DR HARMEET SINGH KAPOOR AND DR SATVINDER KAPOOR vs NEO DEVELOPERS PVT.LTD.

1,.

Complaint no.

50 of 2 24and 3 others cR/50 /2024 Dr.

Harmeet Singh Kapoor & Dr.

Satvinder Kapoor V/s M/s Neo Developers Pvt.

Ltd. cR/s9 /2024 Dr.

Ltd. cR/60/2024 cR/+6/2024 Dr.

Ltd.

Dr.

Sawinder Kapoor V/s M/s Neo Developers Pvt.

Ashok Sangwan ffi HARER: S.eunuennl,,r BEFORE THE HARYANA REAL ESTATE REGU AUTHORITY, GURUGRAM TORY jinder Singh omplainants) nkaj Chandola Respondent jinder Singh jinder Singh )mplainants) kaj Chandola !e9pon{qqtJ jinder Singh omplainants) kaj Chandola ndent led before this (Regulation and ') read with rule Order pronounced o :14.05.2O25 Name of Promoter Neo Developers Private mited Proiect Name Neo Square S.no. fCompfailtt fVo Complaint title ORDER DevelopmentJ Act,2016 [hereinafter referred as ,,the A 28 ofthe Haryana Real Estate [Regulation and Developm (hereinafter referred as "the rules"J for violation of sectio nt) Rules, 201 7 11(4J(al of the This order shall dispose of 4 complaints titled as above authority in form CRA under section 31 ofthe Real Estate Mem-l !".

I oter shall be Act wherein it is inter alia prescribed that the p Page 1 of 30 1.

2.

3.

4.

CORAM: ffi HARER; #-eunuennHl responsible for all its obligations, responsibilities and allottees as per the agreement for sale executed inter se 2.

The core issues emanating from them are similar in namely, "Neo Square', being developed by the same resp i.e., NEO Developers private Limited.

The terms and pertains to allotment and possession of the units in qu delayed possession charges.

The details of the complaints, reply status, unit no., da possession clause, due date of possession, offer of poss consideration, amount paid up, and reliefs sought are gi below: Proiecti "Neo Square,,, Sector-109, Gurugram Clause. am Clause.lo "That the co@ building/complex within which the said space is locoted within the date of execution of this agreement or fiom the start complainant[s) in the above referred matters are allo of the projecr, functions to the etween parties. nature and the dent/promoter nditions of the ion along with of agreement, ssion, total sale en in the table n of the soid months from construction certificate.

The finol letters to as mentioned builder buyer's agreements fulcrum ofthe issue involved n all these cases whichever is later and apply for grgnt of completion/occuponc" compqny on grant of occupancy/cottlpletion cerfirtcate shall issu the allottee who sholl within 30 days, thereofremit dll dues.,, 1.

Completion certificote- 14.08.2024 2.

DTCP License no.

102 of Z00B dsted 15.05.200g volid upto 1 .05.2025 - Shri Maya Buildcon pvt.

Ltd. and 5 Ors. are the licensee for the proi in land schedule of the project.

3, Nature of project- Commercial Colony dated 24.09.20t2, valid upto 22.02.2024 2 oI 30 ) Complaint no.

SO of 4 and 3 others 4.

REP.A registration _tog of 2017 ff HARER,'. #*eunuennl,r Complaint no.

50 of2{ 24 and 3 others Sr.

No Complaint \o./title / date of complaint Reply status Unit No. and area admeasur ing Date of execution of agreement for sale Due date of possession & Offer of possession Toti conl and pair Cor (s) I sale ideration amount I by the plainant netiei Sought I cR/50/2024 Dr.

Harmeet Singh tGpoor & Dr.

Satvinder M/s Neo Developers PvL Ltd.

DOF.

24.07.2024 Reply received 24.O4.20 24 [Jnit no.-58, C, Cround floot, 275 sq.ft [As on paSe no.

36 of complaint) 01.11.2016 (As on page no, 32 ol complaint) Due date- 01.11.2019 (Calculated agreement being laterJ offerof Not offered BSP: Rs.

2 (As c 23 Rs.2( (As o 2? of ,68,750 / 1 page no aint) 30,2?

4 / r page no. -eply) Return, CD, DPC, 2. cR/se /2024 Dr.

DOF- 24.01.2024 Reply 24.04.20 24 Unit no.

4 Unit no.'58- 8, Ground floor, 275 sq.ft [As on page no.

36 of complain0 01.11.2016 (As on page no.

32 of complaint) Due dare 01 11.2019 (Calculated bcing laterJ Oifer ol N()toffered 8SP Rs.2: [As o 23 Rs.26 (As o 27 of 68,750/ - paSe no, intl 30,274/- PaSe no. eply) Return, n, DPC, CD, 3. cR/60 /2024 Dr, Harmeet Singh Kapoor & Dr Sawinder M/s Neo Developers Pvt.

24.01.2024 Reply 24.O4.20 24 Unit no.-58- D, Cround floor, 275 sq.ft [As on page no.

50 of complaintl 01 11.2016 (As on pase no.

32 ol complaintJ Due date- 01.11.2019 (Calculated agreement being later, Offerof Not olfered BSP: Rs.2i (As o 22 comp Rs.26 (As or 27 of 68,7sO /- page no ol inr) )o,274/- page no. eply) Return, n, DPC, CD Page 3 of 30 -u tr HARERA ffieunuennv Complaint no.

50 of2( 24 and 3 others 4. cR/46/2024 Dr, Harmeet Singh Xapoor & Dr.

Lrd.

DOF- 24_0r_2024 Reply received 24.04.20 Unit no.

58- A, Cround floor, 505 sq.ft. (As on page complaint) (As on page no.

57 of complaint 01.11.2016 (As on page no.

34 of complaint) Due date- 01.11.2019 (Calculated from date agreement being laterJ Offer of possession- Not offered 8SP: Rs.

4 (As ( comp Rs.4{ (As o 2? of .66,2s0/ - n page n aint) ,30,t37 / - l page no. 'eplv) Return, Possessir n, DPC, C .nts against th )n committed b 6.

Note: In the tabte refer.ea afore ce.t i, aEtiviations fruri tee" ,r.eajrr.i Abbreviations Full form DOF- Date oi filing complaint BSP- Easic Sale Price AP Amount paid by the a oitee(sl -+ ir, promoter on account of contraventions alleged to hav the promoter in relation to Secrion 11(4)(a) ofthe Act lain ebe .20 :D he by -u 5.

6.

It has been decided to treat the said complaints as an application for non_ compliance of statutory obligations on the part of the promoters/respondent in terms of section 34(0 of the Act which mandates the authority to ensure compliance of the obligations cast upon the promoter, the allottee(s) and the real estate agents under the Act, the rules the rules and the regulations made thereunder.

The facts of all the complaints filed by the complainant(sJ /allottee(sl are also similar.

Out of the above-mentioned case, the particulars of lead case CR/50/2024 titled as Dr.

Satvinder Kopoor V/s Neo Developers Pvt.

Ltd. are being taken into consideration for determining the reliefs ofthe allottee(s) qua allotment and possession of the unit in question along with delayed possession charges.

Page 4 ot 30 A.

7. ffiHARERi S* eLrnlrcnnu Proiect and unit related details The particulars of the project, the details of sale conside paid by the complainant(s), date of proposed handing ov delay period, if any, have been detailed in the following ular form: CR/50/2024 titled as Dr.

Hormeet Singh Kapoor & '.

Satvinder KaDoor V/s Neo De Pvt, Ltd, on, the amount the possession, Complair't no.

50 of 20 4 and 3 others Particulars Name of the proiect Neo Square, Sector-109, Proiect area 2.77 acres Nature of the proiect Commercial colon Unit no.

Unit no.-58-C, Ground flo As on Dage no.

36 ofcom laint Unit area admeasuring 275 sq.ft.

As on page no.36 ofcom Date ol MoU 07.L7.20'16 As on page no.

19 of com Date of execution of apartment buyer's 01.1 1.2 01 6 (As on page no.

32 of complaintJ Possession clause 77. "That the company sholl complete the construction of the sdid bwilding/complex within which the soid space is located within 36 months execution of this ag the date of t or from the start of construction wh and apply fo, gront of completion/occupancy certifrcdte.

The company on gront of occuponcy/completion certrfrcate sholl issue finol letters to the ollottee who sholl within 30 days, thereof remit all dues." e no.

22 of comDla[nt Date of start of construction The Authority has decidpd the date of start ofconstruction as 15.12.2015 which was agreed to be taken as date of start of construction for the same project in other matters.

In CR/7329 /b.

R/7329 /b.O7g it was admitted by the respondent in his reply that the construction wal started in the month of December 201 5- Page 5 ol 30 B.

8. ffiHARER S-eunuennnr Facts ofthe complaint The complainants have made the following submissions: - That the complainants were assured by directors ofthe respondent company that they have already obtained all the mandatory permissions/clearances to construct the project, which would be constructed strictly in conformity with the sanctioned pian and further assured that the construction of the project will be completed within 36 months of purchasing the unit.

That the director and employees ofthe company finally induced the complainant to purchase the unit in their investment return plan wherein the company would make the payment at the rate of Rs.727.4/- per sq. ft. per month for the area purchased if full payments towards the unit are made by the complainants at the time of booking or at the time of execution of Memorandum of Understanding (MOU).

Mr.

Ashish Anand and Mr.

Manish Bhota, Directors of the company, assured the complainants that there will be no delay in making payment towards the investment return under any circumstances whatsoever.

I, II, 10.

Due date of possession 07.17.2079 I (Calculated from date of I later'l I Rs.22,68,750 /- | [As on naoo nn ?? ^f-^J greement being 11.

Basic sale consideration 12.

Amount paid by the romplainant ffi [4s_o_r!:_aLle no.

2 7 of repli,l sffi e 72 of com la int 07.06.2021 13.

Occupation certificate 14.

Offer of possession 15.

Reminder ),6.

Final Notice Page 6 of 30 73 * HARERq #-eunuennv III.

That the complainants entered into pf"r*trna,_ 7 Understanding with the company on 01.17.2076 and MOU was signed by Mr.

Manish Bhola, Director of the said company.

Further, it was assured that the investment return would be paid till the property is not leased out.

Complaint no.50 of2 4 and 3 others IV.

That based on the above inducement and assurance of Mr. nce of Mr.

Manish Bhola and the employees of the company, the complainants purchased 4 Commercial shops/units on the Ground floor and executed the Memorandum of Understanding dated 01.11.2016 having area admeasuring 275 sq. ft. super built up area at the rate of Rs.8,250/- per sq. ft. wherein commercial shop/unit bearing no.

58D was assigned on ground floor.

That on the misrepresentation by Mr.

Manish Bhola Directors of the respondent company, the complainants have already purchased shop/unit no-58A and also invested in shop/unit no 5BB, 58C, 5BD.

That the complajnants paid a sum of Rs.23,70,g441- towards consideration ofthe commercial shop/unit no.

SgD, vide cheque no.

067722 dated 2g.10.201,6. lt was agreed under the MOU rhar a monthly return of Rs.35,035/- shall be payable as investment return from 01.11.201g.

The price was given at discounted rate since the complainants were getting the assured return after z years from the date of entering the BBA and MoU and the assured return of initial 2 year was adjusted in the price of the commercial unit.

That the respondent on 14.11.201g raised the demand of EDC and IDC for shop/unit no.

58D on Ground floor of the project amount to Rs.L,45,992/-.

The said demand was duly tulfilled by the VI.

Page 7 of 30 HARERA P*GURUGRAII complainants by making the 26.71.2078.

VII.

That the company demanded VAT from complainants, several times on the same unit despite the fact that the same was paid at the time ofvery first demand only.

The company raised the demand towards VAT amounting to Rs.1,13,43g/_ on 30.03.2017 and the same was paid by the complainant vide cheque no.

O9B2Z2 for which receipt dated 19.05.2017 was issued by the respondent.

Later the respondent vide letters d,ated 22.01.2020 again raised demand of Rs.

1,88,582/_ for shop/unit no.

58C towards the VAT. s the VAT.

Ir aspires that the payment towards VAT which was made by buyers in 2017 has not been deposited with the concerned authorities by the respondent-company and due to the said reason, the respondent-company is demanding VAT again and again from the buyers with the sole intent of cheating the buyers and garning wrongfully from them.

Hence, the demand for the VA.l. raised subsequently are illegal per_se and liable to be set aside, VIII, That the payments of investment return were completely stopped and are due since Ianuary 2019.

The mala fide intentions of the company also became conspicuous when the company sent a letter dated 18.12.2019 communicating its unilateral decision of not paying any investment return till the completion of the proJect.

IX.

That the company sent an email dated 0}.O4.ZOZ0 to the complainants in order to obliviate itself from its responsibility of paying monthly assured return, the company invoked force majeure clause despite the fact that no such clause pertaining to force majeure exist either in M0U.

The company is forcing complainants to sign lease assignment form by which the company f___+___ I Complainr no.

50 ot 2{Z+ "na : o*,"1 - payments of Rs. t,4$,992/- on Page I of 30 trHARERA #, eunuonnv intends to lease out their unit to a third party and has atfo inserted a clause according to which after the execution oflease Jssignment form, the company will be obliviated from irs ."rponribffity to p.y the monthly investment return and threatens tliat if the complainants do not sign the lease assignment forn{ then the company will forfeit our unit in accordance with MOU. this shows that the company from the inception had no intention lto Day the investment rerurn to the buyers and had prepared Uirrfa rr,tOU to suit its whims and wishes.

X.

That the respondent senr letter dated 01.10.2020 and 21..1O.2OZO for registration of BBA and MoU with revised fee.

On 30.10.

On 30.10.2020 the respondent again sent illegal demands towards the VAT without providing explanation for such demand.

Later, the respondent again sent letter dated 22.O1,.ZOZ2 for illegal demands ofVAT without providing explanation for such demand towards the unit.

Xl.

That the wrongful acts of the company are not only limited to this, the company deducted TDS on the investment return paid by it, but till date the company has neither issued TDS certificate for the same nor deposited the deducted tax to the authorities due to while tax liabilities of the complainants are increased due to the fault of the respondent.

XIL That despite assurance of completion of construction of project within 36 months of purchasing the unit or from the commencement ofconstruction, the construction has still not been completed even after passage of almost g years.

The structure of only office building is constructed but which is also nowhere near to completion.

The building wherein food court and restaurants as Page I of 30 ff HARERJ #,eunuennH,r were explained at the time of entering MOU, has been {onr,.**a up to 2nd floor only and there is no sign of constru{tion of the Tower wherein INOX nine_screen clnema, serviced f,p"rar"n,, infotainment and entertainment zone were shown In thf brochure.

It has also come into complainant,s knowledge thrt thf .ornprny has not even received the licenr, ' I trom the concerned authorities to construct the tower/building besides office building. thI company has further cheated by selling food court and restaurafit units to other buyers on 2nd and 5th floor as well.

Further the cofnpany has syphoned the money of the buyers and at present donft have the requisite money to pay the investment return and cofnpete the project.

Xlll.

That the company sent final notices dated 0 7.06.2021 raising illegal demands of dues and again no explanation was provided for the illegal demands by the respondent.

Hence, the demand dated 07 .06. ed 07 .06.202i, are Iiable to be set aside being illegal.

XIV.

That the complainants have filed the complaint before Economics Offences Wings Delhi on 16.03.2022 wherein FIRNo- 0046/2022 has been filed under sections 406/420/1208 againsr the respondent.

Reliefsought by the complainants: c. o ll. i ii.

The complainants have sought following relief(s): Set aside the illegal demands of VAT made by the respondent vide letter dated 30.03.2 017 and 22.0L.2020.

Direct the respondents to make payment towards assured return.

Direct the respondent to pay delay possession charges and executc conveyance deed in their favour Restrain the respondent from entering the lease deed with 3,d party till the completion of project and handing over of possession to complainants.

IV.

Page 10 of 30 I Complaint no.

50 of 2{24 and 3 others 10. * HARER : $&- ounuonnv 0n the date of hearing, the authoriry "*o@. about the contraventions as alleged to have been commidea in relation to section 11(4) (a) of the act to plead guilry or not to plead guilty.

D.

Reply by the respondent 11.

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

That despite repeated reminders and request, the respondent has not received outstanding amount from the complainant till date.

Vide final notice/deemed cancellation letter dated 07.06.2027, it was brought to the very knowledge of the complainants that there exist an outstanding due of Rs.2,17,965/_ which was required to be paid within 15 days from the date ol final notice/deemed cancellation letter i.e., on or before 27.06.2021.

It was further intimated to the complainants through the f.inal notice/deemed cancellation lefter that in case complainant failed to clear outstanding dues within the time period, the respondent would be compeiled to consider this failure of complainant as breach of the terms and conditions of the MoU as well as the agreement and accordingly the unit no. e unit no.

Sg_C in the proiect of the respondent shall be treated as cancelled from the next day following the last date of payment and the complainant shall be left with no lien, right, title, interest or claim of whatsoever nature in the said unit.

It is submitted that post cancellation of the unit, the respondent requested the complainants to visit their office for the purposes of handing over the original documents in the custody of the complainants and for the purposes of executing the refund proceedings.

However, the complainants despite of requests and reminders by the respondent deliberately and malafidely did not Page 11 of 30 I c"rdr", noJo "f ,$4 -d 3 ",h"" ffi HARERq #* eunuennvr approached the respondent and proceedings could not be executed.

At the outset, the complainant has erred gravely in filing the present complaint and misconstrued the provisions of the Act, 2016. lt is imperative to bring the attention ofthis Authority that the RERA Act was passed with the sole intention of regularisation of real estate pro.iects, and the dispute resolution between builders and buyers and the reriefs sought by the comprainant cannot be construed to faI within the ambit of RERA Act.

That the complainant has failed to provide the correct/complete facts that she is investor and not allottee therefore, the same are reproduced hereunder for proper adjudication of the present matter.

That the complainants with the intent to invest in the real estate sector as an investor, approached the respondent and inquired about the pro.iect i.e., ,,Neo Square,, situated at Sector_109, Gurugram, Haryana being developed by the respondent.

That after being fury satisfied with the project and the approvals thereof, the complainant decided to apply to the respondent by submitting a booking application form dated 2g.10.2016, whereby seeking allotment of unit no.

5gC, admeasuring Z7S sq. ftsuper area on the ground floor ofthe proiect having a basic sale price of Rs.22,6g,7 50 / _ .

7 50 / _ .

The complainants, considering the future speculative gains, also opted for the investment return plan being floated by the respondent for the instant proiect.

That since the comprainant had opted for the investment return plan, a Memorandum of Understanding dated 01.11.2016 was executed between the parties, which was completely a separate understanding between the parties in regard to the payment oF @ due to which (he refund II. lll. iv.

Page 12 of 30 ffi HARERH #. eunuennvr assured returns in lieu of investment made by the complainan; the said project and leasing of the unit/space thereof.

It is pertinent to mention herein that as per clause 1g ofthe Mou, the returns were to be paid from 01.11.201g and as per clause 7 of the MoU, the returns were to be paid tiI notice ofpossession. [t is arso submitted that as per clause 12 of the MoU, the complainants had duly authorised the respondent to put the said unit on lease. v.

I'hat by no stretch of imagination it can be concluded that the complainants are,,allottee/consumer.,, The complainants are simply investors who approached the respondent for investment opportunities and for a steady assured returns and rentai income. vi.

That as the complainants in the present complaint are seeking the relief of assured return, which is not maintainable befbre the Authority upon enactment of the BUDS Act.

Further, any orders or continuation ofpayment ofassured return or any directions thereof may tantamount to contravention of the provisions of the tsUDS Act. vii.

That the complainants in the present complaint are claiming the reliefs on basis of the terms agreed under the MoU between the parties which is a distinct agreement than the buyer,s agreement and thus, the MoU is not covered under the provisions of the RERA Act,2016.

Thus, the said complaint is not maintainable on this basis that there exists no relationship of builder_allottee in terms of the MoU, by virtue of which the complainants are raisjng their gneyance. gneyance. viii.

That as per clause 11 of the ,MoU,, the respondent was obligated to complete the construction of the said complex within 36 months from the date of execution of the agreement or from start of construction, whichever is later and apply for grant of occupancy/completion certificate.

Accordingly, the due date of Page 13 of 30 ffiHARERA &;;, P* GURUGRAM delivery of possession in the present case calculated from 01..1"7.2016, and the due date xii.

That as per the agreement so signed compietion of the said unit was subject to instant case comes out to be )l.i,l.Z}lg. ix.

That the respondent issued demand request/reminder to the complainants to clear the outstanding dues against the booked unit.

It is to be noted that the complainants miserabiy failed to comply the payment plan under which the unit was allotted to them and further on each and every occasion failed to remit the outstanding dues on time as and when demanded by the respondent.

The complainants as per the records of the respondent had only paid R;.Z6,3O,Z74/- against the total due amount of Rs .2g,75,05g /-.lt is to be noted that there is still an outstanding du e of Rs.L,g4,7g4/_which is to be paid by the complainants against the unit booked.

Further, against the above said amount paid by the complainants, the respondent had already paid Rs.2,90,2g0/- as assured return to the complainants. x.

That though the complainants may have cleared the basic sale price of the said commercial property, however, she is still liable to pay all other charges such as VAT, interest, registration charges, security deposit, duties, taxes, levies etc. as and when demanded. xi.

That the respondent is raising the VAT demands as per the government regulations.

It is pertinent to mention here that the respondent has not availed the amnesq/ scheme under Rule 49A of HVAT Rules, 2003, as evident from the list of builders as circulated by the Excise & Taxation Department Harvana. t Harvana. is 36 mohths to be of possesfion in the and acknowledged, the the midway hind rances which were beyond the contror of the respondent and in case the unit was delayed due to such construction of the said commercial Page 14 of 30 ffi HARER" Seunuenav 'force majeure' conditions, the respondent was entitled for extension of time period for completion.

It is to be notpd that the development and implementation of the said proiect have been hindered on account ofseveral orders/directions passed by various authorities/forums/courts which were beyond the lower and control of the respondent.

Due to the above reasons, thd proiect in question got delayed from its scheduled timeline.

However, the respondent is committed to compete the said proiect in all aspect at the earliest.

12.

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

Their authenticity is not in dispute.

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

E. furisdiction of the authority 13.

The respondent raised a preliminary submission/objection that the authority has no jurisdiction to entertain the present complaint.

The objection of the respondent regarding rejection of complainr on ground of jurisdiction stands re,ected.

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

E.

I Territorial iurisdiction 14.

As per notificarion no. .l /92 /2017 -1TCp dared L4.I2.2O17 issued by Town and country pranning Department, the jurisdiction of Rear Estate Regulatory Authority, Gurugram shalr be entire Gurugram District for all purpose with offices situated in Gurugram.

In the present case, the proiect in question is situated within the planning area of Gurugram District.

Therefore, this authority has complete territorial jurisdiction to deal with the present complaint.

Page 15 of 30 dffH ffie ARER.

URUGRAI,/ Complaint no. plaint no.50 of2q24 and 3 others E.

II Subiect matter iurisdiction 15.

Section 11[4](a) of the Act, 2016 provides that the piomoter shall be 76. responsible to the allottee as per agreement for sale.

Section 11(41(al is reproduced as hereunder: Section 11 1q1 fhe promoter snott- (o) be responsihle for all obligotions, responsibilities and functions under the provisions of this Act or the rules and regulcttions made thereunder or to the allottees as per the agreement for sole, or to the associotion ofollotrce;, os the cose moy be, ti the conveyonce ofallthe opartments, plots or buildings, as the cose may be, to the qllottees, or the common areqs to the associotion of allottees or the - competenL outhority, as the cose moy be; Section 34-Functions of the Authority: 3.aQ of Ln" Act provides to ensure complnnce ol the obligotions cost upon the promoters, the ollottees ond the reol estate ogents under this Act ond the rules and reg u I cttions mq d e th e re u nde r.

So, in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non_compliance of obligations by the promoter.

Findings on the obiections raised by the respondent.

F.

I.

Obiection regarding the complainants being investor.

The respondent has taken a stand that the complainants are investors and not an allottee/consumer.

Therefore, they are not entitled to the protection of the Act and are not entitled to file the complaint under Section 31 of the Act.

The Authority observes that any aggrieved person can file a complaint against the promoter if the promoter contravenes or violates any provisions of the Act or rules or regulations made thereunder.

Upon careful perusal of all the terms and conditions ofthe buyer,s agreement dated 01.11.2016, it is revealed that the complainants are buyers, and they have paid a total price of Rs.26,30,274/- to the promoter towards purchase of a unit in its pro,ect. s pro,ect.

At this stage, it is important to stress upon the definition of term alrottee under the Act, the same is reproduced below for ready reference: F.

77.

Page 16 of 30 ,/ 18. ffiHARERA #- eunuennnr Complaint no.50 of2024 and 3 others "2(d) "allottee" in relqtion to a reol estote project melns the person to whom a plot, opartment or building, os the cose mqy be, hqs been allotted, sold (whether o1 fteehotd or leasehold) or otherwise transferred by the promoter, oid includes the person who subsequenily acqiuires the soid allo.tment through sqle, transt'er or otierwire tut aoei nit include a person to whom such plot, opartmrrt o, Urilaiig, . as the case may be, is given on rent;,, ln view of above-mentioned definition of ,,allottee,, as well as all the terms and conditions of the agreement, it is crystal clear that the complainants are allottees as the subject unit was allotted to them by the promoter. t,urther, the concept of investor is not defined or referred in the Act.

Moreover, the Maharashtra Real Estate Appellate Tribunal in its order dated 29.01.2019 in appeal no.

0006000000010557 titled as M/s Srushti Sangam Developers PvL Ltd.

Vs.

Sarvapriya Leasing (p) Lts, And anr. has also held thar rhe concept of investor is not defined or referred in the Act.

In view of the above, the contention ofpromoter that the allottees being investor are not entitled to protection of this Act stands rejected.

II Obiection regarding the proiect being delayed because oIforce maieure circumstances.

The respondent/promoter has raised the contention that the construction of the project has been delayed due to force majeure circumstances such ban on construction due to orders passed by NGl., FlpCA, Courts/Tribunals/Authorities, Covid-19 etc.

First of all, the possession of the unit in question was to be offered by 0j,.11.2079.

Hence, events alleged by the respondent do not have any impact on the proiect being developed by the respondent. espondent.

Further, the orders passed by NGT banning construction in the NCR region was for a very short period of time and thus, cannot be said to impact the respondent-promoter leading to such a delay in the completion.

Moreover, some of the events mentioned above are of routine in nature happening annualry and the promoter is required to take the same into consideration while launching the project.

Thus, the promoter/respondent cannot be given any leniency on based of aforesaid 19.

PBge 17 of 30 ,/ Complaint no.

50 of 2024 and 3 others that a person cannot take benefit of c.

Findings on the relief sought by the complainants: G.

I Set aside the illegal demands of VAT made by the respondent vide letter dated 30.03 .2Ot7 and 22.OL.Z\ZO.

G.ll Direct the respondents to make payment towards assured return, G.ll Direct the respondent to pay deliy possession charges and execute conveyance deed in their favour.

20.

The respondent has contended that despite repeated reminders and request, the respondent has not received outstanding amount from the complainant till date.

Vide final notice/deemed cancellation letter dated 07 .06.2021, it was brought to the very knowledge of the complainants that there exist an outstanding due of Rs.Z,17,965/_ which was required to be paid within 15 days from the date offinal notice, failing which the unit shall be treated as cancelled from the next following day and the complainant shall be left with no lien, right, title, interest or claim of whatsoever nature in the said unit.

The complainants have submitted that the respondent demanded VAT from complainants on several times on the same unit despite the fact that the same was paid at the time of very first demand only.

The respondent raised the demand towards VAT amounting to Rs.1,13,438/- on 30.03.2017 and the same was paid by the complainant vide cheque no.

098222 for which receipt dated 18.05.2017 was issued by the respondent.

Later, the respondent vide letters dated 22.01. ted 22.01.2020 again raised demand of Rs.1,88,592/- on account of VAT without providing explanation for such demand.

On 30.10.2020 the respondent again sent illegal demands of Rs.Z,17 ,5L6/- towards the VAT.

Thereafter, the company sent final notice d ated OZ .06.2021raising illegal demands of dues and again no explanation was provided by the respondent.

Now the question before the Authority is whether the cancellation made by the respondent vide letter dated 07.06.2021is valid or not.

IT HARERA #, eunuennv reasons and it is well settled principle his own wrong.

Page 18 of 30 4/ ffi HARERI # eunuennnr 21.

On consideration ofdocuments available on record and submissions made by both the parties, the authority is of the view that on the basis of provisions of allotment, the complainants have paid an amount of Rs.26,30,27 4 /- against the basic sale consideration of Rs.22,68,750/_.

As per clause 11 ofthe MoU, the due date for handing over of possession was 01.11..201,9 whereas, the completion certificate for the project in question was obtained by the respondent on 14.0g.2024.

The respondent has contended that the complainants have failed to clear their outstanding dues, due to which their allotment was cancelled, However, in the instant case the complainants have already paid more than 1000/o of the basic sale consideration back in Novemb et 2016.

Further, as per record, the respondent vide payment request retter dated 30.03.2017 raised a demand of Rs.1,13,438/- towards VAT which was duly paid by rhe complainants and the same was duly acknowledged by the respondent vide receipt dated 18.05.2017.

Thereafter, on 22.01_.2020, a demand towards VAT was again raised by the respondent and non-payment, a finar notice dated 07 .06.2021 was issued by the respondent.

The authority is ofview that since the amount demanded by respondent towards VAT vide letter dated 30.03.2017 has already been paid by the comprainants, the further demand towards vAT on 22,01,2020 i.e. ,2020 i.e., after coming into force of the GST and without any justification cannot be held valid.

Thus, the final notice dated 07.06.2021, sent in continuation of the demand letter dated ZZ.Ol.ZO2O cannot be held valid in the eyes of law and is liable to be set aside.

Moreover, it is determined that vide final notice dated 07.06.202|, the respondent had called upon the complainants to pay outstanding dues on or before 2-1,06.2027.

Thus, the said letter cannot be treated as cancellation ietter.

In view ofthe above, the demand letter dated 22.O|.ZO20 as well as final noticc dated 07 .06.2027 is hereby set aside.

Page 19 of 30 Complaint no.50 of2024 and 3 others S HARER. #- eunuennv Assured Return: 22.

The complainants in the present complaint are seeking relief w.r.t payment of assured return as per the terms of the Mou dated 01.11.2016.

The complainants have submitted that as per clause 1g of the said Mou, it was agreed that the respondent would pay monthly assured return of Rs.35,035/- with effect from 01.11.2018.

Further, ir was also agreed vide clause 7 ofthe said MoU that the responsibility ofassured returns to be paid by the respondent would cease on notice of possession.

The complainants are seeking unpaid assured returns on monthly basis as per the MoU dated 01.11.2016 at the rates mentioned therein.

It is pleaded by the complainants that the respondent has not compried with the terms and conditions of the said MoU.

23.

The respondent has submitted that the complainants in the present complaint are claiming the reliefs on basis of the terms agreed under the MoU between the parties which is a distinct agreement than the buyer,s agreement and thus, the MoU is not covered under the provisions of the RERA Act, 2016.

Thus, the said complaint is not maintainable on this basjs that there exists no relationship of builder-allottee in terms of the MoU, by virtue of which the complainants are raising their grievance. grievance.

24 At this stage, it is important to stress upon the definition of term allottee under the Act, 2 016.

The definition of,,allottee,, as per section Z (d) of the Act of 2016 provides that an allottee includes a person to whom a plot, apartment or building has been allotted, sold or otherwise transferred by the promoter.

Section Z(dJ ofthe Act of 2016 has been reproduced for ready reference: 2(d) "ollottee" in relation to o reaIestate project, means the person to whom o plot, oportment or building, as the case may be, has been allotted, sotd [whether os freehold or leasehold) or otherwise transferred by the promoter, ond includes the person who subsequently acquirei the,iia ointriii tirougn sote, Page 20 of 30 Complaint no.

50 of2024 and 3 othe v * HARER.

S- eunuennv lransler or olherwise but does not include o person to whom such Dlot_ oportment or building, os the cose moy be, is given on rent;, Keeping in view the above-mentioned factslnd the deflnition of allottee as per Act of 2016, it can be said that the complainants are allottees.

25.

The MoU dated 01.11.2016 can be considered as an agreement for sale interpreting the definition of the agreement for ,,agreement Fbr sale,, under Section 2(cJ of the Act and broadly by taking into consideration the objects of the Act. 'l'herefore, the promoter and allottee would be bound by the obligations contained in the memorandum of understandings and the promoter shall be responsible for all obligations, responsibilities, and functions to the allottee as per the agreement for sale executed inter-se them under Section 11( )(aJ oFthe Act.

An agreement defines the rights and liabilities of both the parties i.e., promoter and the allottee and marks the start of new contractual relationship between them.

This contractual relationship gives rise to future agreements and transactions between them.

The "agreement for sale,, after coming into force of this Act (i.e.

Act (i.e., Act of 20161 shall be in the prescribed form as per rules but this Act of 2016 does not rewrite the "agreement,, entered between promoter and allottee prior to coming into force of the Act as held by the Hon,ble Bombay High Court in case Neelkamal Realtors Suburban private Limited and Anr. v/s llnion of India & Ors., [Wrt petition No.

2737 of 2017) decided o n 06.1.2.201,2.

26.

It is pleaded on behalf of respondent/promoter that after the Banning of Unregulated Deposit Schemes Act of ZOlg came into force, there is bar for payment of assured returns to an allottee.

But the plea advanced in this regard is devoid of merit.

Section 2(4) of the above mentioned Act defines the word ' deposit' as an amount of money received by way of an advonce or loan or in any other form, by any deposit taker with a promise to return whether after a specified period or otherwise, either in cash or in kind or in Complaint no.

50 of 2024 and 3 others Page 21 of 30 tr HARERA S-eunuennnr Complaint no.50 of2024 and 3 others 27. the form of o specified service, with or without any benefit in the form of interest, bonus, prortt or in any other t'orm, but cloes not include: (i) an qmount receivecl in the course of, or for the purpose of busness and bearing q genuine connection to such businesi initudinj (ii) advance received in connection with considerqtiin ot on immovqble properq4 under an ogreement or arrangement sub);ct tu the condition that such advance is odjusted ogaini such immovoble properly os specilied in terms of the agreement or orrongement.

A perusal of the above-mentioned definiiion of the terri ,deposit,, shows that it has been given the same meaning as assigned to it under the Companies Act, 2013 and the same provides under Section 2(31) includes any receipt by way ofdeposit or loan or in any other form by a company but does not include such categories of, amount as may be prescribed in consultation with the Reserve Bank of India. of India.

Simiiarly Rule 2(c) of the Companies (Acceptance of Deposits) Rules, 2014 defines the meaning ot deposit which includes any receipt of money by way of deposit or loan or in any other form by a company but does not include: {i) as on advonce, accounted for in any monner whotsoever, received tn aonneclion with considerotion ld on immovoble DroDerlv [ii) as an advance received ond os allowed by any secioroi regulator or in accordonce with directions of Central or Stote Government.

So, keeping in view the above-mentioned provisions of the Act of 2019 and the companies Act 2 013, it is to be seen as to whether an alottee is entitled to assured returns in a case where he has deposited substantial amount of sale consideration against the allotment of a unit with the promoter at thc time of booking or immediately thereafter and as agreed upon between them.

The Government of India enacted the Banning of Unregulated Deposit Schemes Act, 2019 to provide for a comprehensive mechanism to ban the unregulated deposit schemes, other than deposits taken in the ordinary course of business and to protect the interest of depositors and for matters connected therewith or incidental thereto as defined in Section Z (4) of the BUDS Act 2019.

29.

Page 22 of 30 ffiHA S- eun RERA UGRA[/ 30.

The money was taken uy,t" p.o.offir, 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 promoter promised certain amount by way of assured returns for a certain period.

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

31.

The Authoriry under this Act has been regulating the advances received under the project and its various other aspects. r aspects.

So, the amount paid by the complainants to the respondent is a regulated deposit accepted by the iatter from the former against the immovable property to be transferred to the allottee later on.

If the proiect in which the advance has been received by the developer from an allo the Act of 2016 then, ,n" ,t" 't an ongoing project as per Section 3(1) of ame would fall within the jurisdiction of the authority for giving the desired relief to the complainant besides initiating penal proceedings.

The promoter is liable to pay that amount as agreed upon.

Moreover, an agreement/MoU defines the builder_buyer relationship.

So, it can be said that the 2gpssrngnl for assured returns between the il:ffi :::.l,,ffi :;,,H::1j",",",",,on.nip and is marked bv 32.

In the present complaint, the assured return was and ciause 7 ofthe MoU dated 01.11.2016, which the ready reference: payable as per clause 1g is reproduced below for 17. .The Componv sholl oay o monrhly return of Rs.gS,O3S/- tRupees Thtrty Five Thousond and.Th.t.rty ,,"" or,it, ,r.iiJi""rlo', u.orn, deposited ti, sisnins ofthts Mou, with effectiir^ oli_1,1siirlr. *_,* ^ rox if Lo bc dcpositea sone snott te poi-iL;;;; ;;,;r",r;;;;;: B.

Tho-t the responsibitity of paying-assured-ririrri.,'{i,rl,o un ,0" Lompony shall ceose on Notice oj possessio;-,:. .." ," * p", 33.

Thus, the assured return 01.11.2018, tiII the notice of as payable @Rs 35,035/- per month w.e.[ possession is issued to the complainants.

Page 23 of 30 .,/ 34. ffi HARER" S^ eunrennHl Complainr no.

50 of 2024 and 3 others In light of the reasons mentioned above, the authority is of the view that as per the MoU dated 01,11.2016, it was obligation on part ofthe respondent to pay the assured return.

It ls necessary to mention here that the respondent has failed to fulfil its obligation as agreed inter se both thc parties in MoU dated 01,.1,1,.2016.

1,1,.2016.

Further, it is to be noted rhat the occupation/completion certificate for the project in question has already been obtained by the responden t on j.4.0g.2024, whereas the possession of the subiect unit has not been offered to the complainants till date.

Accordingly, the liability ofthe respondent to pay assured return as per Mou is still continuing.

Hence, the respondent/promoter is liable to pay assured return to the complainants at the agreed rate i.e., @Rs.35,035/_ per month from the date i.e., 01,11.201g till notice of possession is issued to the complainants as per the memorandum of understanding dated 01 .11.2016, after deducting the amount already paid on account ofassured return to the complainants.

Delay Possession Charges: In the present complaint, the complainants intend to continue with the pro,ect and are seeking deiay possession charges as provided under the proviso to section 1B(1J ofthe Act.

Sec.

1g(1) proviso reads as under. "Section 7B: - Return ofamount and compensation 1B(1). lf the promoter fails to complete or is unoble to oive posses\ton oJ on apon menr, plol, or building. _ 35. providecl that where on allottee does not intend to withdrow from the project, he sholl be paid, by the promoter, intercst for every month ofdelay, till the handing over of the possesston, ot-such rote 0s may be prescribed.,, 36.

Clause 11 of the MoU dated 01.11.2016 provides for handing over of possession and is reproduced below: _ 10. "Thqt the compony sholl complete the constuctton of the said building/complex within whrch the soid space is loca;ed within 36 months from the dote of execution of this ogreement or from the stort ofconstruction whichevir is loier ond apply for grant of completion/occupong/ certificote.

The compony on Page 24 ot 30 ffiHAREU, ffieunuennnr Complaint no.50 of2024 and 3 others grant of occupancy/completion certificate sholl issue linal letters to the allottee who sha within ,0 doys, thereof renit oll dues.

37. dues.

37.

Due date ofpossession: As per clause 11 0frhe Mou dated 01.11.2 016, the possession of the allotred unit was supposed to be offered within a stipulated timeframe of 36 months from the date of execution of that agreement or commencement of construction i.e., j,5.1_2.2015 (as per order dated 05.09.2019 in complaint bearing no.

CC/1_3ZB/ZOlg) whichever is later.

Therefore, the due date has been calculated as 3g months from the date execution of agreement, being later.

Thus, the due date of possession come out to be 01.11.2019.

38.

Admissibility of delay possession charges at prescribed rate of interest: The complainants are seeking delay possession charges at prescribed rate of interest. proviso to section 1g provides that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of possession, at such rate as may be prescribed and it has been prescribed under rule 15 ofthe rules.

Rule 15 has been reproduced as under: _ Rule 75. prescribed rate oI interest_ [proviso to section 12, section 78 and sub_section (4) and s;bsection (7) of section 1el (1) For the purpose of proviso to section 12; section 18; and sub_sections (4) ond (7) of section 19, the ,,tnterest ot the rate prescribecl, sholl be the Stote Bank of tndo highest morgtnolcost ol lending role +2a/o.: provided thot in cqse the Stote Bank of lndio marginal cost of lending rote (MCLR) 6 not in use, i shalt be riplaced by such benchmork lending rotes which the Stote Bonk oI lndio may Jix from time to time for lending to the general public, 39.

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

The rate of interest so determined by the Iegislature, is reasonable and if the said rule is followed to award the interest, it will ensure unitorm practice in all the cases.

Page 25 of 30 HARERA GURUGRAN/ 40.

UGRAN/ 40.

Consequently, as perwebsiteof ,n" Srr,ffi, the marginal cost of lending rate (in short, MCLR) as on dale i.e., 14.05.2025 is 9.L0v0.

Accordingly, the prescribed rate of interest wi be marginal cost of Iending rate +2 o/o i.e., 11.100/0.

41.

The definition of term ,interest, as defined under section Z(za) of the Act provides that the rate of interest chargeable from the allottees by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottees, in case of default.

The relevant section is reproduced below: .,(za) "interest" meo.ns the.rates of tnterest poyoble by the promolet or the allottee, as lhe case mav hp r"J--..

Explonolnn. _ For Lhe purpose oltniiiorr,"_ O the rate of interesi "r1r1iiiit" ir". rhe o ouee by the promoter. in -cose of default. shilt be equot ti ii" ,ot" o1 interest whit ,1"t ",, in,;:"?;d:;,:,;:ter shott be tiobte ro pay th; (i0 the ^interest poy;b.le. by the promoter to the olloetee sholl be from the d:,t,7 :!1 p,rororr, ,"lii,r"i-ri"'o;;"u.;; ,, ou port thereof till the doft the omount o, pori ti"uoS ora interest there.on-is refunded. ond ,n",rtii"ri.p"iAt" W the o ottee to the promoter shott t" fr"i-iti" iit" tn" alottee defoutts in payr"rt to tn, pii,|,oiri i,tiiri" o"* i, is Doi.l:" 42.

Therefore, interest on the delay payments from the complainants shall be charged at the prescribed rate i.e., 11.10%o by the respondent/promoter which is the same as is being granted to the complainants in case of delay possession charges.

43.

On consideration of documents available on record and submissions made by the complainants and the respondent, the authority is satisfied that the respondent is in contravention of the provisions of the Act. tsy virtue of clause 11 of the MoU dated 01.11.2016, the possession of the subject unjt was to be delivered by OI.I1.2019.The occupation/completion certificate of the project in question has been obtained by the respondent on 1,4.08.2024.

4.08.2024.

However, the respondent has failed to handover possession of Page 26 of 30 *HARER S- eunuennll 44. the subject shop/unit till date of this order.

Accordingly, it is the failure of the respondent/promoter to fulfil its obligations and responsibilities as per the agreement to hand over the possession within the stipulated period, The authority observes that now, the proposition before the Authority whether an allottee who is getting/entitled for assured return even after expiry of due date of possession, is entitled to both the assured return as well as delayed possession charges?

To answer the above proposition, it is worthwhile to considcr that the assured return is payable to the allottee on account of a provision in the BBA or in a MoU having reference ofthe BBA or an addendum to rhe BBA/MoU or allotment letter.

The rate at which assured return has been committed by the promoter is Rs.35,035/_ per month.

If we compare this assured return with delay possession charges payable under proviso to Section 18 (1) of the Real Estate (Regulation and Development ) Act,2076, the assured return is much better.

By way of assured return, the promoter has assured the allottees that they will be entitled for this specific amount from 01.11.2018 upto the notice ofpossession.

Accordingly, the interest of the allottees is protected even after the due date of possession is over.

The purpose of delay possession charges after due date of possession is served on payment of assured return after due date of possession as the same is to safeguard the interest ofthe allottees as their 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 delay possession charges whichever is higher.

45 Accordingly, the authority decides that in cases where assured return is reasonable and comparable with the delay possession charges under Section 18 and assured return is payable even after due date of possess of possession, the allottee shall be entitled to assured return or delayed possession Page 27 ot 30 ffiHARERA S* euRuennvr charges, whichever is higher including compensation. @ without preiudice to any other remedy 46.

In the present complaint, as per clause 1g read with clause 7 of the MoU dated 01.11,2016, the amount on account of assured return was payable from 01.11.201g upto the notice ofpossession, The occupation/completion certificate of the project in question has been obtained by the respondent on L4.0g.2024.

However, possession ofthe subiect unit has not been offered by the respondent till date.

Therefore, considering the facts of the present case, the respondent is directed to pay assured return to the complainants at the agreed rate i.e., @Rs.35,035/- per month from the date i.e., 01.11.201g till notice of possession is issued to the complainants as per the memorandum of understanding dated 01.11.2016, after deducting the amount already paid on accr 47 Further rh e comprainants,:: :::n:ffi j:T i:.T:J#:J#;,"." deed of the unit in question in their favour.

The Authority observes that as per Section 11(al[f) and Section 17[1) ofthe Act of 20L6, thepromoter is under an obligation to get the conveyance deed executed in favour of the complainants.

Whereas, as per Section 19(111 of the Act of 2016, the allottees are arso obligated to participate towards registration of the conveyance deed ofthe unit in question.

48.

The occupation/completion certificate has aiready been obtained by the respondent on I4.Og.2OZ4.

Thercfore, the respondent/promoter is directed to handover the possession ofthe unit to the complainants/allottee in terms of the MoU as well as buyer,s agreement executed between them on payment of outstanding dues if any, within 60 days.

The respondent is further directed to get the conveyance deed of the allotted unit executed in their favour in terms of Section 17[1) of the Act of Z016on payment of Page 28 of 30 ffiHARERA #- eunuennvt stamp dutyand p dutyand registration charges r, ffi the date ofthis order.

G.III Restrain the respondent from entering the lease deed with 3rd party till the completion of proiect *o ,,i"org - rrli"li' porr"..,o, ,o complainants.

49.

The complainants are seeking additional reliefs wr.t restraining the respondent from entering the ]ease deed with 3.d party till the completion of proiect and handing over of possession to comprainants. since, the occupation/completion certificate of the project in question has already been received by the respondent-promoter from the competent authority on 14.08.2024, the above said reiief become redundant.

H.

Directions ofthe authority 50.

Hence, the authority hereby passes this order and issue the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority under section 34[0: i.

The demand letter dated ZZ.O1,.2OZO as well as final notice dated 07.06.2021is hereby set aside. ii.

The respondent is directed to pay assured return to the complainants at the agreed rate per month From the date i.e., 01.1 1.2019 till notice of possession is issued to the complainants as per the memorandum of understanding dated 01.11.2016, after deducting the amount already paid on account of assured return to the complainants. iii.

The respondent is directed to pay the outstanding accrued assured :::'; il: :I i: : _# j[lT: :: ;ilH: : : ::,,,.#:T the complainants and failing which that amount would be payable with interest @9.10%o p.a. tiil the date ofactual realization.

Page 29 or 30 ffHARERT S- eunuennu iv.

The respondent is directed to h"nair* p***i* the unit to the complainants in terms of the MoU as well as bu executed between them, on payment of outstandi and failing which Iegal 's agreement dues if any, nsequences within 60 days. n 60 days.

The respondent is further di to get the conveyance deed of the allotted unit executed in eir favour in terms ofSection 17(11 ofthe Act of 2016 on payment stamp duty and registration charges as applicable within three s from the date of this order.

The respondent shall not charge anythlng from the mplainants which is not the part of th( BBA/MoU dared 01.11.201 vl.

A period of 90 days is gi n to the respondent to co ply wirh the directions given in this would follow_ 51.

This decision shall mutatis m this order.

52.

The complaints stand disposed 53.

Files be consigned to registry. ndis apply to cases mentioned in para 3 ol Haryana Real Regulddory Auth ority, Gurugram :74.05.2025 Paga 30 of 30 Complaint no.

50 of 4 and 3 others