (iiD A-98 admeasuring 400 admeasuring 400 sq. yd., and (vJ C-63 adm havingtotal area admeasuring 2160 sq. yd., all Hills, Sector-65, Gurugram IHaryana].

That the on complying with their obligations und agreement and vide application dated 27.0 additional license and deposited Rs.24,25,100 I Rs. ,100 I Rs.2,53,000/- as scrutiny fee for the grant ofad -85 admeasuring yd., (iv) I-166A uring 500 sq. yd., tuated in Emerald omplainants kept the addendum 2011 applied for as license fee and itional license qua said land.

That while processing the application moved the complainants ed 77 .07 .201.2 to for additional license, DGTCP wrote a letter d the respondent stating that application for nt of additional acre had been license over said land admeasu 6.0687 examined and ownership of an area admeasu 5.66875 acre had been verified out of total area of 6.06875 .

It was further stated in the letter that an amount of 22.33 crore was plaint No.3904 023 & 4 others outstanding on account of External Development Charges [EDC) against the Additional License No.

113 of 2011 and an amount of Rs.427.14lac was outstanding against the original License No.

10 of 2009 and further an amount of Rs.967.69 lac was outstanding on account of Infrastructure Development Charges (lDC) against License no.

113 of 2011 and accordingly the respondent was requested to deposit the said outstanding amount so that request for grant of additional license over 5.66875 acre land could be considered.

Some other documents pertaining to the financial capacity indicating the paid-up capital ofthe cgrnpany and copies Page I of40 HARERA ffiGURUGRAM of Form-z & 5 issued by MCA, Government of lhrdia, were sought.

However, despite receiving the said letter by tf" ,espondent, the respondent failed to make the requisite ,"Jr"n,, to DCTCP, which resulted in non-grant of additional llcelse for said land in terms ofaddendum agreementdated 19.04.20i1.

That the DGTCp wrote anorher letter dated 29.o3.2ol3granrirlg 30 days,time ro the respondent to clear the aforesaid or,r,rdd,n* amount and recti$, the deficiencies as pointed out in saif, lefter and in the earlier letter dated 17.07.2012, But again, the rJspondent failed to make the payment. ainants vide their dent to clear the th the competent k. mpetent k.

That, facing with the above situation, the com letter dated 26.04.201,3 requested the respo outstanding dues and to take up the matter plaint No.3904 023 & 4 others authorityto resolvethe issue either by making payment or ifthere is any ambiguity therein for reconciliation thereol so that the additional license on the said land could be granted.

The complainants in said letter showed their readiness & willingness to perform their remaining part oF obligations, if any, as detailed in the addendum agreement.

The respondent neither replied to the Ietter nor cleared the outstanding dues.

That the information, which was to be supplied by the complainant$ was furnished to DGTCP vide letters dated 29.07.201.3 & 02.d8.2013.

That the complainants also wrote a letter dated 14.10.2013 to the DGTCp requesting for grant of license over said land rfreasuring 5.66875 acre submitting that in the capacity of landow{er they had made all compliances and had provided informatioir required by the department.

It was further stated in thd lener that the Page 9 oF40 \T] HARERA GURUGRAM complainants, as a landowner, were ready to flay the license fee, conversion charges, EDC, IDC, bank guarantee Fnd other charges, as required under the Haryana Development & Regulations of Urban Areas Act 1975 and Rules framed thereuhder.

It shows that the complainants had discharged part of their obligations under the addendum agreement and were ready to {ischarge all other obligations pursuant to the grant of LOI/Licen$.

That vide letter dated t2.05.2074, DGTEp granted last opportunity to the respondent to clear the outstanding dues pertaining to the various licenses granted making it clear that if the dues were not cle for additional license over said land admeasu[ing 5.66875 acre would be rejected. rejected.

But despite last opportunib, the respondent did not clear its outstanding dues and it showed that the respondent was not interested in getting additional license for said land and that the purpose of executing the addendum agreement was to deceive the complainants.

The motive of the respondent was only to get rid of the civil suits / petitions filed by the complainants and induced them to wlthdraw the same, so that the respondent could get the license for development of its land, which it got.

That, realizing the fact that the complainants have been cheated and the respondent had no inclination to clear the the respondent , the application outstanding dues, the complainants were Ieft w[th no other option application for additional license and seek fee paid with the application.

Consequently, 16.05.2014 was moved by the complainants ication for additionayice4se. i Page l0 or 40 /\.l\ I but to withdraw the refund of the license an application dated to withdraw the appl laint No.3904 023 & 4 others ffiIARERA #ounueRnHr m.

That vide letter dated 04.06.2014, the requesr the complainants complainants for was accepted, and the application moved by th additional license was rejected as withdrawn thE DGTCP ANd the security amount of Rs.2,50,514/- paid b the complainants d committed the was forfeited.

That since the respondent h breach of the terms & conditions of the colla ration agreement and addendum agreement, the complaina ts in terms of "termination clause" of the addendum agreem nt terminated the collaboration agreement and addendum a ment and the respondent was intimated about the same 30.04.2015.

That the complaints vide its lette had also requested the respondent to exec and register a formal cancellation deed for cancellation of collaboration agreement but to no avail.

That the complainants served the respondent {,ith a Legal Notice dated 27.06.201,9 seeking Rs. eeking Rs.10 crore as dama$es for committinB breach of terms & conditions of the collaboration agreement and addendum agreement.

But the respondent again did not reply to the said notice. ln fact, the respondent did not reply to cven a single letter sent to them by the complainantF.

In other words, plaint No.3904 023 & 4 others de letter dated dated 17.05.2017 n. there was no communication from the respondent throughout.

There were 02 clauses in the addendum agreement regarding "dispute resolution and jurisdiction", Clause-36 & 37.

Clause-36 provided the aggrieved party with a remedy through the appropriate court of law in case of any conflict or difference inter- alia as mentioned in Clause-3, 6 & 9 of the addendum agreement.

Clause-37 provided for arbitration for remaining disputes, I Pase 11 of40 ^)'\ HARERA ffiGURUGRAM o.

That the complainants invoked Clause-37 agreement vide notice dated 20.11.2019 an respondent either to: "Handover physical possession of 05 plots 2160 sqyd. and further reimburse a sum of kl the losses sulfered by the comploinqnts as f the addendum called upon the easunng crore for ne time settlement within 30 doys t'rom the dote of is. uance of notice claiming that the complqinonts had acq ired title over those 05 plots" OR Appoint sn Arbitrotor as provided in colldborotion agreement / oddendum qgreement within 07 loys from the date of receipt ofthe notice ond to proceed fo resolve the dispute in accordqnce with orbitration +louse of p. co lloborqtion agreemer1i / adde nd u m og reemelt." That it was for the first time, the respondent ieplied said notice vide letter dated, 24.12.2079.

In the reply, the respondent inter- alia pleaded that the dispute raised in the notic! would fall under Clause-36 of the addendum agreement and was thus not arbitrable.

That the complainants filed an Arbitration petition bearing No. earing No.

637 of 2021 before the Hon'ble Delhi IIigh Courr under Section- 11[5) & 6 ofthe Arbitration & Conciliation Act 1996 for appointment of Arbitrator.

The Hon'ble High Court, afrer hearing the parties allowed the application vide Order dated 24.1.2.2027. q.

That the respondent challenged the order passed by the Hon'ble Delhi High Court before the Hon'ble Supreme Court of India by filing Civil Appeal No.6774 ot 2022(5pecial LeJve petition (Civii No.

3575 of2022J inter-alia on the ground that the dispute raised by the complainants was with respect ro Clau[e-S, 6 & 9 of the addendum agreement and would thus fatt wifhin the ambit of Clause-36 of the collaboration agreement and frot Clause-37 and plaint No.3904 023 & 4 others Ai Page 12 of40 HARERA MGURUGRAI/ the application afresh and to pass an appro riate order after holding a preliminary inquiry / review on wh arbitrable or not and / or whether the dispute 36 ofthe addendum agreement or not. r.

That the Hon'ble High Court while heari the matter on 09.02.2023 noted that there were 02 claims o the complainants ion of 05 plots r damages to the (petitioners therein), one was for poss admeasuring 2160 sq. yd. and another was fr tune of Rs.10 crore.

The Hon'ble High Court rther noted that ssion of 05 plots ration agreement inants stated that the claim for possession of 05 plots was not ng pressed in the proceeding befole the Hon'ble High Court.

The Hon'ble Court further noted that the respondent had also raised the issue of limitation on the ground that addendum agreement was stated to have been terminated on 30.04.2015 and as per contention of the respondent, even if it were assumed that the second claim is outside the scope of Clauses-3, 6 & 9, that would be clearly barred by limitation in view of the fact that the arbitration was invoked by way of notice dated 20.11.2079.

That ke{ping in view the observations made by the Hon'ble High Court in the aforesaid order dated 09.02. ted 09.02.2023 and the contention ofthe respondenr that the claim of the complainants regarding dama$es was barred by plaint No.3904 023 & 4 others dated 30.09.2022 set-aside the order passed b Court and remitted the matter to the Hon,ble H according to the respondent, the claim for pos would fall under Clauses-3, 6 & 9 of the collab and was thus not arbitrable.

At this, the compl the Hon'ble High Court to decide er the dispute is lls within Clause- Page 13 of 40 1'l HARERA ffiGURUGRAII being pressed subiect to the right of the complainants being reserved to approach the appropriate forum as permissible in Iaw and the second claim was also not being sed in the light of the objection which was taken that the addgndum agreement itself had been terminated on 30.04.2 015 and ttlus the claim of the complainants for damages was barred by limitation.

The S.

That, aforesaid 05 plots admeasuring 2160 sq. yd., including said plot, were allotted by the respondent to the pomplainants as a non-refundable security / consideration for due performance of all their obligations contained in the addendufn agreement with clear stipulation that with the allotment the respondent shall be left with no right, title or interest whatsoever kind or nature in 2160 sq. yd. plots and their ownership shall vest with the complainants absolutely & forever.

That the perusal of the aforesaid clauses would show that the allotment of 05 plots admeasuring 2160 sq. yd., including said plot, by the respondent was as a non-refu]ndable security / consideration for due performance of all the obligations by the complainants and with the allotment, the respof-rdent was left with no right, title or interest in those plots and the fwnership of those plots vested with the complainants absolutlly & forever.

It is further borne out from the aforesaid clars{s that one of the considerations for allotment ofplots was withlrawal of litigations igations amicably. plaint No.

3904 023 & 4 others 20.04. ers 20.04.2023 submitted before the Hon'ble Hi claim in respect of 05 plots admeasuring 21 h Court that the 0 sq.yd. was not by the complainants and resolving ofpending I Page 14 of40 ,VV] HARERA M" GURUGIiAM by the complainants immediately on execution of addendum agreement and accordingly the complainant{ performed their part of all the obligations.

That the facts & cirfumstances of the case leaves no doubt that it is the respondlnt who failed ro discharge its obligations under the collaboratifn agreement and addendum agreement.

Had the respondent clfared the dues as demanded by the DGTCP to grant license for tlfe said land of the complainants, the license to develop the said l[nd as part of the residential plotted colony,being developed b[, the respondent would have been granted.

Relief sought by the complainants: The complainants have sought following relief: a.

Direct the respondent to handover the vacant possession of the said plot and execute and get registered the conveyance deed of the said plot in favor of the complainants.

8.

0n the date of hearing, the authority explained to the respondent/promoter about the contraventions as alleged to have been committed in relation to section 11(4J (a) of the act to plead guilty or not to plead guilty.

Reply by the respondent.

The respondent has contested the complaint on the following grounds: a.

That the complainants have got no locus standi or cause of action to file the present complaint.

The present complaint is based on an erroneous interpretation ofthe provisions ofthe Rera Act,2 016 and the rules made thereunder as well as an incorrect understanding of the terms and conditions of the collaboration III Page 15 of40 . \1 , il plaint No.3904 023 & 4 others B.

7.

C.

9.

HARERA ffiGURUGIIAI/ shall be evident from the submissions made in !he following paras of the present reply. ent reply.

The respondent craves lefve of this Hon,ble Authority to refer and rely upon the terms and conditions set out in the addendum agreement in detail at the tinle of hearing of the present complaint, so as to bring out mutu{l obligations and responsibilities of the Respondent as well as complainants. b.

That the compiainants are estopped by their 6wn acts, conduct, acquiescence, laches, omissions etc. from filing the present complaint.

The complainants have themselve! failed to perform their part of the obligations under the collabQration agreement dated 07.05.2009 as well as the addendum agreement dated 19.04.2017.

Further, the complainants had themselves terminated the addendum agreement dated 19.04.2011, and as such now do not have any locus standi to seek enforcement of the terms and conditions of the agreement which already stands terminated as per the own submissions of the complainants.

The complainants herein are no longer an Allottee, as defined under the RERA Act and the allotment letters filed by the complainant are null and void and vest no righ[ or entitlement to the complainants.

Complainants cannot seek part performance of an agreement, wherein they are recusirfg themselves of performance of their own obligations, while are seeking enforcement of the performance by the respondent herein.

It is also submitted that this authority is not the appropriate forum for plaint No.3904 023 & 4 others agreement dated 07.05.2009 as well as collaboration agreement dated 07.05.2009 da ts addendum to 19.04.2011, as Page 16 of40 nt HARERA ffi GURUGRAM allotment of plot by .Agreement dated Agreement dated by virtue of their d. addendum agreement.

In the absence ofthe status ofan "Allottee" under the Act, the present complaint is not m+intainable before this Hon'ble Authority and liable to be dismissefi.

That a bare perusal ofthe documents attached lf the complalnant with the present complaint, specifically {re notice dated 20.'J.f.2079 and the reply dated 24.12. ted 24.12.2019, preferred by the respondent to the said Notice, would satisfy this Hon'ble Authority that the claim made by ttp. complainant neinf in tfre nature of specific performance/ allotment of the plots by virtue of the addendum agreement dated 19.04.2011, tl", {""n made after a gap of L2 years, and are thus neither enforceable, nor maintainable before any Court or Authority.

That the Claim of the Complainant, seeking virtue of the Terminated Collaboration 07.05.2009 and Terminated Addendum L9.04.2011 are not only not maintainable plaint No.3904 023 & 4 others termination, but are also barred by limitation.

It is alternatively submitted that the alleged right to allotment arose to the Complainant in 2011, with Clause 6 of the Add{ndum Agreement specifiring 18 months from the date ofgrant oflifence, for hand ing over the plot. tt is also a matter of record anf admitted by the Complainants that they withdrew the applic{tion for grant of licence on 16.05.2014 and further terminated tle said Addendum Agreement on 30.04.2015.

Thus, neither t{e right to clalm reciprocal performance of the Addendum Rgfu"r"nt survived, nor any action to claim the plot was undeftaken within the e claims raised by limitation period.

It is hereby submitted Page 17 of 40 I plaint No.3904 023 & 4 others HARERA ffiGURUGI?AN/ tale claim and are judication ofthe Complainant have since long been a dead and highly time barred, as such there cannot be any same as per the Law. e.

That the present Complaint is nothing but ofrty an attempt of forum hunting bythe Complainanrs. fhe Comnl{inants admttedly have been venturing out to all forums and not htving received any respite from any forum, the Complainants have [nocked the doors of this Hon'ble Authority.

The Complainants had also invoked Arbitration proceedings sedkiilg claim ofdamaels of ns.

10 Crores has been challenged by the Complainant in Crinfinal Revision.

The said matter is pending as on date. s on date.

As the Complhinant was unable to get any favourable order from any Cou[t7 Tribunal, the and for possession of the plots under the Terminated Addenclum Agreement.

It is also a matter of record that the said invocation was challenged upto the Hon'ble Supreme Court, whereby, the Hon'ble Supreme Court vide its Order dated 30.09.2022 had quashed and set aside the Order of the High Court, of appointing the Arbitrator.

It is further a matter of record that the Complainant itself had given a statement before the Hon'ble High Court of Delh r on 20.04.2023 for not pressing its claims in light of the objections raised by the Respondent with respect to the claims being barred by limitation.

It is also brought to the notice of this Hon'ble Authority that the Complainants also filed multiple complaints with Police and ultimately an application u/s 156(31 of CrpC,1973 was filed by the Complainants, the request of which was declined by the Learned Court vide order dated 05.07.2019 which Order Page 18 of40 & plaint No.

3904 023 & 4 others HARERA #" GURUGRAM Complainant has now resorted to the present $roceedings.

Thus, it is evident that the Complainants are forum s{opping.

That the Complainants are not entitled to any [elief whatsoever, much less the stay/ injunction, as sought in the ifrterim application for the reason that neither is there any legal rilfrt in favour of the Complainants, by virtue of the fact that the $mplainants have themselves failed to perform their obligltions under rhe Cotlaboration Agreement dated 07.05.2009 [r the eddendum Agreement dated 19.04.2011.

Moreover, the fomplainants had themselves withdrawn tho application for gr{nt of licence and even terminated the Collaboration and edder]dum Agreemenrs.

The Complainants are left r,irith no right to seek ]ny interim or final relief. al relief.

The Claims ofthe Complainants are prim{ facie and ex-facie neither maintainable nor bear any merits and as such no injunction ought to be granted in favour of the Complainants, more so, when they are themselves grossly delayed by 12 years in approaching this forum.

That contrary to the allegations made in the Complaint, in fact, it is the Complainants themselves who, despite specifically agreeing to the terms of the Contract have not abided by the Contract.

Besides agreeing to bear all the charges towards application for License and any other fee/charge as per Clause 2, including the charges and fees of the architect(sl, preparatiqn of plans as also all other statutory fees and charges incidentals including securify fees, license fees, conversion charges, internal/ external development charges, infrastructure development charges etc. (as per clause 71, the Complainants had specifically promised in the I Puge 19 oF40 l\ti HARERA ffiGURUGRAN/ Addendum Agreement dated 19.04.201 Clause 33, which is as under: "Thot it is agreed between the parties that in \he event, the lqnd is compulsorily ocquired and even thlugh this Agreement would be terminated, notwit\stqnding anything else contoined in this Agreement, t\e Owner shall be entitled to retain the allotment of the pl\tted oreo of 2160 sq. yords subject to poyment of EDC a\d IDC by the OWNERto the DEVELOPERfoT the soid 2164 sq. yards plotted oreo ond in lieu thereof the DEVELOPE\. shall be entiled to the title, rights, interest including thP right to compensation in land beoring Khewot No.

99, Rectangle No.

6 Revenue No.

12/2{5-7), 13(8-0) to the ext+nt of 1/5 shqre and Khewat No.38, Rectangle No.73, Revenue No.

20(7.2), 21/1(6-0), 22/1(6-2) to the extent of 90/384 shore thus totql lond meosuring 0.9 acres fulling in the revenue estate of villoge Nongll Tehsil q Distict Gurugrom (herein ofter rekrred to as the soid p. he soid p.9 ocres) ond hove agreed to execute qn irrevocoble Genelol Power of Attomey in favour of the DEVELOPER/ its olithorized representative(s) to do oll acts, deeds ond thi\gs which the DEVELOPER in its prudence might deem oryropriote to sell, market, convey and receive considerotion in its own favour, clqim compensation from the Governnent etc. with regard to the said 0.9 acres and further undertakes to get the some duly registered with the Reg i ste r i ng author i t ies, " h.

The Respondent had undisputedly allotted plots to the Complainants, which was subject to due performance of all the obligations contained in the agreement including the grant of License of collaborated area of 6.06875 acres.

Further, the Complainants failed to execute the said GPA (as mentioned in Clause 33 of the Addendum Agreementl in favour of the Respondent Company or its nominees.

Moreover, the Complainants have not disclosed the fact that out of the 0.98 acres Iand, promised by them,0.44 acres stands acquired by the Government against which, the Complainants have appropriated remaining land Page 20 of40 laint No.

3904 023 & 4 others Termination 'l the compensation amount also HARERA ffiGURUGRAI/ J. admeasuring .054375 acres have been sold by the Complainants to third party which is evident from the mutatioh no.

726 [bearing Vasika No.

21726/1, dated 11.11.2016) and $ale Deed bearing Vasika No.731, which are annexed herewitlr] as Annexure R- 2(colly).

The Complainants have concealed this material fact from the Hon'ble Authority and as such they have cr{ated a situation or are Ieft with the situation where they have tliemselves become incapable ofperformance oftheir part ofthe obligations under the Agreements.

Further, it is the own admitted case of the Complainants that they have withdrawn the License application vide letter dated 16.05.2014 {Annexure 36 - Page 244 oJ the Complaint) and terminated the Agreements. greements. [hus, as on date, nothing survives in favour ofthe Complainants to come before this Hon'ble Authority and claim the reliefs as prayed for.

The Complainants have moulded the true and correct facts, to suit their malafide needs and misleading this Hon'ble Authority.'lhe respondent herein below shall narrate the true facts on record for the ease and convenience, which shall make it evident that thc Complainants are not entitled to any relief whatsoever.

That a collaboration agreement dated 07.05.2Q09 (registered on 22.04.2071) had been executed between Coniplainants and the Respondent for development of land with afea approximately 6.06875 (hereinafter referred to as the "said lafrd"J owned by the complainants at Village Nangli and Badshahpulr, Tehsil & District Gurugram, Haryana into a residential plott{d colony namely "Emerald Hills" for the land admeasuring 102.7141 acres located in Sector 62 & 65, Gurgaon, being developedTby the Company under plaint No.3904 023 & 4 others Page 27 of 40 HARERA ffi GURUGRAIU the License No.10 of 2009 (LC-1058).

The cofrtents thereol be read as a part and parcel, which are not being r[peated herein for the sake of brevity. k.

That during the pendency of the aforesBid collaboration agreement, Complainant Companies got enta[gled into certain litigations with the group companies ofthe ResLondent respect of some land adiacent to the collaborated tana Jna the residential colony being developed by the Respondent.

I.

That on lg.O4.20:rt,the plrties agreeing ,o "lO ,,, the litigation was agreed between the parties that the parties would endeavour to file an application for grant of license with respect to the collaborated land and the owner was supposed to bear all the charges.

That the Co[rplainants, further vide Addendum agreement agreed to bear all the charges towafds application for License and any other fee/charges (as per Clause Z) including the charges and fees of the architect(s), preparation of plans as also all other stat other statutory fees and charges incidentals including security fees, license fees, conversion charges, internal/external development charges etc. (as per Clause 7). n.

That it was further agreed under Clause 2, that only after the said land got released from acquisition proceedings and the same plaint No.3904 of2023 & 4 others an addendum to 1 with mutual capable of being ect to after being as per Clause 2, it and disputes amongst themselves, executed Collaboration Agreement dated 19.04.2 01 understanding that the said land was still Iicensed into a residential plotted colony subi released from ongoing acquisition proceedings. m.

That as per the Addendum Agreement, wherein 4/\ Page 22 of 40 HARERA MGURUGRAI/ got/gets licensed, the development work on fhe same shall be carried out by the Respondent; however, the coJt and ";;r", "; carrying out development work was supposed fo be borne by the Complainants.

The Complainants had agreed lo pay Rs. +O t-acs per acres to the Respondent for carrying out Jevelopment work and for providing all kinds of amenities, facililies, utilities, basic infrastructure facilities which includes lighting etc. p.

That it was also agreed between the parties that the Complainants, on their own shall pursue the license application for additional license to the Respondent's aforesaid License No.

10 of 2 009.

That as per the Clause 3 ofthe said Addendum agreement, it was agreed that the Respondent shall irrevocably allot 5 plots (i.e., of total area measuring 2160 Sq. yardsJ to Complainant as a non- refundable security/consideration for the due performance of all its obligation contained herein or imposed by DTCp/other competent authority in development of township upon the said land.

The Respondent allotted the following plots to the Complainant in discharge of its obligations under the Adtlendum Agreement. q.

That it was also agreed between the parties tha!the Complainants were entitled to allotment of 2662 Sq. f 2662 Sq. yards o[ plotted area per acres of the licensed land.

It was agreed that wilhin a period of 60 days from the date of grant of license, the Comflainant would be allotted their share of the developed plots in the said land or anywhere else in the residential colony being developed by the Respondent after proportionately adiusting the 2160 Sq. yards of developed plots already allotted ro them (i.e., apjusting rhe 2160 I Coinplaint No.

3904 ofb023 & + others o.

Page 23 ol40 ,{rl HARERA MGURUGRAI/ r, Sq. yards in the proportion ofthe area on whi received out of the total area 6.06875). license was to be That it was agreed between the parties that in the event, the land was compulsorily acquired and even though the said agreement would be terminated, notwithstanding anything contained in this agreement, the Complainant would be entitled to retain the allotment of the plotted area of 2160 sq. yards subiect to the payment of EDC and IDC by the Complainant to the Respondent for the said 2160 sq. yards plotted area and in lieu thereol the Respondent shall be entitled to the title, rights interests including the right to compensation in land bearing Khewat no.

99 Rectangle no.

12 /2(5-7), 13 (8-01 to rhe extent of 1/5 share and Khewat no.38 Rectangle no.13 revenue n o.2O(T -Z), 21 /1(6-0),ZZ /1(6-2) to the extenr of 90/384 share thus rotal land measuring 0.9 acres falling in the revenue estate ofvillage Nangli Umarpur, Tehsil & District Gurugram (hereinafter referred to as the said 0.9 acres) and the Complainant had agreed to execute an irrevocable General Power of Attorney in favour of the Respondent.

The Complainant had entirely failed to fulfil rheir part of obligations contained in the Clause 33.

Neither the complainant had paid the EDC and IDC, nor executed this General Power ofAttorney.

That as agreed, the Complainants themselves applied for additional license to the Respondent's License No. icense No.

10 OF 2009 vide license application LC-1058L for setting up a residential colony on the collaborated land and deposited the requisite fee along with the said application.

The Complainants were under the plaint No.

3904 023 & 4 others PaEe 24 of 40 4, GURUGRAM HARERA t. obligation to pursue their license application {nd follow up with the DTCP.

They were also under the obligatiof to provide all the relevant documents pertaining to the collabor{ted land with the DTCP as and when demanded.

However, it apfears thar despire knowing the deficiency in the license applicatfon LC-10S81, the Complainants did not remove the deficiency anI failed to provide the requisite documents to DTCP, ", "rtJa for bv DTCp.

Furthermore, The Complainants have thems{lves alleged that they later on withdrew thrt.iicense applicatioJ from DTCp.

The Complainant could not have withdrawn the aJplication withour the consent of the Respondent.

It is also a matter of record that they had applied for the agreed 6.06875 acres whereas the DTCp has examined and verified the ownership of only 5.66g75 acres land.

That the Complainants, till date have not paid any amount in respect to EDC and IDC and also failed to execute the said GpA in favor of the Respondent or its nominees.

Moreover, the Complainants have not disclosed the fact that out ofthe 0.9g acres land promised by them, 0.44 acres stand acquired by the Government against which the Coriplainant have appropriated the compensation and the remaining land admeasuring.054375 acres have been sold by the ComDlainants to third party which is evident from the mutatioil no.726 [bearins Vasika No.

2i,726/7 dated j.1.11.2016).

The Cdmphinants are not left with any land out of 0,9 acres as proniised and as such they have themselves created a situation Lr left with the situation where they have become incapaUl[ of performing IJ page 2s or40 ,z,ltr) VU Cornplaint No.

3904 ofP023&4others HARERA M GURUGRAM u.

URUGRAM u. their part ofobligations, Thus, the CollaboratiOn Agreement and the Addendum Agreement is incapable of performance and any right, being claimed thereto, by the Complainants, is unenforceable.

That the Complainants have themselves failed to honour their own obligations as envisaged under the Collaboration Agreement as well as the Addendum Agreement.

Admittedly, the allotment of the Complainants was contingent upon the Complainants, honouring and complying with their reciprocal obligations and not by merely signing the Addendum Agreement.

It is an admitted matter of record that the Complainants neither pursued the License Application, nor cleared the deficiencies as raised by the DTCP in the License Application, nor borne all charges and expenses, nor paid cost of EDC/ IDC, nor paid the compensation against land acquisition to the Respondent nor fulfilled any other obligation that was cast upon them under the Addendum Agreement.

That the allotment to the Complainants was contingent upon the grant of license as is evident from Clause 32 of the Addendum Agreement, where it was also clearly agreed that the conlplainant will not hold respondent liable in any manner whatsoever for non- receipt/refusal of permission Further, upon the land not being released from acquisition, the Addendum Agreement was deemed to be automatically terminated and therefore, any rights or entitlement, including the allotment would also stand extinguished.

It is also a matter of record that not only did the Complainants not pursue the application for grant of additional plaint No.3904 023 & 4 others 1) Page 26 of 40 plaint No.3904 023 & 4 others Licences, as was obligated on them under the Addendunr Agreement, they are also themselves cancelled/terminated the Addendum Agreement, vide their letter dated 30.04.201S, The Complainants are attempting to take advantage of their own wrong. own wrong.

It Is shocking to see the conduct of the Complainants, who entered into the Addendum Agreement, wherein they have failed to justify their lapse, non-performance of their obligations and at the same time, as a matter ofinvisible, vanished and extinguished rights claiming the allotment of plots, more so, when the Agreement has itself been cancelled by the Complainants.

Moreover, the land under the Addendum Agreernent has not only not been released from the acquisition, but a part of the balance available land out of 0.9 acre has also been sold by the Complainants to third parties clearly in contravention to the ffiIAREIA ffiouRuennHl Addendum Agreement.

Further, it is a matter 0f record that the claim ofthe Complainants is grossly time barrefl and incapable of any performance, which infact is also evident from the 0rder of rhe Hon'ble High court of Delhi dated 20.04.2023, in Arb p.

637 of 2027, wherein the Complainants have themselves withdrawn their claims on the objection of the Respondent. lt is also noteworthy that the Complainants have not been granted any relief whatsoever, despite having approached several forums, including the filing of several criminal Complaints.

The present proceedings are also a futile, misleading attempt of the Complainants to mislead this Hon'ble Authority into granting some reliefto the Complainants, Page 27 of 40 4, ffi& 10.

1L.

D, t2.

HARERA GURUGRAM Written submissions have been filed by both the pa+ties and the same have been taken on record and perused further.

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

Their authenticity is not in dispute.

Hence, the fomplaint can be decided on the basis of those undisputed document{ and submissions made by the parties.

Jurisdiction of the authority The authority observes that it has territorial as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below: D.l Territorial iurisdiction 13.

As per notification no. cation no.

1/92/2077-7TCP dated 74,72.2077 issued by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose 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.

D.ll Subiect matter iurisdiction 14.

Section 11[4J[a) of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 1 1(4](a] is reproduced as hereunder: Section 11 fi1 rne promoter snotl- (a) be responsible Ior oll obligations, responsibilities ond functions under the provisions of this Act or the rules and regulations mode thereunder or to the ollottees oi per the agreement lor sole, or to the association of allottees, os the cose may be, till the conveyqnce ofoll the qportments, plots or buildings, os the case may be. to the ollofeeb, or the l PaAezB of +0 ,4 ,, It plaint No.3904 023 & 4 others HARERA ffiGURUG]?AI/ common oreos to the association of ollottees or the competent outhority, os the case may be; Section 34 - Functions of the Aut hority : 344 of the Act provides to ensure complianc+ of the obligotions cost upon the promoters, Lhe allottees ond the reol estate ogents under this Act ond the r4les ond reg u lo tions mode thereunder.

So, in view of the provisions of the Act quoted abov{, the authority has complete iurisdiction to decide the complain] regarding non- compliance of obligations by the promoter learing u[id" .ornpensation which is to be decided by the adjudicating officer if pursued by the complainants at a later stage.

Findings on the relief sought by the complainantp, E.I.

Direct the respondent to handover the vacant pos[ession ofthe said plot and execute and get regiistered the conveyanfe deed of the said plot in favor ofthe complainants.

16. nants.

16.

In the present matter the complainant no.

1 i.e., Tarun Aggarwal Projects Pvt.

Ltd. jointly with complainant no.

2 i.e., Prajakta Colonizers Pvt.

Ltd. entered into a registered collaboration agreement with the respondent company i.e., Emaar India Ltd. (formerly known as Emaar MGF Land Ltd.l on 07.05.2009.

As per the terms of the collaboration agreement the complainants were the Iandowner of 6,06875 acres of land situated in revenue estate of village Nangli & Badshahpur, Gurugram.

Further, it was agreed that the complainants-owner shall get all necessary approvals/sanctions from the competent authority required for obtaining the license and all costs/expenses towards the license fees, scrutiny fee, EDC, IDC and all incidental charges shall also be borne by the owner itself.

Also, after obtaining all necessary approvals/sanctions the complainants/owner shall handover the vacant physical possession of the licensed land to the developer/respondent for carrying out necessary development work plaint No.3904 023 & 4 others 15.

E.

4-l Page29 of 40 HARERA ffi"GURUGRAI,,,I as per the specifications agreed between the parti+ or permitted by the competent authorities.

As per clause + of lfre collaboration agreement the developer/respondent was obligatefi to complete the development works on licensed land of the owner Jvittrin a period of 36 months from the date of obtaining possession olthe licensed land from the owner.

Furthermolre, the owner/cof plainants were obligated to keep all the necessary approvals/sanctions valid during the period of 36 months or the extended term being mutually agreed between the parties.

As per clause 13 of the said collaboration agreement the owner/complainants, shall be entitled for the allotmenr of 2662 sq. yards. per acre of the developed plots iF the said land or anywhere else in the residential colony being the developer. developer.

Thereafter, the other landowners of the adjoining land got the ex-parte partition order against the complainants by the Assirstant collector on 03.08.2009, 06.08.2009 & 29.72.2008 and on basis of rhose ex-parte partition orders applied for the license of the said land.

The complainants then filed civil suits seeking decree for perpetual injunction to restrain the respondent from disposing them from the joint land on basis of ex-parte orders.

Also, the complainants challenged the said ex-parte partition orders before, collector in 2010 and then filed revision petition before financial commissioner in 2011 seeking stay on ex-parte partition orders.

The said ex-parte partition orders were stayed by the financial commission, Gurugram vide order dated 18.01.2 011 &28.02.2077.

17.

Amid, the above said disputes, the respondent and complainants again entered into an addendum agreement dated 19.04.2011 wherein the parties mutually negotiated and agreed to resolv_e the disputes and as / Page 30 of40 I I plaint No.3904 023 & 4 others ffHARERA # eunuerw security/consideration for due performance of all its obligations contained in the addendum or imposed by competent authorities upon the said land.

Also, it was further agreed that this 2160 sq. yards. of developed plots already allotted shall be ad)usted in the 2662 sq. yards of developed area per acre of the licensed area. ln lieu of the said addendum agreement the complainant no.

1 vide 5 different allotment letters dated 19.04.2011 was allotted 5 plots bearing no.

A-84 admeasuring 442 sq. yards., A-85 admeasuring 442 sq. yards., A-98 admeasuring 400 sq. yards., L-156A admeasuring 400 sq. yards, & C- 63 admeasuring 500 sq. yards whereas the total area being allotted to the complainant no.

1 as per allotment letter is 2184 sq. yards instead of 2160 sq. yards.

Further as per clause 13 of the addendum agreement the owner shall have absolute right over the above said plots admeasuring 2160 sq. yards. sq. yards. upon withdrawal of litigation by the owner and subject to the terms of clause 33 & 34 of the addendum agreement.

Thereafter, the complainants applied for additiona[ license with the competent authority on 27.04.2011 and then o,l, f O.OS.ZO|+ tt " complainants withdraw the application submitted ,f. *.rn, or,,."nr" and terminated the said collaboration agreement afrd the addendum agreement vide letter dated 30.04.2015.

Thereafter, the complainants served the respondent with the Legal Norice dated Z[.Oe.ZOfO seeXing damages amounting to Rs.

10 Crores for commissioln of breach of the plaint No.

3904 023 & 4 others 18. terms and conditions of Collaboration Agreement fated 07.05.2009 / Page 31 ot 40 \ry HARERA ffi.

GURUGRAM and Addendum Agreement dated 19.04.2011 by thf respondent.

The complainants have also mentioned in the complafnt that they had dispatched Notice dated 20.11.2019 to the respondefrt which had been replied to by the respondent through letter dated Zl.n.ZOO in wtticn the respondent had stated that the dispute raisea bf the complainant was not arbitrable.

Also, the complainants ffled petition for appointment of arbitrator before the Hon'ble Delhi High Court which was allowed vide order dated 24.1.2.2021.

The same jwas challenged by the respondent before Hon'ble.Supleme Court of lndia and was set aside vide order dated 30.09.2lii wherein the matter was returned back to the Hon'ble Delhi High Court for deciding t[e application for appointment of arbitrator afresh.

Further, on 09.02.2023 it was held by the Hon'ble Delhi High Court that the claim of complainants for possession of 05 plots was not arbitrable and therefore the complainants had not pressed the said claim for arbitration and had reserved their right to approach the appropriate forum.

The complainants further decided not to press their claim for damages before Hon'ble Delhi High Court. igh Court.

19, Before dwelling into the merits ofthe case, the incidental issues which are also to be taken into consideration by the authority are: a.

Whether the complainants are covered under the definition of allottee ? b.

Whether the unit was allotted to the complainants and an allotment letter/BBA was signed/issued ? c.

Whether amount of Rs.

1/- has been paid by the complainant ? d.

Whether the possession ofthe subject plot to the complainant vide letter dated 19.04.2071, can be enforced even when the Coinplaint No.

3904 of1023 & 4 others 1"1 Page 32 of40 HARERA P* GURUGRAM 27. plaint No.3904 0f2023&4others F.

20. collaboration agreement and the addendum agreement have already been terminated by the complainants itself vide letter dated 3 0.04.2015?

Findings ofthe authority on issues framed: a.

Whether the complainants are covered under the definition of allottee? b.

Whether the unit was allotted to the complainants and an allotment letter/BBA was signed/issued?

The authority is of the view that the plea of the respondent that the complainants do not quali$r to be an allottee as per the Act is partly maintainable.

The authority observes that the term ,,allottee,, has been defined under section 2(d] of the Act and the same is reproduced as under: "2 ln this Act, unless the context otherwise requires (d) "allottee" in relation to o real estote project means the person towhom a plot, opqrtmentor building, qs the cose may be, has been ollotted, sold (whether os freehold or leasehold) or otherwise transferred by the promoter, and includes the person who subsequently ocquires the said allotmentthrough sale, transfer or othetwise butdoes not include a person to whom such plot, aportment or building, as the case moy be, is given on rent.,, (Enphasis supplied) From a bare perusal of the definition, it becomes evidently clear that the person to whom an apartment, plot or building, as the case may be, has been allotted, sold or otherwise transfer is an allottee and this and this issue has been comprehensively dealt with by the authority in complaint bearing no.

4031 of 2019 titled as Varun Gupta Versus Emaar MGF Land Ltd. (cR / 4031 / 2019).

From a bare perusal of the definition of the term 'allottee', it becomes evidently clear that the complainant no.

1 very well falls within the definition of the term "allottee" as defined in section 2[d] of the Act. ,IT 22.

Page 33 of40 HARERA GURUGRAM The authority observes that although the collabo dated 07.05.2009 and the addendum agreement were executed between complainants and the ndent whereas, the plot in question was allotted to the complai t no.

1 only vide nes that since no allotment letter dated 19.04.2011.

Therefore, the o allotment letter has ever been issued by the respo dent in favour of tion agreement ated 19.04.2011 erefore, it can be ction 2(d) of the complainant no.2 i.e., Pra.iakta Colonizers pvt.

Ltd. said that complainant no.2 is not an allottee as per Act and accordingly, the claims sought by complai ant no.

2 stands redundant. c.

Whether amount ofRs.

1/- has been paid by the as per the allotment letter dated 19.O4.ZOLL? mplainant no.

1 23.

The authority has observed that no doubt an allotment letter dated 79.04.2011 has been issued in favour of complair{ant no.

1 by the respondent company but the said allotment of plot was against the consideration of 1 7/-.

The complainants in their complaint have nowhere annexed the proof of having paid t 1/- against each plot. d.

Whether the possession ofthe subiect plot to the complainant vide letter dated L9,O4,Z0LL can be enforced even when the collaboratiotr agreement and the addendum agreement have already been terminated by the complainants itself vide letter dated 30.04.2015?

24.

The authority after consideration of the documents placed on record, written submissions filed, and the plea advanced by both the parties observes that the allotment of 5 plots vide addendu{n agreement was subject to the terms of clause 33 & 34 of the 34 of the adde{rdum agreement.

Clauses 33 & 34 are produced below for the ready reference: "33.

Thqt it is ogreed between the parties that in the event, the land is compulsorily acquired and even though this Agreement would be terminoted, notwiths[anding onything else contained in Lhis AgreenJent, thl1wner k Pase34ot4o plaint No.3904 023 & 4 others HARERA ffiGURUGRAM Corlplaint No.3904 of7023&4others shall be entitled to retointhe ollotmentofthe plo4ted area of 2160 sq. yards subject to poyment of EDC ond tDC by the OWNERto the DEVELOPERIoT the soid 2160 pq. yords plotted oreo ond in lieu thereof the DEVELOPE\sholl be entitled to the title, rights, interest including th4right to compensotion in lond beoring Khewot No.99, Rbctongle No.

12/2(5-7), 13(B-0) to the extellt of 1/5 share ond Khewot No.38, Rectqngle No.

13, Revpnue No.

20(7-Z).

21/1(6-0), 22/1(6-2) Lo the extent ol90/384 shore thus rotol land meosuring 0.9 acres folli\g in the revenue estate o[ villoge Nongli, Tehsil & District Curugrqm (herein ofter rekrred to as the said 019 acres) ond have ogreed to execute on irrevocoble GenerFl Power of Attorney in favour of the DEVELOPER/ its outhorized representotives) to do all octs, deeds ond thingsv!hich the DEVEL0PER in i6 prudence might deem appropriote to sell, morket, convey ond receive considerotion i4 its own fovour, claim compensation from the Governryent erc. wilh regord to the said 0.9 ocres ond further unlertokes to get Lhe some duly registered with the Rehisrcring authorities.

34. tn the event ofthe licence being granted Ior o port of the said Land, the OWNER shatl be entitled to the qllotment of the developed area after proportionately adjusting the 2160 sq. yards of developed plots olready allotted to them (i.e. odjusting the 2160 sq. yards in proportion of the areq on which license will be received out of the totol area of 6. area of 6.06875 ocres) os stipqlated in clause 4 obove ond notwithstqnding onything else contained in this Agreemen| the OWNER shqll olso be entitled to retoin the bolonce of the 2160 sq.yqrds plotud areo subject to poymentofEDC ond IDC by the OWNER to the DEVLoPER for the bolance of the 2160 sq. yards plotted area ond in lieu thereof the DEVEL)PER sholl be entitled to the title, rights, interest including tho right to compensstion in proportionate port of the soid 0.9 ocres and the OWNER have ogreed to execute an irrevocoble Generql Power of Attorney in fovour of the DEVEL0PER/itS authorized representotives) tp do all acts, deeds qnd things which the DEVELOPER in its prudence might deem oppropriote to sell, morkef, convey and receive considerotion in its own fovour, cloim compensotion from the Government etc. with regord to the proportionate part of the soid 0,9 ocres and further undertakes to get the some duly registered with the /l / ,(, Re g i ste r i ng au tho r i tie s " Page 35 of40 HARERA ffi GURUGRAM Cor]nplaint No.

3904 ofA023&4others 25.

Clause 33 of Addendum Agreement dated 19.04.2d11 provides that upon acquisition of land of the aforesaid ,rru"r"r1]a, the respondent would realize compensation in respect of land me{suring 0.9 acres.

Significantln clause 34 ofthe Addendum Agreement provides that the area to the extent of which licence would be granied by Town and Country Planning Department would be adjusted in proportion out of plotted area measuring 2160 square yards which f"rr rg.""d to b" allocated to the complainants.

Furthermore, imUo.tfntty Clause 32 of aforesaid Addendum Agreemer* also provides thad the allotment of developed area would be subieit to receipt of licepse and approval from the concerned authority.

26.

Moreover, since as of date the said collaboration and the addendum agreement has been terminated by the complainants itself and the possibility of termination and consequence of termination of Addendum Agreement dated 1,9.04. ed 1,9.04.20LL had been provided in clause 35 of the aforesaid agreement.

It was provided in this clause of aforesaid Addendum Agreement that upon its termination the developer Irespondent) would be entitled to make any representation before any authoriry or person on behalf of the complainants and would be bound to return the original power ofattorney which would remain revoked.

It was further provided in this clause that upon termination, the respondent, its employees, contractors, subcontractors, architects, agents etc. would not be entitled to enter the Iand mentioned in aforesaid Addendum Agreement.

27.

In case the complainants and the respondent had intended that even if Collaboration Agreement dated 07.05.2009 and Addendum Agreement dated 19.04.2011 were cancelled the complainanls would still be Page 36 of40 I * HARERA P-GURUGRAN/ allotted plots measuring 2160 square yards, the same would have been specifically mentioned in clause number 35 of Addendum Agreement dated 19.04.2011.

Once parties enter into an agreement the terms mentioned in the agreement decide their rights and obligations.

No party to an agreement can set up a right different from the terms mentioned in the agreement and seek enforcement ofthe agreement in the manner perceived by such party as is being done by the complainants.

Also, the allotment letter dated 19.04.2011 gives reference of both the Collaboration Agreement dated 07.05.2009 and Addendum Agreement dated 19.04.2011but does not mention that the allotment of plot mentioned therein was to be irrevocably done in favour of the complainants as non-refundable security/consideration.

It is apparent that Flat Buyer's Agreement was to be executed after license.

The complainants themselves addressed application dated 16.05.2014 to Town and Country Planning Department requesting for return of application regarding the grant of license.

Thus, the complainants themselves wanted to put an end to Collaboration Agreement dated 07.05. ted 07.05.2009 and Addendum Agreement dated 19.04.2077.

The counsel for respondent has referred to clause 29 of Addendum Agreement dated 19.04.2011 and has submirted that the aforesaid Addendum Agreement could only be cancelled by mutual consent of parties and the complainants were not entitled to unilaterally terminate the same.

This letter resulted in rejection of application for license by Town and Country Planning Department.

The Ietter dated 30.04.2015 was sent by the complainants to the respondent intimating the respondent that the complainants had withdrawn the application for license and further that the Corhplaint No.

3904 of2023&4others /t, Page 37 of40 HARERA #- GURUGRAM complainants had suffered huge losses and expensef.

Furthermore, in the aforesaid letter of termination, it was nof stated by the complainants that notwithstanding termination of Collaboration Agreement dated 07.05.2009 and Addendum ,fgreement dated 19.04.201,1,, the complainants were still entitled to allotment of plots especially when Clause 35 ofAddendum Agreement dated 19.04.2011 did not provide the allotment of any plotted area despite termination of the aforesaid agreement. lt is also a matter of record that complainants had dispatched letter dated 17.05.20L7 whereby the complainants had communicated to the respondent that the Buyer's Agreement for the 5 plots had not been received by the complainants from the respondent.

Through this letter the complainants never called upon the respondent to dispatch Buyer's Agreements in respect of 5 plots.

The complainants only called upon the respondent to execute and register the Cancellation Deed for confirmation of cancellation of registered Collaboration Agreement dated 07.05.2009.

At this stage the complainants were fully aware that the respondent had not even sent Buyer's Agreements and had failed to deliver physical possession of the plots and yet the complainants chose not to press their claim which is now being belatedly done.

28. done.

28.

It is also a matter of record the complainants had got dispatched another notice dated 20.11.2019 wherein the complainants had claimed that physical possession of 5 plots having plotted area measuring 2160 square yards be handed over to them and further an amount of Rs.10 crores be paid to them towards losses and damages.

Therefore, the complainants for the first time made the request [or delivery of physical possession of 5 plots through aforesaid notice Co#plaint No.3904 ofloz3&+others Page 38 of40 4"- ffi HARERA ffi eunuennrvr dated 20.1.1.2079 after more than four years from *re termination of the contracts made by none other than the complainants themselves.

No explanation for this long delay has been given by the complainants.

All these facts and circumstances as well as documents clearly establish that the complainants have miserably failed to prove that they are entitled to allotment, delivery of possession and transfer of title in respect of 5 plots having plotted area measuring 2160 square yards.

There is also a mismatch in the area set up by the complainants in the 5 complaints and documents produced by complainants themselves on case file.

29.

Accordingly, the authori!y observed that the present compliant filed by the complainant is not maintainable for two-fold reasons.

Firstly, the complainant no.

2 is not an allottee and complainant no. t has not made the payment of { 1/- w.r.t. each plot as there is no document placed oll record.

Secondly, the allotment of the said plots was subject to terms contained in clause 33 & 34 ofthe addendum and the complainants oll one hand failed to comply by the terms of the addendum agreement executed between the parties and on the other hand the addendum w.r.t. which the plots were allotted to complainant no. t has already been terminated by the complainants itself vide letter dated 30.04.2015.

0.04.2015.

In light of the above-mentioned findings of the authority, rhe complainants are not entitled to any relief and the present complaints stand dismissed on merits accordingly.

This decision shall mutatis mutandis apply to cases mentioned in para 3 of this order.

True certified copy of this order shall be placed in the case file of each matter.

30.

Page 39 of40 Z ^-*^'- ,/v*:-' Corhplaint No.

3904 ofa023&4others .t t. ,vl {T HARERA #U aTRUGRAM 32.

Files be consigned to registry.

Haryana Real Estate Regulatory Authority, GUAUGRAM Page 40 of40