USHA MOHAN vs NEO DEVELOPERS PVT.LTD.

HARERA GURUGRAI/ BEFORE Complaint No.

77 69 of 2022 1.

THE HARYANA REAI ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no.

77 69 of 2022 Date of filing 22.t2.2022 Order Reserve On o5.o1.2024 Order Pronounced On: 22.03.2024 Respondent CORAM: Ugq!_er.

ORDER The present complaint has been filed by the complainant/allottee under section 31 of the Real Estate (Regulation and Development] Act, 2016 (in short, the ActJ read with rule Zg ofthe Haryana Real Estate (Regulation and Development) Rules, 2017 (in short, the Rules) For violation of section 11(4) (a) of the Act wherein it is inrer a/ra prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provisions ofthe Act or the Rures and regurations made there under or to the allottees as per the agreement for sale executed inrer se.

Unit and proiect related details Page 1of20 A.

Usha Mohan R/o: D-12, Pushpan.iali, Bi,wasan, New Delhi-110061 Complainant M/s Neo Developers pvt.

Ltd.

Office: 32-8, Pusa Road, New Delhi-110005.

Shri Sanjeev Kumar Arora APPEARANCE: Shri Harshit coval Complainant Shri Gunian Kumar ResDondent ffi,& Versus 2.

HARERA ffiGUllUGl?AM Complaint No.

7769 of 2022 The particulars of unit details, sale consideration, the amount paid by the complainant, date of proposed handing over the possession' delay period' if any, have been detailed in the following tabular form: Page? ofzo S.n 1.

2.t 4.

Particulars Details Name of the project "Neo Square", Sector-109, Gurgaon Nature of the proiect Commercial ComPIex DTCP License no.

102 0f 2008 dated 15.05.2008 valid upto 14.05.2024 RERA registered/not registered Registered vide registration no.

109 of 2017 dated 24.08.2077 22.02.2022 01..72.2012 [page no.

15 ofcomPlaint] Validity status 5.

Date of M0U 6.

Unit No.

7 04 , 7 th floor [page no.

16 of comPlaint] 7.

Area admeasuring 1000 sq. ft. [page no.

16 of comPlaint] 8.

Assured return clause 1. clause 1.

That the ComPanY herebY has agreed to ollot to the Allottee(s) premises measuring 1000 sq. lt (92.90 Sq.

Mtr.) suqer builtuP orea on the Seventh floor of Tower oJ the said Proiect The Allottee(s) hos opted lor the 'lnvestment Return Plon' and has agreed that the basic consideration for allotment of the Premises is to be determined at Rs.4500/- Per sq ft' toki.\L!\to 99!s-!491:.9!i9! q rglur! -l- B. ffiHARERA Seunuennrr,r Complaint No.

77G9 of 2022 Rs.55,64,520/- [As per statement ofaccount on page no.52 ofreplyl.

05.'11.2020 (page no.

53 ofreply) Rs.63,76,498/- (As per statement ofaccount on page no.

52 ofreply) Rs.45,00,000/- (As per MOU on page no.20 of complaintJ Rs.

49 ,87 ,527 / - (As per statement ofaccount on page no.

52 ofreply) Facts ofthe complaint The complainant has made the following submissions: That the memorandum of understanding agreement was duly executed between the allottee and the respondent on O.l.l2.ZO12in respect ofbooked unit no 704, 12th Floor in real estate project namely Neo Square.

That as per clause 3 of MOU agreement dated Ol.lZ.ZOlZ, the respondent company was liable to pay assured return amount of Rs 71.34/_ per sq ft per month till the date of execution of first Lease of the booked unit.

The respondent company has failed to pay any assured return amount from March 2019 till date to the complainant.

J.

4.

5.

Page 3 of 20 o1ns.

Zl.S+y- periqfu per nitn, subiect to the terms ofthis MOU.

Assured return paid by the respondent to complainant Final reminder letter Total sale consideration Total amount paid by the complainant Occupation certificate Offer ofpossession 9.

10, 11.

72.

13, 14. ffi HARERA ffi eunuenavr 6.

That the respondent company was also liable to deliver possession of the booked unit within a period of 36 months from the date of execution of agreement.

Therefore, the due date of clelivery of possession was 0L.L2.201,5. .L2.201,5.

However, the respondent has failed to offer lawful and Iegal possession of the booked unit along with occupation certificate to the complainant till date.

7.

That the demand letter dated 29.06.2022 demanding Rs 14,12,774/_ ftom the complainant is unlawful and unjustified as the complainant has already paid total sale consideration to the respondent company.

The respondent company has also intentionaly failed to attach statement of accounts with the said demand letter.

That the complainant has already paid total sale consideration in respect of booked unit as and when demanded by the respondent company.

That the complainant had invested his hard-earned money in the booking of the unit in the project in question on the basis of false promises made by the respondent at in order to allure the complainant.

However, the respondent has failed to abide all the obligations of him stated orally and under the builder buyer agreement duly executed betwcen 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 2g of Haryana Real Estate (Regulation and Deveropmentl Rures, 20r7 to seek redressal of the grievances against the respondent company.

Relief sought by the complainant: 9.

8.

10.

C.

11.

The complainant has sought following rclief(s). l.

3I:.j ",1: responrl-ent to pay pending monthly assured ::. / L.!4/- per sq. ft (Rs 71,340 per month) acciued from 2019 along with interest to the complainant. return of the March PaEe 4 of 20 Complaint No.

I 7 69 of 2022 MHARERA S-eunuennlir Direct the respondent to nav delaycd posscssion charges from due date :,t^1.1:::.y^rlry:session'oi 01.

I i.2o i s tirr a"t" ,i "ft". oiiolr..rion along with occupation certificate of booked unit.

Direct the respondent to executc ilnd rcgister the conveyance deed of the booked unit.

D.

Reply by the Respondent: 12. ndent: 12.

Thatthe complainant with the intentto invest in the real estate sector as an investor, approached the respondent and inquired about the proiect i.e., "Neo Square,,, situated at sector_109, Curugram, Haryana being developed by the respondent.

The complainant apply by submitting a booking application form dated 70.OS.ZO12, whereby seeking allotment of priority no.

704, admeasuring 1000 sq. ft. super area on the 7rh floor restaurant/food court space of the project having a basic sale price of Rs.

45,00,000/- 13.

That since the complainant had opted for the investment return plan, a memorandum of understanding dated 07.12.20L2 was executed between the parties, which was a completely separate understanding between the parties in regards to the payment of assured returns in lieu of investment made by the complainant in the said proiect and leasing of the unit/space thereoi 14.

That as per the mutually agreed ternts between the complainant and the respondent, the basic sale price of the unit was determined taking into consideration that there will be a return at the rate of Rs.71.34/_ per sq. ft. per month.

Meaning thereby, the return wi onry be tiu the amount equivalent to the basic sale price of the unit.

As per clause 9 of the MOU, the complainant herein had duly authorised the respondent to put the said unit on lease.

15.

That the MOU executed between thc parties was in the form of an "lnvestment AgreemenL,, The complainant hacl approached the respondent as an investor looking for certain investmclrt opportunities.

Therefore, the Page 5 of 20 11. lIl. ffiHARERA ffi eunue nr,,r allotment of the said unit contained a ,,lease clause,, which empowers the developer to put a unit of complainant along with the other commercial space unit on lease and does not have possession clauses, for handing over the physical possession.

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

16. exist.

16.

That a draft buyer's agreement was sent to the comprainant to be executed between the complainant and the respondcnt for the unit allotted in the project.

The complainant, even after duly receiving the BBA from the respondent, never came forward to execute the same despite reminder from the respondent.

17.

That post allotment of the unit to the complainant and after receiving huge amount ofassured returns i.e., Rs.

55,64,520/_ fromthe respondent, against the basic sale consideration amout]t ol Rs.

45,00,000/- the complainant deliberately and intentionally choosc to default in clearing the outstanding dues towards EDC/IDC, Taxes, VAT and interest thereon.

The complainant failed to clear the demands towards IiDC/lDC, Taxes, VAT and interest thereon as per payment request dated 22.Ot.ZO2O against which reminder were also issued by the respondent vide reminder letter dated 30.10.2020.

18.

That respondent was constrained to issue final reminder letter dated 05.11.2020, wherein the respondent provided one last and final opportunity to pay and clear allthe arrears of instalments within 10 days i.e., on or before 75.71.2020 and in case of failure antl or neglect to pay and clear thc instalment amount within the above mcntioned time, respondent shall constrained to cancel and terminate the allotment of the unit.

Accordingly, due to the failure of the respondent to pay on time resulted in canceration of the unit vide final reminder letter dated 05.11.2020.

19.

That the respondent has already fulfilled its obligations of payment of assured returns i.e., Rs.

55,64,520/- from the respondent, against the basic PaEe 6 of20 HARERA GUI?UGRAM sale consideration amount of Rs.

45,00,000/_ as per the mutually agreed terms of the MOU.

As per the mutually agreed terms between the complalnant and the respondent, the basic sale price of the unit was determined taking into consideration that there will be a return at the rate of Rs.77.34/- per sq.ft per month. per month.

Meaning thereby, the return will only be till the amount equivalent to the basic salc price ofthe unit.

Therefore, as per the agreed terms the assured return obligatjon ofthe respondent is over and no further assured return is payable by the respondent to the complainant.

20.

That without pre,udice or admitting any allcgation levied by the respondent, after the coming into force of the Banning of tJnregulated Deposits Schemes {ct,2079 [ hereinafter referred to as,,BUDS Act,l in 2019 the respondent was constrained to cease all payment pertaining to assured return to all its allottees who had opted for the same from 2019.

21.

That as the complainant in the present complaint is seeking the reiief of assured return, it is pertinent to mention herein that the relief of assured return is not maintainable beforc thc Ld.

ALrthority upon enactment of the BUDS Act.

That any direction for paynrcnt of assured return shal be tantamount to violation of the provisions of thc BUDS Act.

22.

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

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of those undisputed documents and submissions orar as welr as wrirten (filed by the complainant) made by the parties.

E. furisdiction ofthe authority 23, The authority observes that it has territorial as well as subject matter jurisdiction to adludicate the prcsertr complaint for the reasons given below.

E.

I Territorial iurisdiction 24.

As per notification no. l /92 /ZT\Z _l.t.Cp dared j,4.72.2077 issued by Town and Country Planning Department, Haryana, the jurisdiction of Haryana Real Page 7 of 20 Complaint No.

7769 of 2022 ffiHARERA S- eunG-nnH,r Complaint No.

77 69 of 2022 Estate Regulatory Authority, Gurugram shall be entire Gurugram district for all purposes.

In the present case, thc project in question is situated within the planning area of Gurugram district. .l. trict. .l.herefore, this authority has complete territorial jurisdiction to dcal with the present complaint.

II Subiect-matter lurisdiction 25.

Sedion 11(4J(a) of the Acr, 2016 responsible to the allottees as per reproduced as hereunder: Section 11 (4) The promoter shalt_ (a) be responsible for a-ll .obligotions, responsibilities and Junctions under the provisions of thir Act or the nl", ora iigitorion, ^oa" thereunder or to the.allottecs as per Lhc ogr""^o-it-yi, ,ot", o, to the ossociotion of oltottees, as the case mo; ii, ,i'tiiJ rorr"yonr" of a the apartments, ptots or buildings, ,i tni iir" ^i) U, t, tn" ollottees, or the common areas Lo the issociation olalt;uees or the competent outhority, os the case may be; Section 34-Functions oI the Authority: 344 of the Act provides to. ensure complionce of the obtigotions cast upon the promoters, the allottees ond the rial estate agents under this Act and the rules and regulatior, .rai ln"riina"r.

26.

So, in view of the provisions of thc Act quotcd above, the authority has complete iurisdiction to decidc thc colnplaint regarding non-compliance of obligations by the promoter reaving asidc compensation which is to be decided by the adjudicating officer if pursucd by the complainant at a later stage.

F, Findings on the reliefsought by the complainant. i.

Direct the respondent to pay pending monthly assured return of Rs.

71.34/- per sq. ft (Rs 7I,34O per month) accrued from the March 2019 along with interest to the complainant.

Page 8 of 20 provides that the promoter shall be agreement for sale.

Section 11(4)(a) is HARERA GURUGRAM Direct the respondent to pay delayed possession charges from due date of delivery of possession of }l.lZ.ZOfS fill date of offer of possession along with occupation certificate ofbooked unit.

27.

Al'1 the above-mentioned reliefs are interrelated accordingly, the same are being taken up together for adjudication. udication.

Thc complainant has sought delay possession charges and has also sought assurcd returns on monthly basis as per clause 3 of the MOU dated 01,.12.20t2.

28.

The complainant booked a unit in the project of respondent and the MoU was executed on 0L.1,2.201,2.

The total sale consideration of the unit is Rs.

45,00,000/- out of which rhe complainant has made a payment of payment of Rs.

49,97 ,S2Z /--. .l,he complainant in the present complaint seeks relief for the pending assured return as well as DpC.

The plea of the respondent is otherwise and stated that the respondent cancelled the allotted unit ofthe complainant vide flnal rcminder letter dated 0S.11.2020.

29.

Now the question before the authority is whether the cancellation issued vide reminder letter dated 05.11.202 0 is valid or not.

30.

The authority observes that the complainant has paid an amount of Rs.

49,87,527 /_ out of toral sale considerarjon of Rs.

45,00,000/_.

The respondent has issued a reminder lettcr dated OS.7l.ZO20fbr the payment of EDC/IDC charges and as per that letter they have provided one last and final opportunity to pay and cicar aI arrears of instarments within 10 days i.e., on or before 15.11.2020. t,he said reminder letter dared 05.11.2020 is reproduced hereunder for ready referencc: By the woy of this t-inol lleminder LeLter, rhe compony hereby gives you one lost and frnol opportuniLy to poy and cteor all the arreors of instalment within 10 days i.e., on or before Nov 75 2020.

31.

The authority is ofthe view that the cancellation vide reminder letter dated 05.11.2020 is not valid as the complainant has already paid more than 100% lt.

Paee 9 of 20 Complaint No.

7769 of2022 GURUGRAI/ of the total sale consideration. t\,loreovcr, thc respondent has only issued a reminder letter dated OS.1_7.ZO2O which clearly provides time period to make payments within 10 days.

I{ence, the letter dated 05.11.2020 cannot be treated as valid.

Assured Return 32.

Return 32.

It is pleaded that the respondents has not complied with the terms and conditions of the agreement. 'fhough for somc time, the amount of assured returns was paid but later oI, the rcspondcnt refused to pay the same by taking a plea of the Banning of unregurated Deposit schemes Act, zo79 (herein after referred to as the Act of ZO19).llut that Act does not create a bar for payment ofassured returns evcn after coming into operation and the payments made in this regard are protected as per section Z(4)(iiil of the above-mentioned Act.

However, the plea of respondent is otherwise and who took a stand that though it paid thc amount of assured returns and did not paid after coming into force of the Act of 2019 as it was declared illegal.

33.

The Act of 2016 defines ,,agreement for salc,, means an agreement entered into between the promoter and the allottee fsection 2(c)].

An agreement lor sale is defined as an arrangement cntered between the promoter and allottee with freewill and consent ofboth the parties.

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

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

The different kinds of payment plans were in vogue and legal within the meaning ofthe agrccment lor sale.

One ofthe integral part ofthis agreement is the transactiorr of assurcd rcturn inter-se parties. .l_he "agreement for sale,,after coming into force of this Act (i.e., Act of 2016] shall be in the prescribed form as pcr rules but this nct of 2016 does not rewrite the "agreement', entered between promoter and allottee prior to coming into Page 10 of 20 HARERA I Cotl],plaint N o.

7 7 69 of 20 22 HARERA M, GURUGRAM Complaint No.

ZZ 69 of 2022 force ofthe Act as held by the IIon,ble Bombay I Iigh Court in case /Veelkamol Realtors Suburban privote Limited and Anr. d and Anr. v/s llnion of India & Ors,, (Writ Petition No.

2737 oI 2017) decided on 06.72.2017.

Since rhe agreement defines the buyer-promoter relationship therefore, it can be said that the agreement for assured returns between the promoter and allottee arises out of the same relationship.

Therefore, it can be said that the real estate reguratory authority has comprete jurisdiction to dear with assured return cases as the contractual relationship arise out of agreement for sale only and between the same parties as per thc provisions ofsection 11(4)(aJ of the Act of 2016 which provides that the promoter would be responsible for all the obligations under thc Act as per the agreement for sale till the execution of conveyance deed ofthe unit in favour of the allottee.

Now, three issues arise for consideration as to: i.

Whether the authority is within its jurisdiction to vary its earlier stand regarding assured returns due to changed facts and circumstances. ii whether the authority is competent to aliow assured returns to the allottee in pre-RERA cases, after the Act of 2 016 came into operation, iii. whether the Act of 2019 bars payment ofassured returns to the alrottee in pre-RERA cases 34.

While taking up the cases ol Brhimjeet & Anr.

Vs.

M/s Landmark Aportments pvt. f,td. (complaint no 141 of 2018), an d Sh, Bharam Singh & Anr.

Venetain LDF projects LLp,,(supra), it was held by the authority that it has no jurisdiction to deal with cases of assured returns.

Though in those cases, the issue of assured returns was involved to be paid by the builder to an allottee but at that time, neither the full facts were brought before the authority nor it was argued on behalf of the allottees that on the basis of contractual obligations, thc builder is obligated to pay that amount.

However, there is no bar to tal(e a different view from the earlier one if new Page 11 of 20 ffiHARERA SeunuennH,r facts and law have been brought before an adjudicating authority or the court. the court.

There is a doctrine of,,prospective overruling,, and which provides that the law declared by the court appljes to the cases arising in future only and its applicability to the cascs wh ich have attained finality is saved because the repeal would otherwise work harclship to those who had trusted to its existence.

A reference in this regard can be made to the case of Sarwan Kumar & Anr Vs, Madan Lal Aggarwal Appeat (civil) 1058 of 2003 decided on 06.02.2003 and wherein the hon,ble apex court observed as mentioned above.

So, now the plea raised with regard to maintainability of the complaint in the face of earlier orders of the authority in not tenable.

The authority can take a different view from the earlier one on the basis of new facts and law and the pronouncements made by the apex court ofthe land.

It is now well settled preposition oflaw that when payment ofassured returns is part and parcel of builder bLrycr,s agrecmcrlt (maybe there is a clause in that document or by way of addendum, memorandum of understanding or terms and conditions of the allotment of a unitJ, then the builder is liable to pay that amount as agreed upon and can't take a prea that it is not liabre to pay the amount of assured return.

Moreover, an agreement for sale defines the builder-buyer relationship.

So, it can be said that the agreement for assured returns between the promoter and an a otee arises out of the same relationship and is marked by the originar agreement for sare.

Therefore, it can be said that the authorjty has complete jurisdiction with respect to assured return cases as thc contractual relationship arises out of the agreement for sale only and bctween the same contracting parties to agreement for sale. [n the casc in hand, the issue ofassured returns is on the basis of contractual obligations arising between the parties.

Then in case of Pioneer Urbon Land and Infrastructure Limited &Anr. v/s llnion of lndia &ors' (writ Perition (civ l No.

4:.i or20r9. .i or20r9.) decided on 09.0g.2019, it was Page 12 of 20 Complaint No.77 69 of 2022 HARERA MGURUGRAI/ Complaint No.

7 7 69 of 2022 observed by the Hon,blc Apex Court of thc land that ,,...allottees who had entered into ',assured return/com tnittcd returns, agreements with these developers, whereby, upon payment of a substantiar portion ofthe totar sale consideration upfront at the tiine of execution of agreement, the developer undertook to pay a certain amount to allottees on a monthry basis from the date of execution of agrcement tiil the date of handing over of possession to the allottees,,.

It was further held that,amounts raised by developers under assured return schemes had thc ,,cor.nntercial effect of a borrowing, which became clear from thc developer,s annual rcturns in which the amount raised was shown as ,,com mitrnent charges,, u nder the head ,,financial costs,,.

As a result, such allottccs werc held to be,,financial creditors,, within the meaning of section 5(71 of the code" incruding its treatment in books of accounts of the promoter and for the purposes of income tax.

Then, in the latest pronouncement on this aspect in case laypee Kensington Boulevard Apartments Welfare Association and Ors, vs, NBCC (lndia) Ltd, and Ors. {2a'03.202l-sC): MANU/ sc/0206 /2021,, thc same view was folowed as taken earlier in the casc of pionccr Urban Land Infrastructure Ld & Anr. with regard to the allottees ofassured rcturns to bc financial creditors within the meaning of section 5(7) of the code.

Then after coming into force the Act of 2016 w.e.f 01.05.2077 , the builder is obligated to register the project with the authority being an ongoing project as per proviso to section 3[1) of the Act of 2e77 read with rule 2(ol of the Itules, 2Oi_7.

TheAct of 2016 has no provision for re-writing of contractual obligations between the parties as hefd by the Hon'bre l)ombay lligh court in case Neerkamat Reartors Suburban private Limited ond Anr. v/s Union of India & ors. dia & ors., (supral as quoted earlier.

35.

So, the respondent/b u ildcr can,t take a plea that there was no contractual obligation to pay the antount of assurecl rcturns to the allottee after the Act Page 13 of 20 HARERA GURUGRAN/ Complaint No.7769 of 2022 of 2016 came into force or tl.r;tt a new agrcement is being executed with regard to that fact.

Whcn therc is an obligation of the promoter against an allottee to pay the amoultt of assured returns, then he can,t wriggle out from that situation by taking a prea,ithc enforcemcnt ofAct of2016, BUDS Act 2019 or any other law.

36.

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

Ilut again, the plea taken in this regard is devoid of merit.

Section 2(4) of the above mentioned Act defines the word ' deposit' as on omount of money received by way oJ.an advance or loan or in any other lorn, by any deposit toker with a promise to return whether after a specifietr period or otherwise, cither in cash or in kind or in the form of a specified scrvicc, wif,h or without any benefit in the form of interest bonus, profit or in any other form, but does not include an amount received in the course of, or for the purpose of, business ond bearing o genuine connection to such Lustness including- advance reccivetl in connection with consideration of an immovoble property under an ogreement o, orrong"a"r, subject to the condition Lhot such idvonce is adjustedZgainst such immovohle property as specif;ed in terms olthe agriment or arrongement.

37.

A perusal ofthe above-ntentioned definition oFthe term ,deposit, shows that it has been given the sanlc mcaning as assigned to it under the Companies Act,2013 and the samc providcs under section 2 (31J includes any receipt by way of deposit or loan or in any othcr fornr by a company but does not include such categories of amount as may be prescribed in consul in consultation with the Reserve Bank oflnriia.

Similarly rule 2[c) ofthe Companies (Acceptance of Deposits) Rules, 201 I defines the meaning of deposit which includes any receipt of money by wa,\, of deposit or loan or in any other form by a company but does not include.

Page 74 of20 ffiIIARERA ffieunuenavr,-_------l- os o odvon.

I Compldint No.776g ol20zz1 ;"":;:""'&' "': " :"i'; :: :':l' {"';'':''::{' il ;::fr ::::;;'- as on adva a ;n,,; ;; ;i :,,, :: ::;il, ", l!, 0,i,,!!!{i! "jr[" : :!,, ::: tr?:i: rd.

50, keeping in yiew thc.. the companies Ac, rr, rl'L:,",",:1JI"i:J; ;:T:::ffi il::::H: to assured returns in .l c sare consideration,*",,,:;"1,',,:L:;:;i;il;T i:rilI ;,T*T ofbooking or immediatcry thercafter and as agrced upon between them.

39.

The Government of lrrrl schemes Act,, o r, .,,.:i, ;:i::: .HI ::::,:::il::;,:: ffff : unregulated deposit sChc course ofbusiness and to other than deposits taken in the ordinary connected therewith o,. ,nO.o,"a, ,na ,nterest of depositors and for matters BUDS Act 2019 ,"r,," ,"rtrl"rill thereto as defined in secrion 2 (4r of the 40.

It is evident from thc L.crusal of section 2(4)(i)(ii) of the above-mentioned Act that the advanccs rer immovable property ,,,,."tt'uu' in connection with consideration of an condition that such ad v a ncr an agreement or arrangement subiect to the as specified in t".., of th" t e adjusted against such immovable property term ofdeposit, wn,.n n"r"utt""'"nt or arrangement do not fall within the 41.

Moreover, the develop.r .. been banned by the Act of2019. doctrine, the view is that ifa bound by promissory estoppel.

As per this has acted on such nr":l:tt^ln^.made a promise and the promisee person/promisor is b,rLrnd mtse and altered his position' then the bullders faiied to hon.':rr,ril"::'lIL- tt his or her promise when the by the creditors at diffcrent commitmcnts' a number of cases were filed Land and Infrastructttrer, 'otu't such as Nikhil Mehta' Pioneer ltrban enact the Banning or r/ ,reg,: r/ ,reg,:',l ffi:::';r:::ilHii::#;i; Page 15 of20 GURUGRAM HARERA Complaint No.77 69 of 2022 in pursuant to the Ban n ir)g of tJnrcgulatcd Deposit Scheme Ordinance, 2018.

However, the moot qr0stion to be crccicred is as to whether the schemes floated earlier by the bLr ildcrs ancl promising as assured returns on the basis of allotment ofunits aro r:overcd by tlre abovementioned Act or not.

A similar issue for consideration arose before Hon,ble RIll{A panchkula in case galdey Gautam vs Rise projects private Limited (RERA.\KL_2068-207I) where in it was held on 71.03.2020 that a builder is liable to pay monthly assured returns to the complairrants till possession of respective apartments stands handed over and therr: is no illegality in this regard.

42.

The definition ofterm ,doposit, ;ts given in the UTJDS Act 2019, has the same meaning as assigned to it undcr thc Companies Act 2013, as per section 2ta)(iv)(il i.e, explanarion to sub-clause (iv).

In pursuanr to powers conferred by clause 3 1 o[ section 2, section 73 and 7 6 read with sub-section 1 and 2 of section 469 of rhe Companies Act 2013, the Rules with regard to acceptance ofdeposits by the companies were framed in the year 2014 and the same came into forcc, on 01.04.2014.

The definition ofdeposit has been given under section 2 [c) oFthe above_mentioned Rules and as per clause xii (b), as advance, accurrltcd for in any manner whatsoever received in connection with consi(lcration for an immovable property under an agreement or arrangcrn(:nt, provided such advance is adiusted against such property in accordancc with the terms of agreement or arrangement shall not be a deposit.

Though therc is proviso to this provision as well as to the amounts received unLlcr heading ,a, and ,d, and the amount becoming refundable with or witlrout interest due to the reasons that the company accepting the money (locs not have necessary permission or approval whenever required to clcal in the goods or properties or services for wh ces for which the money is taken, th orl I he amount receivecl shall be deemed to be a deposit under these rules.

Hou,r,vcr, lhc sanlc are Dot applicable in the case in hand.

Page 16 of 20 *HARERA ffi eunuennrrl Though it is contended that there is no necessary permission or approval to take the sale considcration as advance and would be considered as deposit 43. as per sub-clause Z(xv)(bJ but rhe plea advanced in this regard is devoid of merit.

First of all, tlrL.r,r is exclusion ciause to section 2 (xiv)(b) which provides that unless .;pccificalJy cxcluded undcr this clause.

Earlier, the deposits received by tlte companjes or thc builders as advance were considered as deposits h!tt w.e.l 2 9.06.201 6, it was provided that the money received as such woukl not be deposit unless specifically excluded under this clause.

A reference ir) this regard may be given to crause z of the First schedule of Regulatccl l)cposit Schemes framed under section 2 (xv] of the Act of 2019 which provirics as uncler:_ (2) The following shall also be treated as Regulatcd Deposit Schemes under this Act namely:- (a) deposits acccl)tcd undcr any scheme, or an arrangement registered with any regulatory body in India constituted or established under a statute; and (bJ any other schctre as may be notified by the Central Government under this Act.

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

However, in vjoir oftaki buirder promised ..,,,,, ".,"r::'01'ff :: "r,:.JJ::fl:iil::::; period.

So, on his failurc to fulfil that commitment, the allottee has a right to approach the authorjt-v for rcdrcssal of his gricvances by way of filing a complaint.

The authority under this Act has been regulating the advances received under the pro,ect and its varjous other aspects.

So, the amount paid by the 44. by the 44.

Page 17 of ZO ffiHARERA # eunuennrur complainant to the builrlcr is a reprlern,l ^^^^",, ^^:- -l-"=_- I ll: j.:r.:-,:.,r,t tt c,r n ova utef f ff lffi : .*:[l.]J jl,j5::; later on.

If the projcr:L in which the advance has been .".";;;;;" developer from an allo cc is ax Act or2016 then,,r,. ..,,,,0 *ourl ?iiffi ,il:;:1.fi:,:::il:::#T for giving the desircti r.clief to the complainant besides initiating penal proceedings.

45.

Itisamatterof factth.rr rhc occupatiolr certificatc for the unit has not been received.

The relevant .l.rusc 3 of the MOU dated 01.12.2012 is reproduced hereunder for ready rt,lcrencc: '#il, j:.",t"""Tx;lJ, iill; ll i-':^ :ry:p-rr to ar rol to the Arrottee(s) ir," s*"n,r, n"#oiir,.,,,.t| ll.('g?l!so Mtr') super built up area on ror the'lnvesimeni,i,.,,.::'l:t'id Ptglect TheAllottee(sJ has opted ton'ia"."tion io. uil;, ;ii";:l.111'" and has aerecd that'the basic +sooz' p"" 'q.'ii il;],;;;"t::.|:::j^ses is to be derermined at Rs. .q. n. pu. ron,r,, -r,,j, ii ;l;:',"il:Tf[n a r€rurn or.Rs 77.34/- per 46 The authority is oftrrc i icw that as per ciause 3 0fthe Mou dated 01.12.2012 the respondent/ devci,rpcr are liablc to pay arrears of assured returns till leasing of the unit.

Delay possession charges.

47. ln the present compl;ri,t, the complainant intends to continue with the project and is seeking possession of the subject unit and delay possession charges as provided rrnclcr worthwhile to consid(,r ,n-tn" o''nu'r'onr of section 1g(1r of the Act.

It is I thc there is no possession clause in the MOU executed between thr D.trties cxecuted on 01.12.2012.

Moreover the said MOU is a leasing arl.ecment and the relcvant clause is reproduced hereunder: I!::'!: ,' " tiet ollct tomttretton shLtl b,, honded over to the prospecttw . ,,ce subiec! to exet.utton ol the Le"r"i*a. ri"LiiiZ Page 18 of 20 I--=--- I C.omplaintNo.TT69 of 2022 48. ffiHARERA s'eunuennrul et. ,,atthc L".,,,''^@ ;m:*;r ;*,,,1i rt 1' : ; ffis'**'. ffis'**'.X * ffi ,ililIjf j[*:, #:T:,1#:Jt " ffi ;i: Hence, the author,, o ,l"lar'*" r' tontravention of the provisions ofthe Act. from the date ,t" ,rr,, "rl'", ,.'espondent/promoter to pay assured return the said unit. sured return has not been paid till lease of 'li?ilTljliJi,"Xil(rcnt to execute and resrster th 49. section 17 (11 ofthc A. rro,r. -,il,. , . -,l '""-*' rne conveyance deed deed executed ano ,,,,, ,t o"''r with duty of promoter to ame is reproduced beiow: get the conveyance ,, 12.

Tft ut.;/ er of title.- (1).

The pro '*,rrliflfii'rywi7ilir;t:r;i{ii ry;,,;ll,i::"i:",;"",^;;;;:;';#l:?:ill;;,1;,::,J: associott(,i) of tlrc o ttoit;;:":: :,t tu _LIte common oreas b the 'o'ri'rlli,,,'r; i, , i"i).",1-i'-'"-'lmpetent authoritv, as th) ,,,n,,,,"r,i,1i,1liy"f i:,r;,::i,:n;::f ii::il":,,;:i provided i itat, i, ro,u,,,,.,,,, ii,f flii,!:,, ::.": :y^,! :.*,, ow,.con veyo nce deed iiiii!{ i,' I i",l ii,i,r; ", i :;j. i i,;.' i;i : ;:":;;: :: ;;:::: ;:: dote or i:,1,,, ot ,tccup;;;;:;:,::;l:,iy,,, n rhree months from 50.

Accordingly, the au L, (,r rty direct. tt,u .".pona"nt to execute the conveyance ff:;:fl"ff:,::;:l:Tj:,,,,-J:;;;,;;;:,::::'" *, wi,hin e0 H.

Directions ofthe authority 51.

Hence, the authoriry l)(,rct directions under sectio, ,rY Our.", this orclcr and issues the following of the Act to ensurc compliance of obligations Page 19 of 20 * HARER/\ *db. eunuennnt Complaint No.

7769 of 2022 cast upon the promoter as per tlte function entrusted to the authority under section 34(fJ: i.

The respondent is directed to pay the arrears of amount of assured return at agreed rate to the complainant(sJ till leasing ofthe unit.

The respondent/promoter is directed to adjust the amount of assured return as already paid. ii.

The respondent shall execute the convcyance deed of the allotted unit within the 3 months of this order altcr obtaining valid OC from the competent authority and give offcr to the complainant in 60 days thereof. iii. reof. iii.

A period of 90 days is given to the respondent to comply with the directions given in this order and failing which legal consequences would follow.

52.

Complaint stands disposed of.

53.

File be consigned to registry.

Kumar Arora) Member Haryana Real Ilstatc llegulatory Authority, Gurugram Date* 22.03.2024 Page 20 of 20