ANKUR YADAV vs ELAN LIMITED

HARER GURUGRA[/ BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM ComplarntNo 7414of 2022 7+l1ot 2022 os.t2.zo22 16.05.2025 ComPlaint no Date oflillinSl Dale ol de(ision address: - Ho.

No 607l20. tsasai Road, PataudL Chowk, Opposite Nn ankari Bhawan, veer Nagar, Gurugram, Haryana'122001 Versus lV/S Elan Limited I100/25.

Blor k L I SrnqdmVihdr,N.'!vDelLr _110062 I sr,iloor Two Horizon Centre, DLF Phase 5, \eLtor 4 J. ('olr Lour\.

Road, Lurugram_ 122002 CORAMI ShriAshok Sangwan APPEARANCE: Shri Mukesh Aggarwal ShriAshwarya Hooda 1.

ORDER The present complaint dated 05.12.2022 has been filed by the complainant/allottee under section 31 of the Real Estate (Regulation and Developmentl Act, 2016 (in short, the Act) read with rule 28 ofthe Harvana RealDstate (Regulation and Development) Rules,2017 [in short, the Rules) for violation olsection 11(4)(aJ oathe Act wherein it is inler o/io prescribed th:t the promoter shall be responsible fo. all obligations, responsibilities and functions under the provisions ofthe Act or the Rules and regulations made there under or to the allottees as per the agreement for sale executed Counsel for Complainant Counsel for Respondent I s- i}HARER- $-eunrenm,t Complarnt No. ?414 of2022 MERCAD0, Syctor00. curugram.

Haryana.

4712.2019 23.08 201b (page 1Z oicomplaLno 11(a) khedule lot possessiott oJthe toid rnit.

2247 2t)16 {rs !e.trEo I44 ofrcnly) iAsp*pase35 orcompl n0 (As per pase 35 otcomplai.t) L Unit and pro,ect related details The particula.s of unjt details, sale consideration, the amount paid by lhe complarnant, date ofproposed handinB ove. the possession, delay period, il dny. hd!r been derdrled rn the rollowine ldbuld lorm: 6 Buye taarcemenr dated fhe Developer based on its projecl plonninA and $tinotes ord subtect ro all iltt e,cepnons endeavoun to conplet constr!.tion oI the Sdid Building/Soid Unitwithin o period ol$ Mths dth on qr4"'ims oJ funh.r te.tv. (12) non,J,s lton the . lton the .tate ol thts ogwt thte$ there sholl be deloy ot lbilure tlue to Covt deportnent delo! or due to ant cir.unstonc$ beyond th. power ond controlofthe Dewloper or Force MoieLre conditions including but not lintted B 3.

4. i}HARER #- eunLrcnlvr Compla'nt No.

7414or2021 to r@tuns hentioned in ctoue 11 (b) ohd 11(c) or due ro laiturc oI the Attottee(s) to po! i. tine the fotol Cohsiderction ond othq chorg5 and du$/pathenrs nencioned in this Aormqt or any lailurc oh the pott ol th.

Atto6ce(s) to obide br o or ant oI the tems and @ndttio6 ol thit Agr.enenL ln case thele is ont dew on th. port oJ the Allattee(s) ih noking of pathenat ta the Developer rhen not withstonding .ighat ovaitobte to rhe Developer ehewherc in this conto4 the period lor idplenentotion of the prcj.ct sholl ottu be dt ded br a span ol ti e eQuivoLnt to.och deto, on the porc oI the Attott@ (s) ir rcnidns potndt(t) to the DevetopeL 13.

Rs.35,38,818/- (as per appli.ant,ile on page 150 of.eplyl (as pe.applicant nle on page 150 ofreplyl t7.10.2022 07.03 2020 Jurther undettakesnotro toae ont luturc cloint, (calculated lrom the date drbuyeis asreemenr) 23.08.2021 Total sale.onsideration 12 0..up.rioncernficare ot.lerorposscsron for fit t7.n7.2020 Noter Clause 10. fto I has been lufther ogreed between the paniesthotwith the execLtion olth6 d eed, o t 1 | he d 6pu tes, t.e. clo i ns, d i s p u te, demontls, con cer ns a nd obtection s ol I he li rst oa /g in rcsqect althe soid untt on.l the prctect ont)/ot ogdinst the Lanpant ond pertun clolntns throush/under the .onpan!, ttontl lully ond lnolly settled to the suttsfaction olthe litst pony ond the l6t port, I ffFIARERA $!- ounuenlv Complarnt No 7414ol 2022 d\pute denul ttpa or ,onrern agotnst rtti tonpon!or on! of tLr ollhot e ot tB subs'dtorr Clouse 16.

That the patties nutually undeftoke thot this yttlenenr deed hos been conclud. withott coetcion, undue inluenca [email protected]. ond isfullond linat ond binding upon the Nnis. the Nnis.thot oU cloins, confkts shall be lnally consid.red os F.

3 Facts ofthe complaint 'l he complainant has made rhe fo11ow,ng submissions rn the complainr: That, based upon representation and assurances ol representative of the respondent, the complainant made a provisronal booking on 14.07 2016 in the said project by making a payrnent of Rs.13,87,500/- vide various cheq'res, wherein the respondent vide letter dated 24.07-2016 alteed and undertook to make a iixed payment of Rs.20,728l subject to Tax deduction at sourcq to the complainant as Assur€d Return till Possession.

That vide the same letter. rhe rcspondcnt allotted a Unit b€aring No.

FS-10 oo Food Court ha!,ing a Super Area ot 37s'sq. it. (herernafter referred to "p.operty rn qu.stion"l at the rate of Rs.7,400/- per Sq.

Ft. (Basic Sale Pricel which That, thereaftcr cxccuted a Builder Euyer Agreemenr ('BBA") dated 23.08.2016 was executed by the respondent in favour oithe ctaimanr, showjng a totalSale Consideration o4Rs.32,06,625l-, based on Special Fixed Return Plan, wherein the respondeDt as p€r Clause t 1(al agreed to handovcr the physical possession ofthe allotred unit with,n a pe.iod ol48 nronths rvith an extensron ollLr.rh.r 12 months from the dare oi the agreement i.e., upto 22.08.2021.

ISIARER GURUGRAIV That, it is pertinent to mention here that as per assurances of the respo.dentthat, ifthe complainant makes more paymentto it, rhen the complainant would receive more assured returns.

Accordingly, t,ll 28.09.2018, the complainant paid a total sum of Rs.34,15,775l-.

That, aiter receipt oithe said sum, the respondent as per its assurance and undertakings, enhanced the assured returns to the tune of Rs.36,684/- subjectto TDS andthe respondent kept pay,ngthe same rill December 2019 and last payment ofsuch assured return was credited into the account ofthe complalnanton 13.01.2020.

That, to the utter shockand dismay ofthe complainant, the r€spondent sent a letter dated 07.03. ted 07.03.2020 misinS a demand on offer oipossession for Fit-Out informirg lhat the area oftbe said Unit has been increased fronr 375 Sq Ft. to 423 Sq.

Ft.

Accordingly, the respondent raised an addit,onal demand for the sum of Rs.6,34,501/- after revising the BSP, Pl.C, EDC/lDC, IFMS charges of the said Unit, even after paying more than 100% oi the total sale consideration from the complainant.

Howsver, thecomplainant made a furtherpayment of Rs.

4,70,000/- to the respondent ,n good iaith, receipt ol which was issued by the respondenton 26.05.2020.

That, the complainaot invested his hard earned money in theabove said unit based on rhe assurances and representations made by the respondent, atthe time olallotnrent.

The complainant felt cheated by the r.spo nden t fo r u n rlate rally revisr ng the su per area and changing the Layout plan without any priorintimation to the complainant, hence, he issued a legal norjce dated 05.052020 to rhe respondent, seekrng refund of the amount paid by him or, allot another Commercial Unjt identicalto old Commercial U njt on preierential location withjn 15 days of receipt ofthe sa,d LegalNotice. iii 12a22 *s vii. b. d.

HARER' Complarnl No.

7a14 of 2022 GURUGllA[/ That, resultantly a No Dues Certificate dated 16.07.2020 was issued by rhe .espondent in favour ol the complajnant and a Settlement Deed dated 17.07-zo2\ was signed between the parties hereto The Settlement Deed was executed berween the parties based on various terms and conditions.

The relevant clauses are as follows: Company would waive ofi th€ interest on delayed payment for Rs. t8,430 /') co mpany would allow discount of Rs.

78,2 5 5 /_ Company would credit Rs.50,513/- on account Alldues against allott.d unit stands settledl Conrpany would handover the possession in 07.03.2020. aSainst PLC; r.rms of letter dated Thus, in th,s manner, the complainantpaid atotalsum ofRs.38,86,775l_ to the respo ndent for the properry in question. question.That after executing the Settlement Deed, the complainant contacted the respondent on multiple occasion to provide the i.formation on the Occupation Certificate and for hand,ng over of the said unit, how€ver, the respondcnt turned a deaf ear to the just and 1awful demand raised bv the complai.ant.

The respondent intentionally and deliberately evaded any information to the comPla,nant.

That in view ofthe abovesaid facts and circumstances, the respondent has miserably and deliberately ia,led to honour the te.ms and conditions of the Settlement Deed executed between the parties and hence. the same was revoked by th e com plainant vide legal noti.e dated 18.01.2021, which was duly served upon the respondent and the respondent fajled to respond the same. *HARERA S-eunrennv ComplaintNo.

7{14 of 2022 Thar in rhe garb of communication dated 15.01.2020 that the respondentwould handove.th€ possession oitheproperty in qu€stion, the res ponde nt stopped monthlyAssured Retu.n, which therespondent promised to pay to the complainant cont,nuously, but even tilldate in terms ofthe communication dated 15.01.2020, the respondent fajled to handover the possession oa the properry in question, which ex facie shows that the said communication was a fake attempt ol the respondentto escape from hisduties and obliSation.

Even thereafter, it was informed that the area of th€ property in question was increased to 423 Sq.ft., but even afte. increasedpayment, the respondent again failed to handover (he possession of the property in question, as well as, That, later on, in the month of septcmber, 2022, the complainant rcceived a Thank You Lctter irom the respondent, in which it adnritted that tiu date it not received any Occupancy Certificate from the concerned statutory authority.

Tha! now the complainant in the first week ofNovember 2022, again received a letter dated 18.10. ted 18.10.2022 from the respondentthat it now received the occupation cert,ficate from the l)rector Town and Country Plannin& Haryana, Chandigarh on 17.10.2022 and it willinitiate process ofhanding over oipossession and registration, but tiU date, no such communjcation iorthe same has been received by the complainant.

The lette. dated 18.10.2022 rtself shows thar rhe communication dated 05.01.2020 of the respondent lor informing the complainant that it received the occupanon certificate is That fro|n the act and conduct oithe respondent, it is established that the respondentwas having malafide intention from the very beginning and the respondent has deirauded aDd cheat the complainant by *HARER &.crrnrcnlnr Complarnt No.

7414 or 2022 exploiting payments.

The respondent intentionally and deliberately ind uced the complainant to accept the false and frivolous offers witho ui havingintention to fulfilthe sam€, as on one hand the respondent failed to handover the poss€ssion ofthe property in question and one other hand, stopped payment of the Assured Return, which the respondent was paying as per the terms ol purchas€ ol the property in quest'on, thus, the respondent violated the provisions ofthe RERA Act, the Rules and Regulations kamed thereunder.

That, thus, thc complainant is ent,tled for a sum of Rs.35,684/- per month from January 2020 till May 2020 [which comes to Rs.1,83,420l- as weu as a sum of Rs.41,783/- per month from May 2020 till the date ofhanding over oi physical possession of the unit, be,ng the amount of Assured Return @ 12% per annum, as promised by the respondent at the time ofpurchase oiand at the time ofexecution ofthe Builder Buyer However, as on 31.10.2022, amount olAssured Return from Nlay 2020 till october 2022, comesto Rs.12,11,707l' (Rupees lwelve Lakh Eleven Thousand Seven Hundr.d Seven onlyl and the complainani is also enritled aor Rs.41,783l- per month w.e.f.

November 2022 tillthe date ot handing over of the possession. ossession.

As the respondent iailed to perform its part ofobligation and pay the amount orAssured Return as per promise, the respondent is liable to .r'd the conrplainanr is enlitled to inlerest @ 18% per annum on the above noted amounts lrom the lanuary 2020 till actual f,nal realrsation olthe above noted anrount That apart from the above noted amount, the respondent is also hable to pay conlpensation on account ol inco nven ience, mental ha.assment, [.

4. lrHARERA *db- clnrrcnlut Complarnt No 7414or2022 inju.y, nnancial difficulties, financial loss, denc,ency olserv,ces, unfair trade pract,ce,legal cost, etc Reliefsoughl by the complainant: The complarnant has sought tollowing rel'erG).

5. on the date ofhearing, the authority explained to the respondent/promoter about the contraventions as alleged to have been committed in relation to section 11(4) [a) of th€ act to plead guilty or not to plead gujlty.

D.

Reply by the respondent 6.

The respondent has contested thecomplainton the following grounds. i.

That the present complaint is not maintainable in law or on facts.

It rs submitted that the present complaint is not maintainable before this Authority under the Real Estate (Regulation and Developmen0 Act.

2016 (hereinaiter referred to as 'the Act" for shortl and the Haryana Real Estate IResulanon and Developm.nt] Rules,2017, (hereinafter referred to as 'the Rules"l.

The present romplarnl dismissed on this ground alone.

Even otherwise, the complaint is not maintainable in law and merirs dismissal ii.

All avermen(s, claims. duegauons dnd contenhons raised complaint ofthe Complainant are denied as false and incorrect unless specifically admitted to be true by the Respondent.

Th€ contents ofthe Direct the respondent to pay a sum ofRs.13,95,127l- being the amount ol Assu red Return lrom fa \\aty 2020 titl 3t-70-2022: The.espondent be directed to pay the above noted amount of Rs. unt of Rs.13,95,127l- along with interest @ 18% per annum for every month delay in paynrent ofAssured Return. i. iii. f HARERT S- cunrennvr compla'nt No 7414 of202z complaint that are not being specifically admitted may be deemed to have been denied and traversed.

That the Complainant has got no locus standior cause ofaction to file the present complaini.

Thc p resent complaint is hased on an erroneons interpretation of the provrsions of the Act as well as an incorrect understanding of the terms and condtions of booking' as shall be evident from the submissions made in the followinS paras of the prcsent reply.The Rcspondent craves leaveolthis Hon'ble Authoritv to reLr to and rely upon the terms and conditions set out rn the application form as well as th€ terms and conditions for payment of fixed amount, in detail at the rime of the hearing ot the present complaint, so as to bring o'ut the mutual obligations and the respons)bilities of the Respondent as well as the Complarnanl That the present complaint raises seve'al such issues which cannot be dccidecl in snmmary proceedings' The said issues require extensive evidence to be led by both the parties and examination and cross examination oi witnesses for proper adjudication' Therefore' the disputes raised in the presentcomplaint can onlv be adjudicated bv the Civil Court.

The present complaint deserves to be dismissed on this That the Complainant is estopped by his own acts' conduct acquiescence,laches, omissions etc from filing the present complaint Thc ComplaiDant is spccilicallv estopped lrom filing the present complaint on account of the Settlement Agreement dated 17'07 2020 executed by the parties whereunder the Complajnant has agreed and undertaken that all his claims and disputes p€rtaining to the unit/proiect stand resolved and wherebv the ComplarDant has Complarnt No.

7414 ot2022 undertaken.ot to institute any proceedings againstthe Respondent in respect thereto. t thereto.

The Complainant has duly enjoyed the beneflts under the Settlement Agreem€nt and cannot be permitted to resile from the vi.

That this Authority does not have the jurisdiction to hear and decide complaints fo. grant ol compensat,on and the same can only be instituted before the Adjudicat,ng Officer.

Ivloreover, transactions pe(aining to payment ofassured .eturns are not covered under RERA and hence beyond the ju.isdiction of the Authority.

The complaint is liable to be dismissed on this ground as well.

That the Complainant has lailed to disclose the €omplete factual background of the case and the same are detailed as under.

That the project in question, "Elan M€rcado", located jnSecto.a0 Curugram, has been developed by the Respondent over land admeasuring 23 Kanals 18 Marlas or 2.9875 Acres situated in Viuage Naurangpur, Sector 80, Gurusram, { hereinafter, referred to as the land/the said Iandl owned by Ivlls R P Estates Pvt.

Ltd.

The said land became subte€t matte. of acquisition proceedinSs in 2004, which uhimately elapsed in August 2007 I\4/s R P Estates Pvt Ltd- applied ior and was granted License No.

82 of 2009 datcd 08.12.2009 in respect of the said land for the development of a Commercial Colony under Haryana Development and Regul:t,on of Urban Areas Act 1975, by the rompetent authority The land owner, R P Estat€s Pvt Ltd entered into a agreement \pith the Respondent in May 2013, in terms ol which the Respondent is competent to develop, constructand sellunits in the said proiect.

That itis pertinentto mentjon herein that M/s R P Estates Pvi Ltd. was and remained the owner in possession ofthe said land: . priorto theSection 4 Notiiication dated 27.08.2004; viii T ds HARER GURUGRI HARERA GURUGI?AN/ Complarnr No 7414 or202l . during th€ pendency olthe acquisition proceedings i.e.

27.08.2004 b 24.04_2007) . at the time whe. acquisition proceedings stood €lapsed on 26.04.2007: and . therealter even on 29.01. on 29.01.2010 when the decision was taken by rhe State Government in lndustries and Commerce Departmenr not to start any acquisition proceedings airesh and to close the acquisition ix.

That vjde its judgrnent in the matter ol Rameshwar and others Vs.

State ofHaryana and others, (Clvll Appeal 8788 / 2015 reportedas 2018 (6) supreme court cases,215), the Hon'ble Supreme Court was pleased to hold that the declsion of the State Governmenr dated 24-OB.2OO7 ro drop the acquisition proceedings and the subsequent decision datcd 29.01.20'10 ofthe Industries and Commerce D€partment to close the acqu,sit,on proceeding as well as the decision to entertain applications ror grant oflicenses irom those who had bought the land alter initiation of the acquisition proceedlngs, to be fraudulent.

That in terms o I the aforemen tion€d direction, the said land was righdy kept outside the scope ofthe aforenenrioned judgment., Subsequently th. ltespondent developed lhe land in pursuance to the licensed granted by the Competent Authority.

As per direction bl of para 3 9 ol the aforementioned directions the State extended heneiir ro rh.

Fxr.nr oi 268 Acres of land [which rncludes the said land] by declaring the sane to be outside th. dcenred award.l'he said land was rightly kept outside the deemed award in pursuance to directions passed by the Hon ble Supreme Court Court.

It is pertinent to mention herein thar neithe.

M/s R P Estates Privat€ Ltd nor the Respondent herein we.e itHARER,. -db- crnLrcnntt Complarnt No.

7414 of Z0ZZ party to the proceedings before the Hon'ble Supreme Court wh€n the said order was passed. xi.

Thar thereafte., vide order dated 13.10-2020, while dealing with an application no.93822/ 2020 nled on behalfofthe State ofHaryana for seeking clarification whether the lands in three cases pertaining to Paradise Systems Pvt.

Ltd., Frontier Homes Developers Pvt.

Ltd and Karma Lakeland Ltd. eland Ltd. stand covered and form part ofthe deemed Award or not, the l{on'ble Court passed the following orders: "We list the natter forJirther considerotion on 03 11 2024 at 10 3A am Pending lurther cansiderationt no third'parry rights shall be creoted ond no t'resh developnent in respect oJ the ennre 268 ocres ol land shotl be unclertoken.

All three aloresaicl developen are in)uncted lram creoting any lresh third-parry ghts dnd going ohead with development o[unlnishetl work at the Site except those related to maintenance and upkeep ofthe sjte-" xll.

That it is pertinent to mention herein that the said land,s also covered in 268 acres which fall outside the deemed Award as is therefore free trom acquisition Though the said land stands covered as per direction given in para b) ot39 passed by the Hon'ble Supreme Court in its order dated 12.03.2018, in view ol the aforesaid order dated 1310.2020 passed by the Ho6'ble supreme Court by way otabundant caution, the Respondent herein as well as M/s R P Estates Private Limited had moved an application before the t{on'ble Supreme Coirrt seek'ng rniplement in the nratter xiii.

That the Hon'ble Supreme Court vide its order dated 21.07.2022 in Paragraph 46 of the said orde. held that the lands owned by M/s R.P. llstates Pvt.

Ltd should be excluded from the deemed award.

The #HARERA S cLtnLrcnaH,r Hon'ble Supreme Court furtheraffi.med that rhe projedwas completed on 14.01 2020 xlv, Pursuant to the said Order passed by rhe Hon'ble Supreme Cou( the Itcspondent approached the omce ofthe Town and Country plann,ng Depa(ment, Haryana lor grant of Occupation Certificate which was subsequently granted on t7.70.2022 i.e. only within 3 months of passing ofthe said Order by the Hon'bte Supreme Court which clearly ind icates that th e construction of the project was comptere way back in January, 2020 and'lown and Country planninS Department, Haryana had no reasons to further delay the grant ofOccupation Certif,care. xv. ,care. xv.

That in the iacts and circumstances, ir is evident thar delay in grant of Occupation Certificate, despiterimelycompletion oiconstruction of the Complex was beyond the power and conrol of the Respondent.

The RespoDdent has at all times been readyand wilting to offer possession ofthe Un,t in a timely manner.

There is no default or lapse,n so far as the Respondent is concerned. xvi.

That coming to the la€ls on the partiolar case, it is submitted rhat sometime in luly 2016, the Complainant had independently approached the Respondent through Channel Partner Home Trust whereby the Complainant had expressed his interesi to book a commercial unit in the co mmercial compl€x known as "Elan Mercado" beingdeveloped by the Respondent in Sector-80, Gurugram, Haryana ("Proi€ct"l. xvii.

That making detailed enquiries and after indepeDdently satisfy,ng himself with regard to all aspects of rhe projecr , including bur not linited to th€ entitlement and capability oithe Respondent to develop the project, and aiterduly u nderstand ing and acceptingthe applicable ternrs and conditions governing the allotmenr and sale of units in the comme.cial complex in the Project, rhe Complainant approached the iTIARER, S-eunLrcnnu Respondent for allotment of a unit in the Projecr and had opted for a Special F,xed Return Payment Plan.

Copy of the apptication form executed by the Complainant after duly understanding and accepting the terms and conditions of atlotmenr.

Alotment letrer dated 22.07.2016 issued by the Respondent in favou. ot the Complainant allottingun,tno FS-l0inthesajd project ad measu ring 3 7S sq ftapprox., located on rhe 3,i itoor ofthe project. xviii.

Tharrheletterdatcd 24'i July20l6semngoutthete.msandconditions for pryment of fixed amount of Rs 20,728l- per month subiect to tax deduction at source, a.d duly accepted by the Comptainant.

It is submitted that,n accordance with paras 1 and 4 ofthe said lette. aid lette., the Respondent had agreed to pay to the Complainant fixed amount oi Rs 20,728l' p.r month,subiect to tax deduction atsource. till the issuaDce of offer of possession by the Respondent. lt was further clarified that oifer of possession shall not be dependent upon granr of completjon certificatc and occupation certificate and thar alrer issuance ofoffer oi posscssion, the Complajnant shall not be entrtled for payment of any fixed amount.

The terms and conditions of payment of fixed amount were duly accepted bythe Complainant. xix.

That in accordance w,th the agreemenr between the parties, the Respondent duly paid the fixed amount amounting to Rs.

10,65.757l ro the Complainant for a period of42 months i.e. with efaect from July 2016 tilllanuary 2020. 'Ihat th.

Buyer's Agreemenr containrng the detailed rerms and conditions oidllotmenr was willingly and consciously executed by the Complainant without ra,sing any objections.

That after completing construction of the project, the Respondent applied on 14.01.2020 to the competent authority for issuance olthe 0ccupation Cerrificate with No.7474 of 2022 ComplarntNo.

7al4of 2021 HAIIEA GURUGRAIV respect to the project Vide letter dated 15.01.2020 the Complainant was informed that the application for the Occupation certif,cate in respect of the p.oject had been submitted to the competent authority on 14.01.2020.

Th€ Complainant was further jnformed that with effect from 14.01.2020, the Complainant would not be entided to payment of fixed amountas per the agreed termsand conditions.

The Complainant was further info.med that the finalstatement ofaccount would be senr by the Respondent shortly to initiate the hand over process. 'lhat vide letter dated 07.03.2020 the Respondent, oalered possession ol th e u n it to the Complainant for fit-outs and settlement of dues The conrplainant !r:s informed thatthere was an increase in the super area olthe Unit allotted, trom 375 sq ft to 423 sq ft.

Accordingly, the. ngly, the.e was a corresponding increase in thecharges payable by the Complainant. lt rs pertinent to mentjoo that Respoodent has ofrered the possession ofthe Unjt in rhe project ior fit outs at their end so that as and when the occupation Certificate is issued by the Town and Country Planning Department, Haryana, the commercial operations kom the units can be commenced without there being any Ioss oftime, therefore, keeprng in viewthe r nterest of all the allottees in mind the Respondent issued olfer of possession lor f,t oLrts to the Allottees ,n the Complex including the That since the Complainant did not come lorward to take possession, reminder dated 14.05.2020 was issued to the Complainanrwhereby the Complainant was called upon to pay outstanding amount of Rs 6,53,222/- and intercst amountjng to Rs 18,621l- as per the details given in the said letter.

The Complajnant made part payment of Rs 4,70.000/ the receipt ol which was duly acknowledged by rhe Respondent vide receipt dated 26.05.2020. u HARERA GURUGRA]V ComplaintNo, 7414of 202Z That the Complainanr sent tegat notice dated 15.05.2020 to the RespondentwherebytheComplainantraisedce(ain grievancesagajnst the Respondent.l'he.eafrer, borh rhe pa(ies ente.ed into a Se(lement Agreement dated 17.07.2020.

The terms otthe Settlemenr Agreement a) Respondent provjded a waiver oi Rs.18,430/- to rhe Complainant lor interesr on delay payment made by the Complainant against the demand aor oiier ofpossession. b) Further, the Respondent provided a discounr of Rs.78,255/, towards Ir.eterential l,ocation Charses (Pl,Cl which were payable by the Complainant. c) The Respondent also a8reed to provide credit on account of input tax creditfor the sum ofRs.s0,513/- to the Complainant. 'lhe Settlement Deed was executed berween the pailies based on va.ious terms and conditions.

The relevant clauses are as tollows: c h i. j.

Conpany would waive off the interest on delayed payment for Rs. t8,430 /-; Company would allow discount ofRs. ount ofRs.

78,255l- against PLCi Company would credir Rs.s0,513/ on account oiinput taxj Alldues against allotted unjtstands setrledi Company would hand over the possession in terms of letter dated 07.03.2020. ln view of the settlement arrived at berrveen the parties, the Complainant withdrew the legal notice dated 15.05.2020 vide letrer dated 16.07.2020, a copy olwhich is annexed hereto as AnnexureRl4.

It is pertinent to mention that at the tinre of executio. of Setttement *HARERT S* ellrcnnv Deed dated 17.07.2020, the Respondent had already sropped payment ofthe fixed amount lor over 6 months.

The Complainanr ar the time oa execution of Settlement Deed dared 17.07.2020 was aware that no further amount towards fixed amount ,s tiable ro be paid by the Respondent to the Complainant.

The Complajnanr did not raise any objection with respect to tixed amount as the Comptainant was well aware that no further amount is liable ro be paid towards fixed amount by the Respondent.

The Settlement ASreemenr ctearly indicates rhat cenain waivers werc given ro rhe Complainanr by the Respondent.

Ihe Complainant at the rime of signing of the Setttement Ag.eement was made aware that no aurther amount towards fixed amount is tiabte to be paid to him by the Respondent.

The grievance wirh respect to payment ot lixed amount raised by the Complainant in th€ presenr complaint is not only an after thoughr bur also reflects greed oi the That the Project has been registered under the p.ovisions ofthe RERA Act,2016.

RERA Regiskrtion Certjficatc bearing Memo No.

HRERA - 137 Ib]/2017 /1056 dated 14.09.2017 is annexed hereto as AnnexureRlS.

The registration of the Project js valid till 13.09.2022, howev€r, the same stands extended by 6 months in terms oforde. dated 26.05.2020 passed by Hon ble RERA (AnnexureRl6).

That however, the Complainanr has lailed to rake possession oirhe unI oD false and lrivolous pretexts and has instead proceeded ro file the present frivolous complaint. complaint.

It js pertinent to mention herein that Clause l1 ol the Buyer's Agrecnrent, provides thar subject to rimely paynrent by the allottee and subject to delays beyond the control ofrhe Respondeni, the Respondent shallofler possess,on ofrhe unit within 48 *HARERA *db- e:nuennur compla,nr No.

7414of 2022 months from the date ofexecution otthe Buyer's Agreemen! with grace periodofl2 months. xivi. lhat, as has been submitted jn the precedjng paras of rhe preliminary objeclions, the issuance of rhe occuparion certificare was detayed on account oalitigation pending before the Hon'ble Supreme Cou.t and it is only upon issuance ofthe occuparion certificate thar the Respondent can hand overpossess,on ofthe units in the p.ojed to the allottees.

The Respondent cannot be held liable for delays caused on account of .easons beyond irs powerand conrrol.

That in so far as the Respondentis concerned, the Respondent had duty completcd construction well wirh in the agreed time lines aordeliveryot posscssion and within the period oi registration of the project under RERA. lhe applicat,on for issuance of ocorparion certincat€ was submitted to the competent authority as iar back as on 14.01.2020 and the same was issued or 17.10.2022, There is no defauh or lapse in so far as the Respondent is concerned.

However th€ Complainant has lailed to take over possession olthe sa,d Unit in question for r€asons bcst known to himself Copres of all the relevaDt documents have been f,led and placed on record.

Their duthenticity is not in dispute.

Hence, the complaint can be decided on the basis ol these undisputed documents and submission made by the Jurisdlction of the authorltyl The authority has territorial as well as subject marter jur,sdiction ro adjudicate th. prcsent conrplaint lor the reasons given below.

E,I Territo.ialiu.isdi.tion 'l *IARER S-eLrnLrc,nntr Compla ni No.74l4 of 2022 As per notification no.

1/92/2017-ITCP dated 74.t2. ted 74.t2.2017 issued by Town and CountryPlann,ngDepartment,the jurisdictionof Real Estate Regularory Authority, Gu.ugram shall be entire Gurugram District fo. all purpose with oflices situated in Curugram. ln the present case, th€ proje€t in question is situated within the planning area of GuruSram dist.ict.

Therelore, this authority has complete territorial jurisdiction to deal with the present subjccr matter jurisdirtion 0.

Section 11[4)[a] of the A€t, 2016 provides that the prornoter shall be .esponsible to the allottee as per agreenent for sale.

Section 11(4)(al rs rcproduccd as hereunder: section 11(4)(o) Be resr).n si ble j o r o ll obhsottan s, r espo nst bt h I e s onA fu n ctions unde. the prcvtstons of thts Act ar the rules ond rcqutotions ode therethderDrtothe ollottees as pettheoprcenentfor ele,or to the osodotran aJ ottottees, os the case noy be, titl the conveyonce ol all the aportments, plot ar bui|dings ot rhe cose noy be, to the ollottees, or th. cotunon oreas to the asnciation ofollatteet ot the conpebnr o uthon 9, o s the ca se na, be; Section 34-Fun.tiols of ah.

Aut orit : 344 afthe Act provides ro ensure conphance ofthe oblisations casr Lpan the prcnoteE, the ollotteesand the teal estote agents under th6 Acton.l the tule5ond rcgutotiohs node thercundel 1.

So, in view oi the provislons of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non-compliance oi obligntions by the promoter leaving aside compensation which is to be decided bythe adjudicating officer ifpursued by the compla,nants ata later 0. *HARER.. (b*eunuenrv Complarnt No.

7414of 2012 I' findings on the reliet soughl by rhe comptainanl.

Direc he respondent to paya sum of ofAssured Return from lanuary 2020 being the amount F.ll The respondent be directed to pay th€ above noted amount oa Rs.13,95,127l- along wirh interest @ t8o/o per an.um for every month delay in payment ofAssured Retu.n.

12.

That, a Builder Buyer Agreement dated 23.08. ted 23.08.2016 was executed by rhe Respondent in favour of rhe Compta,nanr, stiputatjng a totat sale consideration of 132,05,625l , under a Special Fixed Rerurn plan,.

As pe.

Clause I l(a) ofthe said tsllA, the Respondent underrook to deliver physical possession ofthe allotted commercial unit withjn a period of48 [forty,eish0 months from the date of execution of the agreement, with a furthe. grace period of 12 (twelvel months, i.e., by 22.08.2021. lr3.

That based on the assurances and inducements extended bythe Respondent, whereby it was represented rhat higher payments woutd entitte the Complainant to enhanced assured returns, the Complainant, adjng in good farth, paid a total sum of 134,16,775l- to the Respond€nt up ro 28.09.2018, which excceded the or,ginally agreed consjderation.

14.

However, to the utter shock and dismay of the Comptainant, the Respondent unilaterally revised the super area and attered the original layout plan without any prior intimarion, approval, o. consent of the Complainant, thereby breaching rhe terms of rhe agreemenr as wetj as the principles olnaturaljLrstice.

Consequendy, the Complainant was constrained to issue a legal notice dated 05.05.2020, cnlling upon rhe Respondenr ro ejther relund the entire amouor paid by the Comptainanr or to altot an alternate comnrercial unir, identical to rhe originatly allorted unit, at a pr.ioential location. wi!hin 15 days lrom the receipt oithe said notice.

That F1 Rs.r3,95,127 /- t 131.10.2022j {PHARERA #-eunuenntt Complarnt No 7414o12022 thereaiter, a Settl€ment Deed was executed betlveen rhe parties, incorporating €ertain terms and concessions.

The relevant terms ofthe said Settlement Deed are reproduced her€inbelow lor ready referencei .

Claus€ (1) lhe Company as.eed to waive interest on delayed payment amounting to 118,430/ ; Clause (2) 1he Company extended a discount Preferential Location Charges (PLCll Clause (3) The Company agreed to cred Complainant on account ollnput Tax Credit {lT Claus€ [4) Claus€ [4) It was mutually agreed that al1 dues a stood lully and finally settled, .

Clause (a) Ihe Company undertookto hand overpossession of the unit in accordance with its letterdated 07.03.2020.

15.

That as the Respondent has failed to discharge its contractual obligations includingbutnotlimitedto the payment oi the Assured Returns as promised under the SpecialFixed Return Plan,the R€spondent is liableto compensate the Complainant.

Accordingly, the Complainant is ennded to int€rest at the rate ol18o/0 per nnnum on the aforementioned amounts, calculated from JaDuary 2020 until th. actual and final realization ofthe said sums 16.

That the counsel for the respondent states that a settlement Deed dated 17 07.2020 was voluntarily executed betlreen the parties. incorporatrng 174,255/. ,t 150,513/, to c)i various mutually agreed terms and conditions.

17.

Thar in furrheran.e of rhe ra'd ami.able settlement the Complainant 15.05.2020 vide unconditionally withdrew his legal notice communi.erion dated 15.07-2020.

18.

It is significant to note tha! as on the dat€ of execution ol the Settlement Deed, the Complainant was lully aware that the Respondent had already drscontinued payment oa the assured return/fixed amount for a period PaEe 22 ot 21 exceeding six months.

Notwithstanding the same, the Complainant voluntarily entered into the Settlement Deed, wirh full knowledSe and without raisine any protest or obiection in relatlon thereto.

That the Scttlement Deed clearly records certain waiversand concessions gr:nted by the Respondent in hvour ot the Complarnant.

At the time ofexecution ofthe said Deed, the Cornplainant was duly,nformed and understood thar no lu.theramount towards assured returns/fixed amount was payable or liable to bc p.rjd by the llcspondent t9.

Therefore, the allegations raised by th€ Complainant in the present complaint, in relation to non paymenl of assured returns, are clearly an afterthought,lacking bona fides and devoid ofany merit. any merit.

The same appear to be motivated by malice and greed, and are liable to be rejected outright.

As per Clause 10 and Clause 16 of the Settlement Agreement, all disputes claims, denrands, and objections between the parties stand iully and nnally settled.

For ready reference, Clauses 10 and 16 are reproduced b€low Clause lO.Thdt ithosbeenlrrtheragrced between the porties thot with the execution af ths deed, all the disputes, Le- cloims, dispute, demands, concernsand oblecnonsofthe frst party in tespect althe soid unit and the prolect and/or agoinst the company and persan claimins through/under rhe company, stond Iutly ond lnollr settled ta the sotisfaction of the first porry ond the lirst parE further undertakes not at raise any future claims, dispute, demand, oblect or cancern againstthe conpany or any of i6 ofiliate oritssubsldtory.

Clduse 16, That the parties mutuolly undertoke that this settlenent deed hasbeen conclude withau t coe rcrcn, undue inlluence,threut etc an.l ts Jull o nd linal on.l bind ing upan the parties Thot all cloims, conlrcts shollbe Jitnlly consi,teredas sexle.l lor once onctatt 20.

Upon conskler.rtion oi thc submissions nnd docunrents on record, this Authority ilnds that the Settlement Deed dated 17.07.2020 was executed voluntanly by both pafiies and reflects a mutual and binding .esolution of t}HARERJ s- crnrrcnnur C.nDLaint N.

7,114of 2022 1 ln the absence of any speciric evjderce or pleadjng alleging fraud, misrepresenration, coercion, or undue in uence in th€ executron ofthe said settlement, this Aurbority cannot disregard the bjnding nature ot the In view ol the above, the conrplaint is hereby dismissed.

However, the Complainant is ar liberry to seek appropnate remedies befo.e a competent Author,ry/court.

Complaint stands disposed ot File be consigned to reg'stry.

Dated:16.05.2025 ffHARERA *6D* c!i?Lrcnlnr (:ohplarnt No 7414 o12022 Haryana Real Estate Regulatory Authority, Curugram 2 3.

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