SUMIT DUDHA vs NINANIYA ESTATES LTD

ffiHARER. #* ounuennnt BEFORE THE HARYANA REAI ESTATE RE GURUGRAM Compla Date of Order Order p 1.

Sumit Dudha 2.

I)uja Walia Both R/o; - F-1201, plot no.

12A, Apex Athena, Sector-75, Noida Versus M/s Ninaniya Estates Ltd.

Regd.

Office at: - Prism Portico, Sector-u Gurugram-Pataudi Road, Hayatpur, Adjacent N BCC Heights, Haryana-t22004 CORAM: Shri Vijay Kumar coyal APPEARANCE: Shri Vijay M Chauhan (Advocatel None EXPARTE.

ORDE 1. 'Ihis complaint has been filed by the complain of the Real Estate (Regulation and Developm read with rule 28 of the Ilaryana lleal Estate ( Rules, 2017 (in short, the Rulesl for violarion wherein it is inter o/lo prescribed that the pro all obligations, respo nsib ilities and functions Complaint No.3319 of 2023 ULATORY AUTHORITY, nt no.: mplaint: erved on: nounced on: 3319 of 2023 17.07.2023 24.01.2025 28.o3.2025 Complainants Respondent Memher Complainants Respondent nts/allottee under section 3l ) Act, 2 01 6 (in short, rhe Act) egulation and I)evelopmcnt) f section 11(4)(a) of rhe Acr oter shall be responsible for nder the provision of the Act Page I of 15 &HARER" ffi eunuonnnt or the Rules and regulations made thereunder o agreement for sale executed inter se.

A.

Proiect and unit related details.

2.

The particulars of the project, the details of sale paid by the complainant(s), date of proposed ha delay period, if any, have been detailed in the fol Sr.

No. to the allottee as per the nsideration, the amount ding over the possession, wing tabular form: n and Possession Company shall complete the of the said Unit within 36 the date ol execution of ent ond/or from the startoJ whichever is loter and on will be sent to the to the condition that all the Details mplaint No.3319 of 2023 Particulars co", Sector 89, Pataudi "Prism Po Road, Gu Name of the project 5.05 acres Project area Complex Nature of project Commercia 8 dated 11.10.2008 valid DTCP license 179 of 20 upto 10.10. pto 10.10.

License Ninaniya E Not Regi RERA Registration nd of complaintJ GB-06, G (page no.

1 Unit no./shop of complaint) 500 sq. ft. (page no.

1 Unit admeasuring (super area) of complaint) 1 1.0 5.2 01 (page no.

1 Buyer's agreement Possession clause 5.

Comple 5.L That th constructio months this Ag constru Ot'fer of p Allottee sub Page 2 of 15 2.t i.

5.

6. t'-l p hruABrRn b- ouRueRnvt t rmplaint No.

3319 of 2023 amountsduet the stipulated attached wit sale price, mr deposit, stomt have been y. compony on c shall apply fo upon grant ol to the Allottee thereof remit 5.2 If there k mqjeure rea: then the peri 6(six) months (six) months avoilable wit, the sqid comp (page no.

18 tnd payoble by theAllottee by date as stoted in Annexure-ll 't this ogreement including t i nte na nce c harg es, secu rity ) duly ond other charges etc, aid to the Company.

The )mpletion of the construction r completion certificate qnd 'same shall issue frnal letters s(s) who shall within 30 dqys, cll dues. any delay due to qny force ons as exploin hereinafter 'td of delay shqll commence after the due date, qs this 6 )eriod shqll be groce period 7 the company to complete lex, of complaint) 11.

Due date of possession 71.71_.20t6 (calculated agreement i not on reco month is all( Note: Vid 24.01_.20251 is inadvet 17.05.2077 iom the date of buyer's s date of construction is 'd plus grace period of 6 wed being unqualified,) : proceedings dated he due date of possession tently mentioned as 12.

Memorandum of Understanding t0.04.2077 (page no.

33 of compliantJ 13.

Assured return clause 2. the Buyer t amount of Rl developer sha return of Rs, rus pa[d to the Developer an .

33,75,000/- on which the tl give an investment assured 48,725/- per month w,e.f. lv Page 3 of 15 _T B.

Fr 3 4 r b THARERA harRUGRArl omplaint No.

3319 of 2023 10.04.2017 possession ( Jloor. 'n arreors, till on offer oJ f said unit GB-06 on ground 14.

Total sale consideration Rs.37,50,0( [page no.

3z 0/- of complaintJ 15. laintJ 15.

Amount paid by the complainants Rs.37,50,0( (as alleged I of complain 0/- ry complainants at page 5 l 16.

0ccupation certificate Not obtaine 'l 1,7.

0ffer of possession Not offered 18.

Assured return paid till 01.04.2( (as alleged 05 ofcompJ 20 )y complainants at page aint) Facts ofthe complaint l. 'l'he complainants have made the following subn +.

That the respondent approached the complail emphasized the complainants to buy a retail sho "Prism Portico" at Sector-89, Gurugram-Patuadi 5, That the complainants vide provisional applicatl a payment of Rs.7,77 ,810 /- in favov of the resp, retail shop.

6.

That the builder buyer agreement dated 11.05.2 the parties.

The complainants under the BBA dal allotted a retail shop no.

GB-06, ground floor, ad complex.

7.

That the respondent has received the entire an per the payment plan till 01.04.2017.

Therefore, fv Lissions in the complaint: - rants in March, 2017 and p unit in its project namely Road, Haryana. on dated 09.04.2013 made )ndent for allotment of one 013 was executed betlveen ed 11.05.2013 were jointly measuring 500 sq. ft. in the ount of Rs.

37,50,000/- as the respondent offered the Page 4 of 1 LL 10.

HARERA GURUGRA[/ complainants for assured returns on the same to month w.e.f.

10.04.2077 .

8.

That the complainants during these years severa the possession of the said shop as the possess handed over within 36 months from the date of 01.08.2016. o That illegal and fraudulent acts of the responde respondent stopped making payment of 01.04.2020 despite the fact the respondent had n possession of the said shop.

That the complainants made several oral and tel possession of the said shop and for pending a possession but till date the complainants did not 11.

That the respondent has failed to provide servi BBA & MOU and under various laws in re misrepresented, misguided and cheated the com C.

Reliefsought by the complainants: - 12. nts: - 12.

The complainants have sought following reli (i) Direct the respondent to pay the ba complainants till the handing over of account ofthe assured return as per MO signing the sale deed. (ii) Direct the respondent to kindly hand the unit ofthe complainants, once it is to force an incomplete unit without pro the roads, etc. as mentioned under BBA. omplaint No.

3319 of2023 e tune of Rs.48,125/- per times made inquiry about on of the unit was to be xecution of agreement, i.e. came into light when the e assured return w.e.f. t handed over the physical phonic requests for giving ured returns till offer of et anything. s in accordance with the ard thereto and further inants. nce amount due to the session of the unit on dated 1 1.04.2017 before r the entire possession of dy, in all respects and not er road, electrification of Page 5 of 15 HARERA ffiGURUGRAM (iiil Direct the respondent to pay inte handing over possession of the com actual date of handing over the unit 13.

The present complaint was filed on 17.0 respondent neither appeared nor filed the multiple opportunities for filing reply 27.09.2024, ?4.01..2025, it failed to comply It shows that the respondent was intentionall court by avoiding to file written reply.

Ther observes that the respondent has nothing to 14. accordingly the authority proceeds with the Copies of all the relevant documents have record.

Their authenticity is not in dispute. decided on the basis ofthese undisputed doc by the complainants.

D. lurisdiction of the authority 15.

The authority has complete territorial and adjudicate the present complaint for the re D.l Territorial iurisdiction 16.

As per notification no. t/92/2077-j.TCp date and Country Planning Department, Haryana Estate Regulatory Authority, Gurugram shall all purposes. [n the present case, the project the planning area of Gurugram district. complete territorialiurisdiction to deal with t D.lI Subiect-matter iurisdiction tv Page 6 of 15 Complaint No. plaint No.

3319 of 2023 est @180/o p.a. for delay in ercial unit from 1.8.2016 till the complainants. '.2023.

The counsel for the ply in the complaint.

Despite n 01.12.2023, 29.03.2024, th the orders of the authority. delaying the procedure ofthe fore, the authority assumes/ y in the present matter and se exparte. een filed and placed on the Hence, the complaint can be ments and submissions made ubject matter jurisdiction to ns given below.

14.72.2077 issued by Town e jurisdiction of Haryana Real e entire Gurugram district for n question is situated within erefore, this authority has e present complaint. ffi!ABE]]A *@-euRuennlr 17.

Section 11(a)(a) of rhe Act, 2016 provides responsible to the allottee as per agreement reproduced as hereunder: Section 77 (4) The promoter sholl- (o) be responsible for all obligotions, re under the provisions of this Act or the ru thereunder or to the ollottees os per the ag ossociation ofollottees, as the cose may be, til, apartments, plots or buildings, osthe cose ma common oreos to the ossociqtion ofollottees os the cose moy be; Section 34-Functions of the Authority: 344 of the Act provides to ensure complio upon the promoters, the allottees ond the reo Act and the rules ond regulotions mode thereu 18.

Hence, in view of the authoritative pronounce Court in the case mentioned above, the auth entertain a complaint seeking delay possession E.

Findings on the relief sought by the com E.l.

Direct the respondent to pay the complainants till the handing over account of the assured return as per signing the sale deed.

E.ll Direct the respondent to kindly handover unit of the complainants, once it is ready, force an incomplete unit without proper roads, etc. as mentioned under BBA.

E.lll.

Direct the respondent to pay interest @1g over possession of the commercial unit date of handing over the unit to the comp 19.

The complainants in the present complaint has project of the respondent namely ,prism por Complaint No. plaint No.

3319 of 2023 the promoter shall be ale.

Section 11(a)(aJ is sibilities ond functions and regulotions mode ent for sale, or to the the conveyonce ofoll the be, to the ollottees, or the t h e c om p eten t o u th o r i ty, of the obligations cast estote ogents under this nt of the Hon'ble Supreme ity has the jurisdiction to bala ce amount due to the of ssession of the unit on MOU dated 11.04.2017 before entire possession of the n all respects and not to d, electrification of the p,a. for delay in handing m 01.08.2016 till actual nants. booked a unit/shop in the ico' situated at sector-8g Page 7 of 15 HARERA ffi GURUGRAII Pataudi Road, Gurugram, Haryana.

The compl bearing no.

GB-06 situated at ground floor, buyer's agreement for the said unit was execu and respondent on 11.05.2013.

The total sale Rs.

37,50,000/- and the complainants have Rs.

37,50,000/-.

As per the possession clau possession was to be handed over within 36 m of 6 months which comes out to be 11,.17.201 I0.04.20-17 executed a Memorandum of complainants and as per the clause 2 of the respondent is obligated to pay the Assured r 10.04.2017 till offer ofpossession ofthe said u 20.

0n the above-mentioned reliefs sought by the together as the findings in one relief will defi other relief and the same being interconnected.

Assured return The complainants are seeking unpaid assured per memorandum of understanding dated mentioned therein.

It is pleaded that the respo the terms and conditions of the agreement. amount of assured returns was paid till 01 respondent has stopped the payment ofassure 22.

The money was taken by the builder as deposit i of immovable property and its possession was t period.

However, in view oftaking sale consider 21. builder promised certain amount by way of Page 8 of 15 Complaint No.

3319 of 2023 nants were allotted a unit dmeasuring 500 sq. ft.

00 sq. ft. the between the complainants nsideration of the unit was aid the entire amount of e 5 of the agreement the nths including grace period .

The respondent on dated Understanding with the 0U dated 10.04.2017 the turn of Rs.

48,125/- w.e.f. it. mplainants, are being taken itely affect the result of the turns on monthly basis as L0.04.2017 at the rates dent has not complied with ough for some time, the 04.2020 but larer on, the return. advance against allotment be offered within a certain tion by way ofadvance, the ured returns for a certain HARERA M.

GURUGRAI/ period.

So, on his failure to fulfil that commitme approach the authority for redressal of his gr complaint.

23.

The builder is liable to pay that amount as agr that it is not liable to pay the amount of as agreement defi nes the builder/buyer relationsh agreement for assured returns between the prol of the same relationship and is marked by the o 24. lt is not disputed that the respondent is a real not obtained registration under the Act of 20j.6 However, the project in which the advance developer from the allottee is an ongoing proj Act of 2016 and, the same would fall within the j for giving the desired relief to the complaina proceedings.

So, the amount paid by the compl regulated deposit accepted by the later fro immovable property to be transferred to the Authoriry has also deliberated the issue ofassu including Prateek Srivastova & Namita Meh (REPd-cRc.660-2021).

25.

In the present complain! the assured return wa MoU, which is reproduced below for the readv re Clquse 2. "The Buyer has.poid to the Developer on omounl ol t developer shallgive on investnen t ossu red return oj.R 1_0,04.2017 in orreors, till on offer of possessiin Iloor. (\,' Page 9 of 15 Complaint No.3319 of 2023 t, the allottee has a right to filing a evances by way of upon and can't take a plea red return.

Moreover, an p.

So, it can be said that the oter and allotee arises out inal agreement for sale. for sale. state developer, and it had for the project in question. as been received by the as per section 3(1) ofthe risdiction of the authority s besides initiating penal inants to the builder is a the former against the llottee later on.

That this return in number ofcase VS M/s Votika Limited payable as per clause 2 of erence: 33,75,000/- on which the 48,125/- per month w.e.f. soid unit G8-06 on ground SHARERA *&- eunuennlrr Thus, the assured return was payable @ 10.04.2017 till offer of possesslon.

In light ofthe reasons mentioned above, the au per the MoU dated 10.04.2017, it was obli respondent to pay the assured return.

It is n the respondent has failed to fulfil its obligation parties in MoU dated 10.04.2017.

The occupatio not been obtained till date.

Accordingly, the liabi assured return as per MoU is still continuin directs the respondent/promoter to pay assur at the agreed rate i.e., @Rs.48,125/- per month till offer of possession, after deducting the amo of assured return against the unit in question to Delay possession charge.

27.

In the present complaint, the complainants i project and are seeking possession of the subj charges as provided under the provisions of se reads as under; "Section 7B: - Return olomount qnd 1B(1). lf the promoter foils to complete or is un apartment, plot or building, - Provided thot where on ollottee does not intend he shall be poid, by the prcmoter, intercst for honding over ofthe possession, at such rate os ma A builder buyer agreement dated 11.05.2013 parties.

The due date to handover the possessio 26.

28. clause 5 of BBA.

The relevant clause is reprodu below: Page 10 of15 Complaint No.

3319 of 2023 48,125 /- per month w.e.l ority is of the view that as tion on the part of the sary to mention here that as agreed inter se both the certificate for the unit has ity ofthe respondent to pay .

Therefore, the authority return to the complainants m the dare i.e., 10.04.2017 nt already paid on account e complainants. plainants. nd to continue with the unit and delay possession on 18(1) of the Act which e to give possession of on withdrow from the prolect, ry month of delay, till the be prescribed." as executed between the of unit is calculated as per M SHARERa *&- eunugRnM "5.1 That the Company sholl complete the Unit within 36 months Jrom the dste Agreement and/or from the stort of cons later and )ffer ofpossession will be sent to th condition that oll the omountsdue ond payobl stipuloted dote as stqted in Annexure-ll attach including sale price, mointenance chqrges, duty ond other chorges etc, have been poid company on completion of the construc completion certiJicote and upon gront ofsame to the Allottees(s) who shollwithin 30 days, th 5.2 lf there is ony deloy due to ony force maje hereinafter then the period of delay sholl co ofter the due dote, as this 6 (six) months perio ovoiloble with the compony to completethe 29.

Due date of handing over of possession: As the agreement dated 11.05.2013 the possession over within 36 months from the date of executi of construction whichever is later.

The date o available on records so, the due date is calcula i.e., 11.05.2013 which comes out to be 11.05.20 agreement mentions that the respondent is en months.

The said grace period of 6 month is Hence, the due date of possession comes out I Admissibility of delay possession char interest: The complainants are seeking delay to section 18 provides that where an allottee from the proiect, he shall be paid, by the promo of delay, till the handing over of possessio prescribed and it has been prescribed under rul been reproduced as under: 30.

Complaint No.

3319 of 2023 nstruction ol the soid execution ol this ion whichever is Allottee subject to the by the Allottee by the with this ogreement curity deposit, stomp to the Compony.

The ion sholl opply for oll issue lnal letters reofremit olldues. re reosons os explain mence 6 (six) months shall be grace period d complex.... er possession clause 5. clause 5.1 of ofthe unit was to be handed ofagreement or from start start of construction is not from the date of agreement 6.

Further clause 5.2 of the itled to a grace period of 6 Ilowed as it unqualified. e 1,7.7L2076. at prescribed rate of ssession charges.

Proviso oes not intend to withdraw er, interest for eyery month at such rate as may be 15 ofthe rules.

Rule 15 has Page 11 of 15 ffiHARERI ffi eunuennnr "Rule 15, Prescribed rqte ofinterest- [proviso sub-section (4) ond subsection (7) ofsection 1 For the purpose oI proviso to section 12; section (7) ofsection 19, the "interest ot the rote prescrib lndio highest marginal cost of lending rate +20k.: Provided that in case the Stote Bqnk of lndio (MCLR) is not n use, itshollbe reploced by such b the Stqte Bank of lndio moy fx from time to ti 31. public." 'Ihe legislature in its wisdom in the subordina 15 ofthe rules has determined the prescribed ra as per website of the State Bank of India i.e., cost of lending rate (in short, MCLRJ as on da Accordingly, the prescribed rate of interest will rale +2o/o i.e., 1.1.1.00/o.

32.

0n consideration ofdocuments available on by the complainants and the respondent, the a respondent is in contravention of the provision over possession by the due date as per the a execut"ed between the parties.

33.

However now, the proposition beFore it is as to getting/entitled for assured return even aft possession, can claim both the assured return as charges?

34.

The Authority observes that due date of handi 71.11.2076 and the respondent has not obtaine till date.

So in such case, in terms of Sectio respondent is obligated to pay delay possessio rate from the due date ofpossession till offer of after obtaining occupation certificate or actual /r/ Page 12 of15 Complaint No.

3319 of 2023 section 12, section 18 and tl 18; ond sub-sections (4) and 'shqllbe the Stote Bank of arginol cost of lending rote chmark lending rotes which e for lending to the generol legislation under the rule e of int e e of interest.

Consequently, the marginal i.e., 28.03.2025 is 9.100/0. be marginal cost of lending ord and submissions made thority is satisfied that the of the Act by not handing eement dated 11.05.2013 hether the allottee who is expiry of due date of well as delayed possession g over of possession was the occupation certifi cate 18 of the Act, 2016, rhe charges at the prescribed ossession plus two months anding over of possession, ffiHARER" S-eunuennu whichever is earlier.

However, it is to be noted dated 70.04.2077, it has been mutually agreed respondent shall pay an amount of Rs.4g complainants-allottee from the date of executio offer of possession.

The Authority is of considet L0.04.2077 till offer of possession, the respo double burdened for the same cause of actio amount whichever is higher, shall be payable to 35.

If we compare this assured return with delay under proviso to section 1B(1) of the Act, 2016, better i.e., assured return in this case is payabl whereas the delayed possession charges a Rs.34,212/- per month.

By way of assured retur the allottee that he would be entitled for this s offer of possession.

The purpose of delayed po date ofpossession is served on payment ofassu possession as the same is to safeguard the inte money is continued to be used by the promoter date and in return, they are to be paid either th possession charges whichever is higher.

36.

So, in such eventuality, the respondent is direct charges at prescribed rate from the due date of till the date of execution of MoU i.e, 10.04 respondent shall pay assured return to the comp 2 of the memorandum of understanding execut Page 13 of15 Complaint No.

3319 of2023 at vide clause 2 ofthe MoU etween the parties that the L25/- per month to the of MoU i.e.

10.04.2017 till d view that for the period dent-promoter cannot be and for that period, the he complainants. ossession charges payable e assured return is much at Rs. uch at Rs.

48,125/- per month payable approximately , the promoter has assured ific amount till issuance of session charges after due ed return after due date of st of the allottees as their n after the promised due assured return or delayed to pay delay possession possession i.e.

1 1,.11,.201,6 017 and thereafter the ainants in terms of Clause d between the parties i.e. *HARER,T #-eunuennvr from 10.04.2017 till valid offer of possessi certificate.

F.

Directions of the authority 37.

Hence, the Authority hereby passes this o directions under section 37 of the Act to ens cast upon the promoter as per the function en section 34(0; The respondent/promoter is directed to pa against the paid-up amount of Rs.

37,50,0 77.700/o p.a. for every month of delay from 11.11.2016 till the date ofexecution ofMoU lll. ll.

The respondent is directed to pay the outs The respondent is directed to pay pe complainants in terms of Clause 2 of the executed between the parties i.e. from possession after receipt of occupation ce already paid on account of assured return The respondent is directed to offer posses the unit in all respect as per sanction occupation certificate. possession charges as well as assured retur the date ofthis order after adjustment ofou complainants and failing which that amount @9.100/o p.a. till the date of actual realizatio The rate of interest chargeable from the allo default shall be charged at the prescribe Page 14 of15 Complaint No.

3319 of 2023 n after receipt of occupation er and issues the following re compliance of obligations usted to the authority under interest to the complainant(sl 0/- at the prescribed rate i.e., e due date of possession i.e., i.e.

1,0 .04 .2017 . ding assured return to the emorandum of understanding 0.04.20L7 till valid offer of ificate.

The amount which is all be deducted. deducted. n of the unit after completing plans & after obtaining of ding accrued amount of delay till date within 90 days from standing dues, if any, from the ould be payable with interest ee by the promoter, in case of rate i.e.

11.100/o p.a. by the HARERA ffi GURUGRAII respondent which is the same rate of intere liable to pay the allottees, in case of defaul section 2(za) ofthe Act. vi.

The respondent shall not charge anything fro not the part ofthe builder buyer agreemenL Complaint stands disposed of.

File be consigned to registry.

Dated:28.03.202S 38.

39.

3319 the complainan which is t which the buil of making YI (viiay Mem Haryana Real Regulatory Au Gurug shall be t as per Goyal) Estate 15 of 15