MADHU BALA JAIN KRISHAN KUMAR JAIN vs VATIKA LIMITED

*HARERA 9!- crrnlrcnnvr CORAM: Shn.

Ashok Sangwan Complaidt no.

7055 of 2022 a.d BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Dateofdecision: 27.05.2025 VATII(A LTD, Sh.

Dhruv Berry ORDER 1.

This order sh all d is pose of both the complaints titled as above nled before this authority in Fornr CRA under section 31 of the Real Estate (Regulation and Developm€nt) Act,2016 (herelnafter .eferred as the Act") read with rule 28 ol the Haryana Real Estate (Regulation and Developmentl Rules, 2017 (hereinaflter refer.ed as 'the rules l ior violation oisection 11(4)(al of,the Actwherein it is inter alia prescribed that the promoter shall be responsible lor all its obliSations, responsibilities and functions to the allottees as per the agreement for sale executed inter se between parties.

NAAIE OTTHE BIIII,DER PROJECT NAME cR/?065/2422 cR/7066/2022 s.

No.

1 2. lrHARERA S- crnrcnnl,l 2. al complaint no.7065 of2022 and The core issues emanating from them are simila. in nature and the complainant(sl in the above referred matters are allottees of the projects, namely, 'VATIT'A TOWERS' being dev€loped by the same respondent promoters i.e., M/s Vatika Ltd.

The details of the complaints, reply to status, unit no., date ofagreement, &allotment, due date oipossession, offer ofpossess,on and reliefsought a.e given in the table below: Prote.t Namc dnd Location "vatilia Towers", sector 54, Gurugram, Assure.! return .lou*: a) A$ured n.nthly co nnnentol k129-72/- pq q t pavoble ttll.onPtetion o[ b) Pott.anpletion oJthe pro)ect an anaunt equivqlent b Rs 12A/' per sq ft supq oruo afthe uhit pet onth sholl be poid as camhitted retum f.an the dote al camplenan oJ constructioh aJ the soid unt, far up to 36 ntuths or ttlt the soid unx tt putan leose,whi.heretis eorlieL After the soid Unit is puton Leav then potment oJ olbresoia cannitted return w t cone to on end ton the date al execution ol Leose deed and the buyet willstartt.ceiting t eose rentol in retpectofth. tuid Conne. uid Conne.ctol untt lrotu the rcnt .omnehcenent dote as pet the Leose Deed oJthe eid untL Offer of possession: Not olIered 23.05.2015 lpg.

38 of replyl 23.05.2015 lps.37 of replyl aR/7065/2022 cR/7066|ZOZZ P-297 admeasuring P'299 admeasuring 500 133poJo%- T -- i.; *HARERA dP- (,URLrcRA[/ tl-",- p"rd d.

Litigationcost l88,000/' 4 It has been dec,ded totreatthesaid complaints as an application for non compliance ol statuto.y obligations on the part of the promoter/respondent in terms of section 34(0 oi th€ Act wh'ch mandates the authority to ensure compliance oa the obligations l:ast upon the promoters, the allottees and the realestate agents under theAct, the .ules and the regulations made thereunder.

The facts of all the complaints filed by the complainants/ alloftees are also simllar. out of th€ above_mentioned cases, the particulars of lead case CR/7066/2022 titled as Motthu Balo loln & Krishm Kumor laln v/s Vatika Limited & ort are being taken inrn .onsideration ibr determining the rights of the allottees qua delay possessioD charges, quash the termination letter get €xecuted buyers' agreement and Unitand proiect related details The pa rticula rs of unit details, s:1e consideration, the amount paid by the complainants, date of proposed handing ove. the possession, date of buyer's agreement etc, havebeen detailed in the following tab ular fo 'm: cR/7066/2022 titled os Madhu Balo Jotn & Krlshon Kumor lain V/s vdrika Limited & ors. complaiDt no.

7065 of2022 and .34,6A,600/ lpg.4 ofcomplaintl 125,94,400 / - 18.10.2018 j 6. i34,68,600/- 1,25,94,400 /- ra 10.2018 u HARERA GURUGRA[/ Complaint no, 7065 of 2022.nd Appli.ir on ti'r dllornren!

23.05.2075 IPase 37 ofreplyl Provision regarding assu.ed returD as per dared 30.07.2015 a) Asured nnhthl! .adhitnent ol R5.129,72/- per sq, Jt payoble till conpletian af th e pr oiect. b) Post canptetion ol the prcrectuh onotnt equivotent to Rs, 1 20/- p6 sq fi- tuper o.eo oJ the unt pu month shotl be Puttl os comnined rctu. ined rctu.n lran rhe dote of cohpletian af construction olthe sotd untL lot up to 3 lead ot ttll the soi.l uni is put an leole, |9hich.v.r Beorlie.

AFet rhe soid Untt is put on Leosx tlen Paynent ol aloreeid connxAd return Ntill cone to dn e\d lion the dote oJ decudon oJ Leose deed ond the I 9. l'ot IAs per stateneDt of account 19.06.2015, pase 4 ofcomPlaintl occupation certlficate Legal notice sent bY the complainant seeking payment of assured return from November 15.09.2422 Vatika Towers, ColfCourse Road, Suncity, Sector 54, Curugram, Haryana. buyet will stott recetving Ieose rental in resped ofthesoid canhqdot unn Jron the rent connenceneht dote os per the Lease Due dateofpossession 1. 'l'otal sal. considcration Rs.33,00,000/- IAs per statement ot accoult dated 19.06.2015, page 4 oi.omPlarntl lPase 14 ofcomPlaintl 2 4 *HARER^ !S- eunuonev complaint no.

7055 of 2022and 2018 along w'th l5% ; L interest, io execute BBA Amount of assured ret'f n paid by the respondent I Rs.2594,400/- w.e.t 18.06.2015 till 18.10.2018 (i.e R5.54860/- per month) _] B. l. lPase s ofreplyl tacts ofthe complaint The complainant has submitted as under: a.

That aftergetting lured by the rosy picture as shown by the officiah ol the respondents, the complainanls decided to invest her hard_ earned money in the Project namely vatlka Towers'and made an initial payment iowards booking amount of 1 5,00,000/_ out oithe total sale consideration of I 33,00,000/'' Subsequentlv the complainants cleared the remaini'g amount of sale consideration amounting to i 12,19,300/'on 1506.2015 and { 17,19,300/-on 15.06.2015.

The factum of pavm€nt can also be verified from the statement of accou nt issued by .€spondent no 1 dated 19 '06 2 015 b.

That on 30.07.2015 the respondent no' I also issued a letter acknowledging the receipt of the application dated 2605'2015 allotting Priority No.

P_299 to the complainants for a unit ad_ measuring 500 sq. ft and further assured the complainants of a monthly commitment i.e. tment i.e. assured return to the tune of Rs 729 721' per sq.lt. ofthe area which shall be payable to the complainants till the completion of the project' Along with the said letter' the respondent no.

1 to prove his wiltingness and Sood conscience issued a cheque bearing no 982030 and 982032 dated r007'2015 of Rs.41,835 (exclusive olTDs) towards commitment charges *HARERA $-cLrnLrr,nnlit Complairt no.

7065 of 2022 and c.

That as all the sale conside.ation was paid to the respondent no' thereiore, the respondent no.

I started the payment of assured .eturns to the complainantsto the tune ofRs 32,430/_ everymonth i.e.

Rs.

129.72 per sq. ft for 500 sq. ft. area d.

That the complainants after the payment oi the complete sale consideration requested the off,c,als of the respondents to either execLrte a Builder Buyer Agreement or a.

Agreement to Sell but to That as the period oi 36 months elapsed in the month of August 2018, the complainants again went to the registered omce of the respondent no.1and asked the offic,als ofthe resPondent no l about the status of Tower C of Vatika Towers but the officials of the respondents started giving vague answers.

Further' on being asked about the execution of Agreement to sell or Builder Buver Agreement, the ofncials of the respondents assured that it will be signed soon and further assured that there is no need to doubt the integrity of the proiect as the builder is still giving assured return' on this pretex! the compiainants 8ot convinred and came back' However, to the utter dismay of the complainants that after 2 months i.e. after October 2018, the respondent no'1 even stopPed givingtheassu.ed returnsasPromised bythe respondentno'1 rnthe letter dated 30.07.2015.

The complainants repeatedlv tried contacting the officials orthe respondents but no plausible answers were given by them and the matter was got lingered on' on one pretext or th€ other' Consequently, the complainants again went to the olfice ofthe respondents whereby thev reby thev m€t M' Mukesh Kashvap Pasc 6 of25 *HARERA S-crrnLrennl,,t e. h and it was assured by him that the p.oject will be completed soon and from next month theassured return willstart again but the said assurance made by the offidalolthe respondents went into vain' That That when the officials ofthe respondent started ignoring the calls and stopped meeting and entertaining the complainants then the complainants having no via media wrote emails to the respondenc on A8.07.2A19,2909.2019 and 0807'2020 for the w:nt oistatus ofthe proi€ctand regarding the non'payment ofthe assured return but to the d,smay of the comPlainants that all such mails went unanswered by therespondents That lrom the above act and conduct, rt became apparent to the complainaDts that the respondents have no intentions oflaunchine Towerc in Vatika Towers, with further no iDtent'ons of releasinC theassured retu rns amount of the complainants and with furthe' no intentions of executing any BBA or ATS with th€ complainants' Lastly on 09.09.202 2, the complainants visited the official website of the res pondents whereby it was revealed that the respondents have plans to launch Tower-C in Vatlka Towers on the GolfCou'se Road' That on 15.09.2022, the complainants sent a Legal Notice to the respond€nts to clear the dues otthe complainants pertaining to the assured return amount from Novembe' 2018 till date' along-with 150/op.a. interest from the date of accrual of the said amount till its actualreahzation.

Further, to execirte a Builder Buver Agreement or Agreenrent to sell in favour ol the complainants for the unit ad- measuring 500 sq. ft. [sitper area] in Tower C' vatika Towers' Golf Course Road within 7 days next from the receipt ofthis LegalNotice Complaint no.

7065 of 2022 and Codplaint no.7065 of2022 and c.

8. *HARERA d[, eunuenel,t However, despite the due delivery oi the same Legal Notice on 17.09. on 17.09.2022, the respondents failed to either replv to the said Legal Notice or to accede to the just and legal demands of the complainants.

Hence, this complaint.

Reliefsought bY the comPlainant: The complainant has sought followins relief(sl; a.

The authority may kindly direct the respondents to execute an BBA in iavour of co mplainant of a unit at measuriDg 500 sq' it in vatika lowers gollcourse road b.

Direct the respondentto pay the relnaining amount ofa short return which was stopped by the respondents from October 2018 along with I 5 % interest per ann um lrom th e date of accrual of said amount till iis actual realization. c.

Direct the respondent to pay delayed possess'on charges for the deliberate and ,nordinate delav in handing over the possession of the unit to the compla,nant. d.

The authority may kindly grant litigation expense to the tune ot i88,000/'. c On the date oi hearing, the authority expla'ned to th€ respondent /p.omoters aboutthe contraventions as alle8ed to have been committed rn rel:rnon to section 11(41 (al olthe Act to plead guiltv or not to plead guilty.

D.

Reply bY the respondent.

10.

The respondent has contested thecomplainton a.

That at the very outs€t, it is submitted ihat untenable both in facts and in law' and is rhe following grounds: the iDstant complaint is filed without a cause of Pase 3 of 25 *HARERA d$. crtnrcnnr,t b.

I hdt rhe tomt rrnant here,n, has farled to provide the correct/complete facts and the same a.e reproduced hereunder lor proper adjudication of the present matter.

That the Complainant is raising tulse, frivolous, misleading and baseless allegations against the Respondent with intent to make unlawlulgains. c.

Attheoutset, the Complaioant haserredgravely in filingthe present Complarnt and misconstrued the Provisions ofthe RERAAct. e RERAAct.That it is an admitted lact that by no stretch of imagination it can be concluded that the Complainant herein is an "Allottee/Consunrer" That the Complainant is simply an investor who approa.hed the Respondents for investment Opportunities and for steady Assursd Returns and Rentallncome.

Thatthe Complainant bejngan investor in thc Proiect has no locus standi to file the present Compla,nt d. 'lhat in the year 2015, the complainant, learned about the commercial project launched by the Respondent under the name and title Vahka Towers' (" P roject"l and repeatedly visited the office oi thc Respondent to know the details of the sard project. complaint no.7065 of2022 and action, hence,s liabl€ to be rejected on this ground alone.

That the complainant has approached the Hon'ble Authoriiy with unclean ha.ds That the claims of th€ com plainant are not genu ine, and have been outreached and concocted, thus, by reason ofapproach,ng the Hon'ble Authority with unclean hands and suppressing material facts.

That the Complainant is estopped by he. own acts, conduct, acquiescence, laches, omissions etc. from f,ling the present IP HARERA tlb- eunuenev t.

Complaint no.7065 of2022 and That after having an interest in the commercial project being developed by the Respondent, the Complainants vide an application fomr dated 23.05.2015, booked a Unit tentativelv admeasuring 500 Sq. ft for an amount of134,37,788/_ on free willand consent'without any demur whatsoever.

Thereafter, considering the future speculative gains, the Complainant, in lune 2015, at their own will made thedue payment towardsthe agreed sale consideration of the said unit with the sole intention ofmaking income from the same Were allotled a priority number P299 in the said proiect' It is pertinent to mention thai complainants were aware of terms and conditions under the afforested allotment and onlv upon being satisfied with each and every term agreed to execute the same with free will and consent. d consent.

That as per the application form executed by the complainants for allotmeDt ol the said unit the complainants were under an obligation to executethe buyer's agreement in order to define the mutual terms and conditions a8reed between the That the unit ofth€ Complainantwastentative and subiectto change' as was categorically agreed between the Parties in terms of the application lorm.lt is further submitted that the sale ofthesaid unit is subiectto force major condjtion and the said clause has been dulv accepted by the complainants without any demur or protest That as per clause 19 oithe application form, the inteDding allottee agrees that the sale ofthe premises is subject to fo'ce major clause which inter alia include delay on account olnon_availability ofsteeland/or cement or other building materials, or water supply or electric HARERA h.

GURUGRA[/ power or slow down strike or due to a dispute with the concern canstruction agency employed by this company civil commotion or by person ofwar o. enemy action or terrorist action or earthquake or any act ofGod o. il non delivery of possession as a 'esu)t ofanv notice order. rule or notification ofthe government and slash or any other public or competent authorrty o.loranv other reasons bevond the control ol the company and in any of the opposite events the company shall be entitled to a reasonable extensron of time for delivery ofpossession of the sald premises.

That the construction oi the set proiect got delayed due to the reasons bevond the controlof That at this stage, it is categorical to hiShlight that the Complainant is t.ying to mislead this Hon ble courtby concealing facts which are detrimental to this Complaint at hand- That the application form executed between the parties on 23 05.2015 was in the form of an 'lnvestmentappllcation".Thatthe Compla'nanthad approached the Respondent as an investor looking for certain investment opportunities. rtunities.

Th€refore, the Allotment ofthe said unit contained a 'Lease Clause" which empowers the Developer to put a unit oi complainant along with the other commercial space unit on lease and does not have "Possession clauses', ror phvsical possession' Hence, the embargo of the Real Estate Regulatory Authoritv' in totality, does notexisl.

That it is humbly submitted before the Hon'ble Authonty that the Respondent was:lways prompt in making the payment of assured returns as agreed under the Agreement.lt is not out ofthe place to Codplai.t no.

7065 of2022 and Pa8€ 1l ol25 ffHARERA d!- eunuennv Complaint no.7065 of2022 aDd mention thatthe Respondent her€in had been paying the committed return ofRs.64,860/_ for every mo.th to the Com plajnants withou t any delay since 18.06.2015 till 18.10.2018 (i.e., for 40 months).

It is to note, that as on 18.10.2018, the Complainant herein had alreadv re.eived an amount of Rs.25,94,400/ as assured return as agreed by the Respondent per the aibresaid allotment.

However' post October 2018, the Respondent could not pay the ag.eed Assured Returns due to change in the legal position and the i)l€galitv of making the payment ofthe same.

That in the given tacts and circumstances, it is most humblv submitted that the Respondent had rightly stopP€d making the payment, and in any case whatsoever, thepr€sent Complaint cannot be entertained by this Hon ble Authority.

That the Complainant is praying tbr the reliel of "Assured ReturnJ' which is beyond the jurisdiction thatthis Ld.Authorily has been dressed with' That fronr the bare pe.usalofth€ RERAAct, it is clear that the said Act p'ovides for three kinds of remedies in case ot any dispute between a Developer and Allottee with respect to the development of the project as per the Agreement.

That such remedies are provided ,inder section 18 ofthe RER,qAct,2016 forviolatron of anv provisron ofthe RERAAct,2016.

AAct,2016.

Thatthe said remedies are of"Refund" in case the allottee wants to withdraw from the proiect and the otherbeing "interest ior delay of every month" in case the allottee wants to continue in the project and the last one is for compensation for the loss occu rred by th e Allottee Th at it is relevant to mention here that I}HARERA S-qrnucnlur nowhere,n the said provision the Ld.

Authoriry has been dressed w,th jurisdiction to grant "Assured Returns". k.

That as the Complainant in the p.esent complaint is seekin8 the .elief of Assured return, it is pert,nent to mention herein that the .eliefoiassur€d return is not maintainable before the Ld.

Authority upon enactment of the Banning of t-lnregulated Deposits Schemes Act,2019. l. lt is imperative to mention that the issue pertaining to the reliefoi assured return is already pending for adiudication before the Hon ble Punjab and Haryana High Court.

Where,n, the Hon'ble High Court in the matter of'Vanka Limited vs UDion of India and Anr.'in CwP No.26740 of 2022,had issued notice to the Respondent Panies and had also restrained the competent authorities f.om taking any coercive actions against the Respondent in this matter in crimin:l cases for seeking recovery against the deposits till the next date of heariDg. m.

That it is also apropos to bring into the Knowledg€ of the Ld.

Authority that an Appealbearing no.95 of2022, titled as Venetian LDF Project Limited vs Mohan Yadav, is already pending belor€ the Hon ble Haryana RealEstate App€llate Tribunal(HREATI. whe.e,n, the Hon'ble Tribunal vide order dated 18.05.2022, has alreadv stayed the order passed by this Hon bleAuthority, granting the reliel ofassured return in favour ofthe allottee 11.

Copies oiall the relevant documents have been filed and placed on the record.

Thei. authenticity is not in dispute.

Henc€, the complaint can be CoBplalnt no.

7065 ol2022and Pag.13 oi 25 flHARERi $- crnrcneu Complaint no. plaint no.

7065 of 2022 aDd decided on the basis of those undisputed documents and subm,ss,ons made by the partles.

E.

Jurisdiction ofthe authority 12.

The nuthonty observes that it has territorial as well as subj€ct matter jurisdiction to adjudicate the present complaint ior the reasons given E.l T€rritorlal iu risd ictlon 13.

As per notification no l/92/2017'ITCP dated 14.12'2017 jssued bv Town and Country Planning Department, HaryaDa, the iurisdiction of Haryana Real Estate Regulatory Authorlty, Gurugram shall be entire Curugram district for all purpotes ln the present case, the proj€ct in question is situated wlilln tle planning area of Curugram district Therelore, this authority has conrplete territo rial jurisd'ction to dealwith the present complaint E. ll Subi€ct-matler,urlsdlctlon 14.

Section 11(a) (a) olthe Act,2016 provides that the promoter shall be responsible to theallottees as per agre€ment for sale' section 11(a) (al is reproduced as hereunder: seetion 11(4)(o) Be rcsponsible lor oll obllgotiqs r.tponsibnities ond fn'Oons untlet the Proeisons ofthis act ot the rules and 'esttations node thereu nder ot to th. allottees as pq the ogreenent lor sole ar to the osto.iotnn ol allatzes as the.ate nav be olI the cohvelance afott theopornents,plotsot buildings,os the cos' no! be, ta the atlottce\, or the connon ateos ta the o$ocionon ofolloueesor the .anpetent outhant!, as the case no! be Section 34 Functiont ol the Authonrv: 3aA b ensu.e conPhon.e ol the obtigotons cost upon the pr;nok.s, the ottattees ond the reot estote ogents underthk Act ond the .utes dnd rcgLlotions nade the'eLnaer {}HARER;, $-c,unrnnnH,l So, in view of the provisions of the Act quoted above, the authority has complete iurisdiction to decide the complaint regarding non_compliance olobligations by the promoter leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainants :t a later stage.

Flndings on th€ obiections ralsed by the respond€nt F. pond€nt F.l. obiection regarding malntainability of .omplaint on account of complainant being lnvestor The respondent took a stand that the complainants are investors and not consumers and therefo.e, they are not entitled to the protection of the Act and thereby not eotitled to file the complaint under section 3l ofthe Act.

However, it is pertinent to note that any aggrieved person can file a complaint against the promote. if he contravenes orviolates any provisions of the Act or rules or regulations made thereunder.

Upon careful perusalofall the terms and corditions oithe allotment letter, it is revealed that the complainant is buyer, and theyhave paid a considerable amount to the respondent'promoter towards purchase of unrt in its project.

At ihis stage, it is important to stress upon the definition oiterm allottee undertheAct, the same h reproduced below lor readv reference: 15 I " 2td) "ollottee' in relotion ta o real estote pryect neons the peren ta whon o plot apotthe\t or building, as th' cose noy be, has been ollat\d, sold (whethet as teehal'l or teo*hatd) or otheMie tronsfet.ed bv the prcnater' ond includes the pe.tuh who subequentl! acquircs the id allotnent thtough sole, tahder a. otheruise but does not hclude o peBon to whon such plot, aportnent ot buildtnq osthe cosemaY be, isgiv.n on renf 17. ln view of the above_mentioned definition of "allottee" as well as all the terms and conditions of thebuyer's agreement executed between promoter and complaiDant, it is crystal clear that the complainant a'e PagelS of25 Complaint no.7065 oI2022 ard f HARER" S-cunrnnnv Compl.int no.7065 of2022 and allottee[s) as the subject unit was allotted to them by the promoter.

The concept of investor is not delined or refe..ed to jn the Act.

As per the definition given under section 2 ofthe Act, there will be 'promoter'and "alloftee" and there cannot be a party having a status of "investor". investor".

Thus, the contention of the promoter that the allottee being investor are not entitled to protection olthis Act also stands reiected F.ll.

Pendency ofpetitior betore Ho! ble Puniab and Haryana tligh Court regardirg assured return 18.

The respondent'promoter has rajsed an objection that the Hon'ble High Court of Punjab and Haryana in CWP No.

26740 oi2022 titled as "vatika Limited Vs.

Union ol lndia & Ors.", took the cognizance in respect of Banning of Unregulated Deposits Schenes Acl 2019 and restrained the Union of India and State of Haryana for taking co€rcive steps in criminal cases registered agarnst the company for seeking recovery against deposits till the next date ofhearing.

1 9.

With .espect to the aforesaid contention, the Authority place reliance on order dared 22.11.2023 in cwP No.26740 o12022 (supral, wherein th. counsel for the respondentG)/allotteeG) submits before the Hon'ble High Court ot Punjab and Haryana, "that even after ordet 22.ll2022' \he courts i.e., the Real Estate Regulatory Authority and Real Estate Appel rte Tnbunal are not proceeding with the Pending appeals/revisions that have been preferred-" And accordingly, vide order dated 22.11.2023, the Hon',ble High court of Punjab and Haryana in cwP no.26740 of 2022 clarifled that there is not stay on adiudication on the pending civil appeals/petitions before the Real Estate Regulatory Authority and they are at liberty to proceed further in the onSoing no.7065 ol2022 and GI]RUGRAI\4 matte.s that are pending with them.

The relevant para of order dated 22.11.2023 ,s reproduced herein below: ''...it 6 potnted out thotthere js ho star on adjudkotian an the pending .ivil oppeoh/petitions before the Real Estote Resu I otory Authatiry o s o I so og o inst th e inve stigating o gen.i es ond they are ot liberr/ tu proceed furthe. tn the ansatns na eBthotore pendihg wtth then Thete it hascopehrahr Jutthet ctonlicouon 20. icouon 20.

Thus, in view olthe above, the Authority has decided to proceed further with the present matter.

G.

Findings on the reliefsought by the complainant.

G.l, Assured return.

21.

The complainants are seeking unpaid assured returns on monthly basis as per the acknowledgemenl letter at the rates mentioned therein.

It rs pleaded that the respondent has not coftplled with the terms and co nditions of the said acknowledgement letter.

Though fo r some time, the :mount ofassured returnswas paid but later on, the respondent relused to pay the same by taking a plea that the same is not payable rn view of enactment ol the Banning of Unregulated Deposit Schemes Act, 2019 (hereinarter reierred to as theAct of2019), citing earlier decision of the authority fBrhimieet & Anr.

Vs.

N{/s Landmark Apartments Pvt Ltd, complaint no 141 of2018) whereby reliefofassured return was declined by the authority.

The authority has .eiected the aioresaid obiections raised by the respondent in cR/8001/2022 .itled os Glurov Koushik and anr.

Vatika Ltd. whercin the authority has held that when payment of assured returns is part and parcel ol builder buyer's agreement [maybe there is a clause in that document or by way of addendum, memorandLrm of understanding o. terms and conditions ol the allotmcnt ola unitl, then the builder is liable to pay that amount as PaC.11 al2s lrHARE l$- cLrnuc, Complalnt no.

7065 of 2022 add agreed upon and the Act of 2019 does not create a bar for payment of assured returns even after coming into operation as the payments made in this regard are protected as per section 2[a)0)(iii) of the Act of 2019.

Thus, the plea advanced by the respondent is not sustainable in view oa the aforesaid.easoning and case cited above.

22.

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

HoweveB inview oftaking sale consideration by way oladvance, the builder promised certain amount by way olassured .etu.ns fo. a certain period.

So, on his lailure to fulfilthat commitment, the allottee has a right to approach the author,ty for redressal oi his grievances by way offiling a complaint.

23.

The builder is liable to pay that amount as agreed upon and can't take a plea that it is not liable to pay the amount ofassured .etorn.

Moreover, an agreement deiines the builder/buyer r€lationsh,p.

So, it can be said thatthe ag.eement forassured returnsbetween the p.omoter and allotee arises out oi the same relationship and is marked by the acknowledgement letter.

24.

Itis not disputed that the respond ent is a.ealestate develope., and ithad not obtained registration under the Act of 2016 ior th€ project in quesiion.

However, the project in which the advance has been received by the developer f.om the allottee is an ongo,ng project as per section 3( 1) ofthe Act or2016 and, the same would fallwithin the jurisdiction ol the authority lor g,ving the desired relief to the complainants besides initiatinq penal proceedings.

So, the amount paid by the complainants to the builder is a resulated deposit accepted by the later from the former RANl lrHARERI S-r,unucnnu Complaint no.

7055 of 2022 and against the immovable properryto betransferred to the allottee lateron.

1n view oithe abov€, the respondent is liable to pay assured.eturn to the complainants-allottees in terms oF the acknowledgement letter dated 30.07.2015. c.ll.

Delayed possession charges 25.

1n the present complaint, the complainants intend to continue with the pro)ect and are seeking possession of the subject unit and delay possessioD cha.ges as provided under the provisions ofsection 18[r) of theActwhich reads as under: "Section 18: - Retunolonountandcompen tion 18(1) t the ptonoter loils to @nptete ot is unobte to qtve p p--to1q anoparlaeat DloL ot bu dtng' Pravidea that where on o ottee does not does not intend ta withdtow fon the praject, hesholl be poitl, bv the PrcnoEt inte'est Jor eve.f nonth ol delo!, till the honding over of the pasestan ot sL.h rote os no! be Presnibed 26.

Fu.ther, the authority observed that no specific time period with 'espect to handover of possession of the allotted unit to the complainant had been prescribed.

Therefore, in the case ofrortl,ne l rastructure ond Ors, vs.

Tfevor D'Lima on.l Ors. (12,03 2078 - SC); MANU/SC/0253/2018,rhe Hon'ble Apex Court observed that "a person cannot be made towait indeflnitelyfor the possession ofthe flats allotted to them and they are entitled to seek the reiund of the amount paid bv them, along with compensation.

Although we are aware of the fact that when there was no delivery period stipulated in the agreement' a reasonable time has to be taken into consideration ln the facts and circumstances of this case, a time period ol3 years would have been reasonable for completion ol the contract Since no BBA has been *HARERC S-eunuenRu Complaint no.

7065 of 2022 a.d executed between the parties therefore the due date of possession is deemed to be calculated as 3 years from the date of acknowledgement letter i.e., 30.07.2015.

Accordingly, the due date of possessioo comes out to be 30.07.2018.

27.

Admissibility of d€lay poss€ssion charges at prescrlbed rat€ of interest The complainants are seeking delay possession charges Proviso to section 18 provides that where an allottee does not intend to wrthdraw trom theproject, he shallbe paid, by the promoter, interest for every monih ofdelay, trllthe handing over ofpossessron, at such rate as may be prescribed and it has been prescrlbed under rule 15 ofthe rules.

Rulc 1s has been rep.oduced as under: " Rule 15, Pr$cibe.l rote ol interest' [Proiso to se.Tlon 12' secti@ 18 ond tub'se.tion (4) M.t stusectton (7) ol se.tion Fat the purpose oJ ptovie to sectioh 1Z tectioh 18; ond sub e.tahs (1) and (7) al Ycttan 19, the "inte..st at the nte p. the nte p.esnibed" shall be the Stote Bunk al lndn highest norginul Last ol lendtng rare +2% : P.owded thot in.oe the Stote Bonk aI hdio marstnotcoe of lendhg rote (MCLR) is not in 6e, it sholl be.eptaced b! such beh.hndtk lendng rcteswhich the State Bohkallndio ha!ft f.on nne b nne for knding to the generul Public" 2S.

Ihe legislature in itswisdom inthesubordinat€ legislation underthe rule l5 of the rules has determined the prescribed rate of interest' Consequently, as Per website of the State Eank of India r'e, i.co.irl the marginalcost oflending rate (in short, MCLR) as on date i.e..27.05.2025 is 9.100/0.

Accordinglv, the prescribed rate ofinterest will be marginalcost of lending rate +20,6 i.e., 11.100/0.

29.

On consideration of documents available on record and submissions made by the complaiDants and the respondent, the authorily is satisfied {THARERA S-eunuenev that the respondent is in contravention ofthe provisions of the Act.

The possession ofthe subject unitwas to b€ delivered within stipulated tim€ i.e., by 30.07.2018.

30.

However now, the proposition beiore it,s as to whether the allott€ewho is getting/entitled for assured .eturn even aiter expiry of due date ol possession, can claim both the assured retu.n as well as delayed possession charges?

31.

To answer the above proposition, it ls wodhwh,le to consider that the assured return is payable to the allottees on account ofprovisions in the acknowledgement letter dated 30.07.2015.

The assured return in this case is payable as per "acknowledgement letter".

The promoter had agreed to pay to the .omplainants allottee 1129.72/'per sq. ft. on monthly basis tillthe completion olthe project and thereafter i120l'per sq. ft. per month for up to 3 years or till the said unit is put on lease whicheve., is earlier.

If we compare this assured return with delayed possession charges payable under Proviso to section 18(1) of the Act, 2016, the assured return is much better i.e., assur€d retu. ur€d retu.n in this case is payableas 164,860/- per month whereas the delayed possession charges are pavable approximately ''32,0a41'per month Bv wav of assured .eturn, the prornoter has assured the allottee that he would be entitled lor this specilic amount till the said unit is put on lease.

Moreover, the interest of the allottees is protected even after the completion of the building as the assured returns are payable tillthe date ofsaid unit/space ,s put on lease.

The purpose ofdelayed possession charges after due date of possession is served on payment olassured return after due date oi possession as the same is to saieguard the interest ofthe allottees as their Pase2l ol2S Complatnr no.7065 of2022 and {}HARERA S-r,rnucnnl,l Complaint no.

7055 of 2022.nd money is continued to be used by the promoter even after the promised due date and in return, they are to be paid either the assured return or delayed possession charges whichever is higher.

32.

Accordingly, the authority decides that in cases where assured return is reasonable and compa.able with the delayed Possession charges under section 18 and assured return is payable even afte. the date oi completion of the project, then the allottees shall be entitled to assu.ed return or d.layed possession charges, whichever is hiSher without prejudice to any other remedy including compensation 33.

0n consideration of the documents available on the record and submissions made by the parties, the complainants have sought the amount oi unpaid amount of assured return as pe. the terms of acknowledgement letter issued thereto along with interest on such unpaid assured .eturn.

As per acknowledgement letter dated 30.07.2015, the promoter had agreed to pay to the complainants allottee {129 72l per sq. it. on monthly basis till completion oithe p.oject and 1120/' per sq. ft. on monthly basis after the completion ol construction of the said unii, ibr up to 3 years or till the said unit is put on lease, whichever rs earlier. s earlier.

I'he said claLrse aurther provides that it ls the obligation ol the respondent promoter to pay the assured retums lt is matter of reco.d thai the amount ofassured retu.n was paid by the respondent promoter till 18.10.2018 but later on, the respondenl relused to pav the same bv takinga pleaof the BanningotUnregulated Deln<lis'hemPsA't 2019 But that Act oi2019 does not c.eate a bar for payment olassured returns even alter coming irto operation and the payments made in this regard are protected as per section 2[4)(iii) ofthe above-mentioned Act.

Pa9e 22 tl 25 THARERA S- ernrcnnu ComplaiDtno.

7065of 2022atrd 34.

Admittedly, the respondent has paid an amount oi 125,94,400/, to the complainants as assured return till 18.10.2018.

Therelore, considering theiactsolthepresentcase,the respondent is directed topaytheamount oiassured return at the ag rced rate i.e., @ <729.7 2l- per sq. ft. per month from the date the payment of assu.ed return has not been paid j.e., 18.10.2018 t,ll the date of completion of the project after obta,njng occupation certificate from the comp€tent author,ty and thereafter, 1120/- per sq. ft. pe. month after the completion ol the bu,lding t,ll the date the said unit is put on lease or for the first 36 months after the completion oi the project, whichever ,s earlier ,n terms of acknowledgment lette..

35.

Accordingly, the respondent is directed to pay the outstanding accrued assured return amount till date at the agreed rate within 90 days from the date of this order after adjustment ofoutstanding dues, ifany, from the complainants and lailing which that amount would be payable with intcrest @ 9.10% p.a. till the date ofactual realization. c.lll.

Exe.ute BBA 36.

The respondent is djrected to execute the 88A with the complainants within a pe.iod of90 days from thedate ofthis order.

G.lv.

Litigation cost-:t88,000/- 37.

The complainants are seeking above mentioned relief w.r.t. compensatio n. ensatio n.

Hon'ble Su preme Cou rt of Ind ia in civil appeal nos.

6745 67 49 of 2027 tttled as M/s Nevrtech Promoters ond Delelopers Pw.

Ltd.

V/s State ol Up & Ors. (srpra), has held that an allottee is entitled to claim compensation & lit,gation charges under sections 12,14,18 and section l9whichis to be decided by the adjudicating offirer as per section THARERA S-eunrnnnvr Complaint no.

7065 of 2022 and 71 and the quantum of compensation & Iitjgation €xpense shalt be adjudged by the adjudicaring officer having due regard to th€ aactors mentioned in section 72.

The adjudicating ofticer has exclusive jurisdiction to deal wth rhe comptaints in respecr of compensation & legal expenses.

Thereaore, the complainants may approach the adjudicating officer. fl.

Directions ofthe authortty: 38.

Hence, the authority hereby passes this order and issues the tollowing directions under sedion 37 olthe Act ro ensure compliance ofobtisations cast upon the promoter as per the funcdon enrrusted to the authorty u nder sect,on 3a(D: a The respondent is directed ro pay rhe amount of assured return at the agreed rate i.e., @ 1129.72l- per sq. fr. per month from the date the payment ofassured return has not be€n paid i.e., 18.10.2018 n the date of completion of the project aft€r obrainjng occupation .ertificate lrom the competent authority and thereafr€r, 1120/- per sq. ft. per month after rh e complerton of rhe building tiltthe dare the said unit is put on lease or for the first 36 monrhs after the conrpletion ol the project whichever is eartier in terms of acknowledgment letter. b.

The respondent is directed to pay the oursranding accrued assured return amounr till date ar the agreed rate wjrhin 90 days from the date of this order after adjusrment ofoutstanding dues, itany, from the complainants and failing which rhar amount would be payabte with interest @ 9.10% p.a. till the dare ofactual realization. 'rlttl[6 *HARERA S- elrurc,nnr,,l 40.

41. davs lrotu the date ofthi 39. ofthi 39.

This decision shall mutatis apply to cases mentioned in para 3 The respondent shall not charge anything from the complainants which is not the part ofthe build€r buy€r agreement.

A period of 90 days is given to the respondent to comply with the directions given in this order and lailing whi.h legal consequ€nc€s e.

The respondent is dir€cted to allot and deliver the possession of booked unit and execute buyer's agreement within a period of 90 d.

Complaint no.7065 o12022 and True certified copies ofthjs orderbe on the case fileofeach matt€r. (Ashok tr) Datedr27. .2025 J -tD--,ll-i (Arun Kumar) Chairperson Curugram TER A I,4