TERLOCH SINGH PUNHANI vs VATIKA LIMITED

HARERA ffiGURUGRAM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGMM Date of decision: I OZ.OI.ZOZ; Complaint no.

7338 of 2022 and, another NAME OF THE BUILDER VATIKA LTD.

PROJECT NAME VATIKA INXT CITY CENTER s.

No.

Case No.

Case title APPEARANCE 1. cR/7338/2022 Poo V; Sh.

Harshit Goyal Sh.

Ankur Berry 2. cR/7339/2022 Terloch Sin5 Vatikz Sh.

Harshit coyal Sh.

Ankur Berry ,*l rroq+a s[i \ r\ -r\ lF CORAM: a /r\l L 12 Shri.

Arun Kumar Elzr l)/r.- Chairperson Shri.

Vijay Kumar Goyal lr^41 Member Shri.

Ashok Sangwan Member XGFeq)z 1.

This order shall dispose ofboth the complaints titled as above filed before this authority i 69cHor 31 of the Real Estate (Regulation and [#ilJVJ"o* referred as,,the Act'') read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules,2017 (hereinafter referred as,.the rules,,J for violation of section 11(a)[a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se between parties.

Page I of 29 ffiHARERA P- ounuennvr 2.

Complaint no.

7338 of2022 and, another The core issues emanating from them are similar in nature and the complainant[sJ in the above referred matters are allottees ofthe proiects, namely, 'VATIM INXT CITY CENTER, being developed by the same respondent promoters i.e., M/s Vatika Ltd.

The details ofthe complaints, reply to status, unit no., date ofagreement, & allotment, due date ofpossession, offer ofpossession and reliefsought are given in the table below: 3.

Project Name and Location Centre", Sector 83, Vatika India Assured return clause The brood terms of A) Assured month unit is poyoble till completion of to k.

720/- sq. ft- super return lrom the dote oI 36 months or till the said project on omount OCr Not obtained Offer ofpossession: Comp no. cR/7339 /2022 Application dated 27.07.2075 16 of complaintl 06.10. ntl 06.10.2015 17 ofcomplaintl Date ofBBA Not executed Not executed Unit no, and area P-388 admeasuring 500 sq. ft.

1B ofcomDlaint P-364 admeasuring 500 sq. ft. .17 ofcomplaint Due date ofpossession Cannot be ascertained Page 2 of 29 I cR/7338/2022 08,09.2 015 [pg.

33 of reply] Acknowledgement letter 04.1,7.2015 [pg.

18 ofcomplaint] HARERA MGURUGRAM 4.

It has been decided compliance of promoter/respon mandates the au the promoters, the rules and the regul 5.

The facts of all the comp Complaint no.

7338 of 2022 and another an application for non- the part of the of the Act which obligations cast upon nts under the Act, the e complainants/ allottees are A.

6. also similar.

Out of the above-mentioned cases, the particulars of lead case CR/7338/2022 titled as pooja punhani V/s Vatika Limited. are being taken into consideration for determining the rights of the allottees qua delay possession charges, quash the termination letter get executed buyers' agreement and conveyance deed.

Unit and proiect related details The particulars ofunit details, sale consideration, the amount paid by the complainants, date of proposed handing over the possession, date of buyer's agreement etc, have been detailed in the following tabular form: Total consideration sale and TC: { 34,38,600/- AP: t 34,38,600/- TC: { 34,38,600/- AP: < 34,38,500/- Assured return paid <24 ,1,2 ,843 / - tilt October 2018 I 25,63,376l- till October 2078 Direct the respondent to paypenainffi Direct the respondetrt to pay DpC liom due date of possession till actual physical possesslon.

Direct dre respondent to execute tbe conveyance deed of the booked unit in favour ot complainanL To impose the penalty upon the respondent company tor non-regisEation ofreal €srare proiectin question vadka towers with authority. : h the table referred above TC:Total consideration : Amountpaid by the have been used.

They are elaborated Page 3 of 29 l:. of 29 l:.

HARERA MGURUGRAI/ CR/7338/2022 titled as Pooja punhani V/s Vatika Limited.

7338 of 2022 and another S.

Particulars Details 1.

Name ofthe project Vatika Tower, GolfCourse Road, Gurugram, Haryana 2.

Acknowledgement letter 04.71.201,5 [Page 18 ofcomplaint] 3.

Date ofbuilder buy agreement 4.

Unit no. and size i^rih, n^ P-?AA ..1 ft. [super areal [Page 1B of complaintl 5.

Assured as per lel 04.1L.20 HAH GURU of ossured retum qre -Assu of the ths or lease edrlier,.... ble) Page 18 of rEo coml said till t, whic (Note: N( complaint 6.

Possession clause N.A 7.

Due date ofpossession Cannot be ascertained B Total sale consideration Rs.34,38,600/- (Page 33 of replyJ PaEe 4 of 29 HARERA P*GURUGRAI/ Facts ofthe complaint The complainant has a.

That the com Vatika T respondent b.

That the and is engaged Gurugram.

7338 of 2O2Z and another the real estate proiect rugram developed by evelopment company estate projects across orm dated 05.09.2015 t at commercial real B.

7. ::ff#"gr$"{lrGi n gorr course road' The respondent company issued Allotment Letter dated 04.11.201S in favour of complainant confirming allotment of Unit No p-3g8 measuring 500 sq ft in real estate proiect namely Vatika Towers situated on golf course road, Gurugram.

As per clause (aJ of the Allotment Letter dated 04.11.2015, the respondent company was liable to pay assured return amount of Rs Total amount paid by the complainant Rs.34,38,600/- (As alleged by the complainant at page Occupation certificate Not obtained Offer ofpossession Amount of assured return paid by the respondent to complainant till O 20tB Rs.2+,12,8+3/- Page 5 of 29 HARERA GURUGRAM Complaint no.

7338 of 2022 and another 133.33/- per sq ft per month to the complainant from the date of issuance of Allotment Letter till the date of completion of construction ofbooked unit.

The respondent company had failed to pay the promised assured monthly commitment from the month of August 2018 till date. till date.

As per clause (b) of the Allorment Letter dated 06.10.2015, the of Rs 120/- per sq ft e complainant from the date of completion of constructi unit till 36 months or till the booked unit is put The responden ession of the booked of issue of allotment of possession was unit within a letter.

Th 04.77.2018. ffer lawful and legal possession of date. pation Certificate till h.

That the complainant hard-earned money in the booking of promises complainant. obligations of him stated orally and under the Builder Buyer Agreement duly executed between both the present parties.

Therefore, the present complainant is forced to file present complaint before this Hon'ble authority under Section 31 of Real Estate Regulation and Development Act,2016 read with Rule 28 of 'the unit in the project in question on the basis of false made by the respondent at In order to allure the nt.

However, the respondent has failed to abide all the PaEe 6 of 29 ffiEAREIA *ffi- eunueRRv Complaint no.

7338 of 2022 and another Haryana Real Estate [Regulation and DevelopmentJ Rules,2017 to seek redressal of the grievances against the respondent company.

C.

Reliefsought by the complainant: 8.

The complainant has sought following relief(sJ: a.

Direct the respondent to pay pending monthly assured return of {133.33/- per sq. ft. accrued from the month of August 2018 along with interest to the complainant. b.

Direct the respondent valid offer of possession oc.

Direct the respon unit in favour o To impose registration auth ority 9.

On the date of /promoters about the in relation to section 11(4 guilry. m due date of possession till veyance deed of the booked t company for non- vatika towers with to the respondent to have been committed to plead guilty or not to plead ';il:'::J"H::J,GffJ3,U"Gr*,AAAf .,,.winggr.unds: a. r.unds: a.

That in the year 2015, the complainant, Iearned about the commercial proiect launched by the respondent under the name and title 'Vatika Towers' [now, Vatika INTX City Centre) and repeatedly visited the office of the respondent to know the details of the said proiect. estate prolect in q HARER^A Page 7 of 29 ffiHAREIA ffieunuenRHl c. term, agreed to execute the d.

That the Com fact that the execution of the Buyer's of the said allotment.

It is submitted that the ed the Complainant in order to get delaved at the e.

That the unit and subject to change, as was categorically agreed between the Parties in terms of the Application form.

It is further submitted that the sale ofthe said unit is sub.iect to force majeure conditions and the said clause has been duly accepted by the Complainant without any demur or protest.

That as per clause 19 ofthe Application form, The lntending Allottee agrees that the sale ofthe premises is subiect to force majeure clause Complaint no.

7338 of2022 and another That after having an interest in the commercial project being developed by the respondent, the original allottee vide an application form dated 05.09.2015 tentatively allotted a unit tentatively admeasuring 500 sq. ft. for an amount of < 34,38,600 /- on free will and consent, without any demur whatsoever.

Thereafter, considering the future speculative gains, payment towards the sideration ofthe said unit with the sole intention of m e from the same.

That thereafter, tted a priority no.

P-388 in the said proi that complainant was b. aware of te only upon resaid allotment and PaEe B of 29 HARERA GURUGRAM Complaint no.

7338 of 2022 and another which inter alia include delay on account of non-availability of steel and/or cement or other building materials, or water supply or electric power or slow down strike or due to a dispute with the construction agency employed by the Company, civil commotion or by reason of war or enemy action or terrorist action or earthquake or any ac or any act of God or if non delivery of possession as a result of any notice order, rule or notification ofthe government and/or any other public or competent a r any other reason beyond the control of the Compan of the aforesaid events the Company shall be ble extension of time for delivery of That the construction of the said proj beyond the control of the Respo That at this that the complainants are trying to m cealing facts which are detrimental to t the application form 09.2015 was in the form of an "investment ants had approached certain investment said unit contained a "lease clause" which empowers the developer to put a unit of complainants along with the other commercial space unit on lease and does not have "possession clauses", for physical possession.

Hence, the embargo of the Real Estate Regulatory Authority, in totality, does not exist.

That it is also most humbly submitted that the present complaint is not maintainable and the complainants Page 9 of 29 HARERA MGURUGRAM the commi Compfaint no.

7338 of 2OZ2 and another herein has no locus standi.

The complainants merely seek to earn profits.

That in any case whatsoever, the aspect ofleasing of the unit and the investment of the Complainant cannot be dealt with by this Hon'ble Authority.

Regardless, at the utmost bonafide, the Hon,ble Authority is most humbly appraised by the fact that the Respondent had been by it.

That it is submi pondent vide its letter dated 04.lt.2015 has acknow receipt of the application form and further it Respondent sh the Complainant that the ises which clears the air that the C an investor who has booked the me at the behest of the Respond 04.11.2015 issued by the Respo e complaint. h.

That it is humb on'ble Authority that the Respondent was alwa making the payment of assured e said unit.

It is not out erein had been paying every month to the Complainant without any delay since October 2015 till October Z01g (i.e., for 36 months].

It is to note rhat as on 18.10. on 18.10.2018, the Complainant herein had already received an amount of Rs.

24,12,843/- as assured return as agreed by the Respondent as per the aforesaid allotment.

However, post October, 2018, the Respondent could not pay the agreed Assured Returns due to change Page 10 of29 HARERA MGURUGRAM in the legal position and the illegality of making the payment of the same.

I That it is humbly submitted before the Hon,ble Authority that the respondent was always prompt in making the payment of assured returns as agreed under the agreement.

It is not out of the place to mention that the respondent herein had been paying the committed since October 2015 ti 18.

It is to note that as on 18.10.2018, the complai had already received an amount of 124,1.2,843/- by the respondent as per the aforem ', post October,2018, the respondent returns due to change in the legal p same. g the payment of the i.

That the com of "Assured Returns" which is beyon is Ld.

Authority has been dressed with.

That fro iusal of the RERA Act, it is clear medies in case of any with respect to the ment.

That such remedies are provided under Section 18 of the RERA Ac!

2016 for violation of any provision of the RERA Act, 2016.

That the said remedies are of "Refund" in case the allottee wants to withdraw from the proiect and the other being "interest for delay of every month" in case the allottee wants to continue in the proiect and the last one is for compensation for the loss occurred by the Allottee.

7338 of 2022 and another PaEe 1l of 29 HARERA ffiGURUGRAI/ Complaint no.

7338 of 2022 and another "Unregulated Deposit That it is relevant to mention here that nowhere in the said provision the Ld.

Authority has been dressed with iurisdiction to grant "Assured Returns".

That the non-payment of assured return post October, 2018 as alleged by the Complainant in her complaint is bad in law.

It is pertinent to mention herein that the payment of assured return is not maintainable before the Ld. re the Ld.

Authority upon enactment of the Banning of Unregula emes Act, 2019 IBUDS Act].

That any direction fo t of assured return shall be tantamou nt to vio ofthe BUDS Act.

It is stated that the ls under the said Agreement, cl eposit" and falls under the ambit of us.

The Respondent was barred making any payment towards Scheme". l. e pertaining to the assured return is al and Haryana matter of 'V 26740 of 2022,had issued notice to the Respondent Parties and had also restrained the competent authorities from taking any coercive actions against the Respondent in this matter in criminal cases for seeking recovery against the deposits till the next date ofhearing.

Page 12 of 29 k.

HARERA P* GURUGRAM p.

7338 of 2022 and another That it is also apropos to bring into the knowledge of the Ld.

Authority that an Appeal bearing no.

95 of 2022, titled as Venetian LDF Proiect Limited vs Mohan yadav, is already pending before the Hon'ble Haryana Real Estate Appellate Tribunal (HREAT).

Wherein, the Hon'ble Tribunal vide order dated 14.05.2022, has already stayed the order passed by this Hon'ble allottee. o.

That moreover, very 3.02.2023, rhe Ld.

Tribunat had taken cognizance ed case before the Hon'ble High Court and ng the arguments and -k adjourned the matter in ding before the High Court.

That the Co of said the allotment, seek enfo f an Investment Return Scheme before ich is specifically barred and banned under BUDS Act, hence the present is placed on the istrict Court Guru gram M/s.

Vatika Ltd. and Anr.

ICIS NO.

338 of 2022]. q.

That it is specifically mentioned under Rule 2(1)(C) what is included in the meaning ofdeposits along with other transactions which does not constitute deposits.

Under sub rule [1)(c) fxii) [b] of Rule 2 of the Deposit Rules, an amount shall not be termed as deposit if received in advance, accounted for in any manner whatsoever, in connection PaEe 13 of 29 ffiHARERA S- aJRUGRAN/ Complaint no. plaint no.

7338 of 2022 and another with consideration for an immovable property under an agreement or arrangement, provided that such advance is adiusted against such property in accordance with the terms of the agreement or the arrangement.

However, explanation to Rule 2 (1) (cJ clearly states that any amount received by the Company as instalment or otherwise, from a person as a deposit.

Therefore, ly requires compliance with the rules of MCA and releva ns of the Companies Act to take prior approval osits failing which punitive actions will foll s.

That as per s thu D"porit Rrl"r, no eived and adjusted However, exp under an agreement. cally states that is the advance/ins ise to give returns shall be termed as Deposit will be under obligation to r. ;"#:,ilTH, of first schedule of the of MCA as per first schedule, the ted deposit schemes.

That column III offirst schedule ofthe BUDS Act defines the various kind of deposit along with their regulators under column I.

If any deposit as per Schedule I of BUDS Act fall under regulated deposits then company is not in violation ofthe BUDS Act.

However, ifdeposit is not in compliance with the procedure laid down under the Companies Ac! the Company would be not only in rriolation ofthe PaEe 14 of 29 ffi HARERA ffi aJRricRA[/ such circu Complaint no.

7338 of2022 and anotier provisions of the Companies Act but also under the BUDS Act and therefore will be exposed to penal actions under Section 76A of the Companies Act and deposit being unregulated will also fall foul and liable to be tried under penal provision ofthe BUDS.

Therefore, if Depositor accepts any deposit, it immediately required to take prior approval from the Regulator as mentioned under Schedule I ofthe BUDSAct.

And therefore, for the presentmatter, the Regulator shall be Min rate Affairs as provided under if the Respondent continues last entry of Schedule paying the As provisions of it as per the relevant S Act, the same will be contraventi the Respondent will be nt will be exposed In the pre rmance was sought before a civil ction to grant relief in accordance with 963, it would have been compulsory to plead ness and willingness and other statutory p admission c relief, and the above t of specific relief.

In complaint for specific performance under the Act,2076 is nothing but permitting the Complainant to do indirectly, what he could not do directly, and the same ought to be nipped in the bud by the authority.

Therefore, the Ld.

Authority not being a civil court could not assert to itself the iurisdiction to grant specific performance of the "assured returns" which is a relief under the Specific ReliefAct, 1963 Page 15 of 29 HARERA ffiGURUGRAM That it is pertinent to note herein, that nowhere in the said provision the Ld.

Authority has been vested with jurisdiction to grant assured returns or any other arrangement between the parties with respect to investment and returns.

Therefore, the complaint is filed with grave illegalities and the same is liable to be dismissed at the very outset and the complainants directed to file pursue their complaint pertaining to assured Also, the construction project was hindered by the circumstances respondent.

And in case the construction is majeure" conditions the respondent w period for completion.

The force m ers in the year 2015 restraining ars to ply on roads of NCR & Delhi, the stone crushers to operate, NGT ibiting construction work for a period of 1 r lockdown imposed by the caused hinderance in the project site. and placed on the record.

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of those undisputed documents and submissions made by the parties.

12.

Written submissions filed by the complainant and respondent are also taken on record and considered by the authority while adiudicating upon the relief sought by the complainant.

7338 of 2022 a\d another PaEe 16 of 29 71.

HARERA ffiGURUGRAM Complaint no. plaint no.

7338 of 2022 and another E.

Jurlsdiction ofthe authority 13.

The authority observes that it has territorial as well as subiect matter iurisdiction to adiudicate the present complaint for the reasons given below.

E.

I Territorial iurisdiction 14.

As per notification no.

7/92/2017-LTCP dated 74.12.201.7 issued by Town and Country Planning D nt, Haryana, the iurisdiction of Haryana Real Estate ty, Gurugram shall be entire Gurugram district for all pu the present case, the project in question is situated wj of Gurugram district.

Therefore, this au iurisdiction to deal with the present compl E.

II Subiect- 15.

Section 11(4) (al e promoter shall be responsible to the e.

Section 11(a) [a] is reproduced as he Section 77(4) (a) and Iunctions tions made for sale, or to the associa conveyqnce oy be, to the ofall the qllottees, or ollottees or the competcnt authority, qs the cose may be.

Section ,4-Functions oJ the Authority: 34A b ensure compliance of the obligotions cost upon the promoter| the qllottees and the reol estate agenB under this Act and the rules ond regulations mode thereunder, 16.

So, in view of the provisions of the Act quoted above, the authority has complete iurisdiction to decide the complaint regarding non-compliance ofobligations by the promoter leaving aside compensation which is to be Be responsible for all under the provisions o. thereunder or to the o Gr-*r6i' PaEe 17 of29 HARERA MGURUGRAIi decided by the adjudicating officer if pursued by the complainants at a later stage.

Findings on the obiections raised by the respondent.

F.l.

Obiection regarding maintainabitity of complaint on account of complainant being investor The respondent took a stand that the complainants are investors and not consumers and therefore, they are not entitled to the protection of the Act and thereby not entitled to complaint under section 31 of the Act. f the Act.

However, it is pertinen any aggrieved person can file a complaint against the pro contravenes or violates any provisions of the Act made thereunder.

Upon careful perusal of the allotment letter, it is revealed that the paid a considerable amount to the project.

At this ase of unit in its the definition of term allottee under the ow for ready reference: " 21d1 "ollottee meqns the person to whom o ilding, as the cose may be, freehold or leosehold) allotment t does not include a building, as the case 18. ln view of the above-mentioned definition of ,'allottee,' as well as all the terms and conditions of the buyer,s agreement executed between promoter and complainant, it is crystal clear that the complainant are allotteefs) as the subiect unit was allotted to them by the promoter.

The concept of investor is not defined or referred to in the Act.

As per the definition given under section 2 of the Act, there will be ,,promoter,, and Complaint no.

7338 of2O2Zand another F.

77. rinant is bu ent-promo Page 18 of 29 79.

HARERA GURUGRAM Complaint no.

7338 of2022 ar,d another "allottee" and there cannot be a party having a status of "investor".

Thus, the contention of the promoter that the allottee being investor are not entitled to protection of this Act also stands rejected.

F.II.

Obiection regarding delay due to force maieure circumstances.

The respondent in its reply has contended that force mareure conditions such as: NGT orders in the year 2015 restraining the diesel vehicles more than 10 years to ply on roads ofNCR & Delhi, NGT orders in year 20L6 restraining the stone te, NGT orders in November prohibiting construction wo riod of 1 week and thereafter lockdown imposed by e to outbreak of COVID-19 caused hinderance i on activities at the project site. ftqtq q.ri 20.

The events such to curb pollution in were for a shorter NCR, various o duration of time ual feature. l feature.

Further, all the orders re after the lapse ofthe due date of possession as parties and one cannot be allowed to take 2t.

Accordingly, the the possession of the unit within the ti less of unforeseen events or stay orders.

Thus, the promoter-respondent cannot be given anyleniency on based ofaforesaid reasons and plea taken by respondent is devoid of merits.

F.III.

Pendency ofpetition before Hon'ble Punlab and Haryana High Court regarding assured return 22.

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

26740 of 2022 titled as "Vatika 'ble Page 19 of 29 GURUGRA[/ HARERA Complaint no.

7338 of2022 and, another Limited Vs.

Union of India & Ors.,,, took the cognizance in respect of Banning of Unregulated Deposits Schemes Act, 2019 and restrained the Union of India and State of Haryana for taking coercive steps in criminal cases registered against the company for seeking recovery against deposits till the next date of hearing.

23.

With respect to the aforesaid contention, the Authority place reliance on order dated 22.11.2023 in CWp No.

26740 of 2022 (supraJ, wherein the counsel for the responde s) submits before the Hon'ble High Court of Punjab and Ha even after order 22.1,1.2022, the court's i.e., the Real uthority and Real Estate Appellate Trib with the pending appeals/revisions dared 22.L7.2023 no.

267 40 of 20 pending civil ap Authority and they matters that are pending cordingly, vide order and Haryana in CWP n adjudication on the Estate Regulatory further in the ongoing e relevant para of order dated 24 22.11.2023 is reproduced herein below: "...it is pointed out that there is no stay on adjudica the pending civil appeals/petitions before the Reat Regulatory Authoriry qs also against the invest tion on Real Est1te investigating ogencies and they are st liberty to proceed further in the ongoing maders thqt qre pending with them, There is no scope for ony further cldification" Thus, in view of the iew of the above, the Authority has decided to proceed further with the present matter.

Findings on the reliefsought by the complainant, G.L Assured return.

G.

Page 20 of 29 HARERA MGURUGRAI/ complaint no.

7338 of2022 and another 25.

The complainants are seeking unpaid assured returns on monthly basis as per the acknowledgement letter at the rates mentioned therein. [t is pleaded that the respondent has not complied with the terms and conditions ofthe said acknowledgement letter.

Though for some time, the amount of assured returns was paid but later on, the respondent refused to pay the same by taking a plea that the same is not payable in view of enactment of the Banning of U d Deposit Schemes Act, 20L9 (hereinafter referred to as 9), citing earlier decision of the authority (Brhim,eet & Anr. dmark Apartments P!t.

Ltd., complaint no 141, of20 sured return was declined by the authority. e aforesaid objections raised by the res as Gaurav Kaushik has held that when and anr.

Vs, Vt payment of of builder buyer's ment or by way of agreement (may addendum, memo terms and conditions of the allotment of a unitl, th is Iiable to pay that amount as agreed upon and e a bar for payment of assured returns n_as the payments made in this regard are iiD of rhe Act of 2019.

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

26.

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

However, in view of taking sale consideration by way of advance, the builder promised certain amount by way of assured Page 2l of 29 HARERA S*GURUGRAI\4 returns for a certain period.

So, on his failure to fulfil that commitment, the allottee has a right to approach the authority for redressal of his grievances by way of filing a complaint. complaint.

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 of assured return.

Moreover, an agreement defines the builder/buyer relationship.

So, it can be said arises out of the same agreement for sale. is marked by the original 28.

It is not disputed that th estate developer, and it had not obtained 016 for the project in question.

H ce has been received by the developer 3(1) ofthe Act of the authority for ject as per section the .jurisdiction of complainants besides initiating penal pro by the complainants to the builder is a regulated d by the later from the former to the allottee later on. assured return to the ment letter dated Complaint no.

7338 of 2022 and another 27. against the immovable property to In view of the above, the responder complainants-allottees in terms o 04.11.20t5.

G.II.

Delayed possession charges 29.

In the present complaint, the complainants intend to continue with the proiect and are seeking possession of the subiect unit and delay possession charges as provided under the provisions of section l8[1J of the Act which reads as under: the allottee is an o Page 22 of 29 31.

7338 of 2022 and another prescribed rate of possession charges. by the promoter, interest for sion, at such rate as withdraw from the project, hr every month of delay, till the ffl I [:T::TH"tTgf1ffi.RAffi r rute 1 5 0f 'fhe ru'ies "Rule 75, Prescribed rate of interest- lProviso to section 72, section 78 qnd sub-section (4) ond subsedion (7) olsection 791 For the purpose of proviso to section 12; section 18; ond sub-sections (4) ond (7) of section 19, the "interest at the rate prescribed" shall be the Stote Bank of Indio highest marginal cost of lending rqte +20k.: Provided thqt in case the State Bank of lndio marginal cost of lending rote (MCLR) is not in use, it shqll be HARERA GURUGRAN4 " Section 78: - Return of omount ond compensation 1B(1). ion 1B(1). rythe promoterfails to complete or is unable togive possession of on opartment plot, or building, - Provided thqt where on allottee does not intend to withdrow from the project, he shall be paid, by the promoter, interest for evety month oI delay, ti the honding over of the possessio4 ot such rate os mqy be prescribed' 30.

Since there is no possession clause in the allotment or application form and the complainants have e .full payment with respect to the sub,ect unit accordingly the ssession is calculated 3 years from the date of acknowle 04.11.2075 as held in Fortune Infrastructure v.

442 : (2018) 3 SCC (civ) 7 and then was & Infrastructure Ltd, V.

Govindan possession co re, the due date of Admissibility of interest: The co Proviso to section 18 p allottee does not intend to Page 23 of 29 HARERA P-GURUGRAI/ Complaint no.

7338 of2O22 and another replaced by such benchmark lending rates which the Stote Bonk of Indio may lx Irom time to time for lending to the genersl public" 32.

The legislature in its wisdom in the subordinate legislation under the rule 15 of the rules has determined the prescribed rate of interest.

Consequently, as per website of the State Bank of India i.e., https; //sbi.co.in. the marginal cost oflending rate (in shorl MCLR) as on date i.e., 07.01..2025 is 9.100/0.

Accordingly, the prescribed rate ofinterest will be marginal cost of I i.e.,')-l.l0o/o. le on record and submissions 33.

On consideration of docum made by the complaina ent, the authority is satisfied that the respondent rovisions of the Act.

The possession of the within stipulated time i.e.,04.11.2018.

However now, th ether the allottee who expiry of due date of as well as delayed is gening/entitled possession, can clai possession charges? ile to consider that the nt of provisions in the 34 acknowledgement letter dated 04.1,L.2075.

The assured return in this case is payable as per "acknowledgement letter" the promoter had agreed to pay to the complainants allottee Rs.133. ee Rs.133.33/- per sq. ft. on monthly basis till completion ofthe building and Rs.120 /- per sq. ft. on monthly basis after the completion of the building up to 36 months or till the said unit is put on lease, whichever is earlier.

If we compare this assured return with delayed possession charges payable under proviso to section PaEe 24 of 29 HARERA ffiGURUGRAM 18(1J of the Act,2016, the assured return is much better i.e., assured return in this case is payable as Rs.65,665/_ per month whereas the delayed possession charges are payable approximately Rs.

3l,BO7 /_ per month.

By way of assured return, the promoter has assured the allottee that he would be entitled for this specific amount till completion of construction ofthe said building.

Moreover, the interest ofthe allottees is are payable for the first 3 te of completion of the proiect or tillthe date ofsaid unit/ n lease, whichever is earlier.

The purpose of delayed served on payment due date of possession is te of possession as the same is to as their money is continued to be e promised due date and in return, th return or delayed possession charges 36.

Accordingly, the auth where assured return is reasonable and comparab possession charges under section 18 and after due date of possession till the ect, then the allottees shall be entitled possession charges, whichever is higher without prejudice to any other remedy including compensation.

37.

On consideration of the documents available on the record and submissions made by the parties, the complainants have sought the amount of unpaid amount ofassured return as per the terms of BBA and addendum executed thereto along with interest on such unpaid assured Complaint no.

7338 of 2022 and another PaEe25 of29 returns ffi HARERA ffi aJRuGRAM Complaint no.

7338 of2022 and another return.

As per acknowledgement letter dated 04.11.2015, the promoter had agreed to pay to the complainants allottee Rs.133.33/- per sq. ft. er sq. ft. on monthly basis till completion of the building and Rs.120/- per sq. ft. on monthly basis after the completion of the building up to 36 months or the said unit is put on lease whichever is earlier.

The said clause further provides that it is the obligation of the respondent promoter to pay the assured returns.

It is matter of record that the amount of assured return was paid by the respondent I October 2018 but later on, the taking a plea of the Banning of respondent refused to pay Unregulated Deposit t that Act of 201.9 does not create a bar for even after coming into operation and are protected as per section 2(4J(iii) o 38 Admittedly, the Rs.

24 ,72 ,843 / - to the complainants as as Therefore, considering the facts ofthe presen irected to pay the amount of assured return at the @ Rs.

133.33/- per sq. ft. per month from the has not been paid i.e., ilding and thereafter, October 2018 till Rs.

120/- per sq. of the building up to 35 months or the said unit is put on lease whichever is earlier.

39.

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 of outstanding dues, if any, from the complainants and failing which that amount would be payable with interest @ 9.10%o p.a. till the date of actual realization.

PaEe 26 of 29 HARERA GURUGRA[/ Complaint no.

7338 of 2022 and another G.llI.

Conveyance deed 40.

With respect to the conveyance deed, clause 8 of the BBA provides that the respondent shall sell the said unit to the allottee by executing and registering the conveyance deed and also do such other acts/deeds as may be necessary for confirming upon the allottee a marketable title to the said unit free from all encumbrances.

41.

Section 17 (l) of the Act deals with duties of promoter to get the conveyance deed executed is reproduced below: "77.

Transfer oI title.. (1). tle.. (1).

The promoter shall execute o registered conveyance deed in lovour of the ollottee along with the undivided proportionote title in the common oreos to the association of the allottees or the competent o uthoriq/, os the cose moy be, ond hand overthe physicol possession of the plot, apqrtment of building, as the cose may be, to the allottees and the common areos ta the ossociotion oI the allottees ot the competent authoriqL as the cose moy be, in a reol estote project, and the other title documents pertoining thereto within specified period os per sanctioned plans qs provided unde-r the locftl lqws: Provtded rhaL in theabsence oJ ony locol law, conveyonce deed in fovour allottees ot the of the ,, as the case may be, ject where the subject ondent promoter till date.

As on date, conveyance deed cannot be executed in respect of the subject unit, however, the respondent promoter is contractually and legally obligated to execute the conveyance deed upon receipt of the occupation certificate/completion certificate from the competent authority. ln view ofabove, the respondent shall execute the conveyance deed of the allotted unit within 3 months from the final offer of Page 27 of 29 MHARERA ffi eunuennvr Complaint no.

7338 of2022 and another possession after the receipt of the OC from the concerned authority and upon payment of requisite stamp duty by the complainants as per norms of the state government.

G.IV, To impose the penalty upon the respondent company for non_ registration of real estate proiect in question vatiki towers with authority.

43.

The planning registration branch of the authority is directed to inquire the matter and take necessary action against the respondent under the provisions of the Act, 2016, H.

44. t of assured return at Directions of the authority: Hence, the authority he er and issues the following directions under mpliance of obligations cast upon the pro sted to the authority under section 34( a. ion 34( a.

The respond the agreed ra er month from the date paid i.e., October 2018 the payment of till the date of comp ding and thereafter, Rs.

120/- per sq. ft. per the building till the first 36 months a or till the date the said unit is put on b.

The respondent is directed to pay the ou ding accrued assured return amount till date at the agreed rate within 90 days from the date of this order after adjustment of outstanding dues, if any, from the complainants and failing which that amount would be payable with interest @ 9.100/o p.a. till the date ofactual realization.

PaBe 28 of 29 GURUGRAM HARERA e. d.

46.

7338 of2022 and another The respondent shall execute the conveyance deed of the allotted unit within the 3 months from the valid offer ofpossession after the receipt ofthe OC from the concerned authority and upon payment of requisite stamp duty as per norms of the state government The respondent shall not charge anything from the complainants which is not the part ofthe builder buyer agreement.

A period of 90 days is given to the respondent to comply wirh the directions given in thi would follow. iling which legal consequences cases mentioned in para 3 True certified copi case file ofeach matter.

Files be consi Member Haryana Real Gurugram Dated:07.01.2025 tor Page 29 of 29 (Asho( nJ Me