SHOBHA BHALLA vs VATIKA ONE ON ONE PVT. LTD.

ffiHARERA ffi. eunUGRAM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGMM Date of decision: - ZB.O},ZOZS NAME OF THE BUITDER Vatika One On One private Limited PROJECT NAME Vatika One on One, Sector 16, Gurugram Haryana Case title Appearance S.

No.

Case No.

1. cR/8141,/2022 Sobha Bhala VS.

1,.

Vatika One 0n One lPri- vate Limited Z.

Vatika Limited Adv.

Varun Kathuria (Complainant) Adv.

Ankur Berry [Respondent) 2. cR/8742/2022 Chander Bhala VS 1..

Vatika One On One Pri- vate Limited 2.

Varun Kathuria (ComplainantJ Adv.

Ankur Berry (Respondent) 3. cR/8L44/?022 Chander Bhala VS 1.

Vatika One 0n One Pri- vate Limited 2.

Ankur Berry, IRespondentJ CORAM: Shri Vijay Kumar Goial Member ORDER 1..

The order shall dispose off all the three complaints titled as above filled before this authority under section 31 of the Real Estate (Regulation and Development) Act, 2016 [hereinafter referred as "the Act") read with rule 2B of the Haryana Real Estate fllegulation and Development) Rules, ZOLT (hereinafter referred as "the rules").

Since the cr:re issues emanating from them are similar in nature and the complainant[s) in the above referr,ed matters are allottees of the projects, Vatika One On One Private Limited Sector 16, Gurugram being developed by the same respondent- promoter i.e.

Vatika One On One Private Limited The terms and conditions of the builcler buyer's agreements that had been executed between the parti es inter se erre Page 1 of24 Complaint No.

8141 of Z0ZZ and Z others ffiHARER,E ffiGURUGRntrl Complaint No.

8141 of 2022 and 2 others also similar.

The fulcrum of the issue involved in all these cases pertains to failure on the part of the respondent/promoter to pay assured return as per the terms of the builder buyers agreement, seeking pending assured return along with interest.

2.

The details of the complaints, reply status, unit nr:. unit nr:., date of allotment lettr:r, date of agreement, due date of possession, offer of possession and rellef sought are given in the table below: Vatika One 0n One Sector-16 Possession Clause 17: "The Developer based on its present plans and estimates and subject to all just exceptions, contemplate:; to complete construction of the said Building/ said Commercial Unit within a period of 48 (Forty Eight) months from the date of execution of this Agreement unless there shall be delay or there shall be failure due to reasons mentioned in this qgreement or due to failure of Buyer(s) to pqy in time the price of the said Commercial Unit along with all dthencharges and dues [n accordsnce with the Schedule of Payments......." Clause 75.

Assured Return "The Developer may, where the Buyer has 100% of the total sqle considerotion and other charges for the Commercial unit, upon signing of this Agreement pay Rs.

151.65/- (one hundred fifty-one and sixty five poisa only) per sq. ft. super orea per month by way of assured return to the Buyer, of certain category(ies.) of commercial unit as per its policy, from the date of execution of this agreement till the construction oJ'the said commercial unit is complete.

Such policy of the Developer may change.,From time to time where the Developer may withdraw the assured return scheme." Occupation certificate received on 06.09.2 02 1 Sr N o Complain t No./Title /Date of filing/ Reply status Unit /sho p no, and area Date of execution of builder buyer's agreement Due date of possession Assured return paid till date in Rs.

Total sale consideratio n in (Rs.) Paid-up amount in Rs.

1 cR/81.41/ 2022 DOF:- 1.9.01..202 3 RR:- 19.1.0.202 3 350, 3'd I floor, i block no.3 500 sq. ft.

05.11.2016 05.11.2020 {calculated from the date of agreement] 18,90,570/- [from 09.11,2016 r.ill 01.09.2018) - page 3 of reply 39,64,505/- (Page 16 of complaint) 44,77,825/- (Page 3 of complaintJ ? cR/8142/ 2022 DOF:- 19.01..202 3 RR:- 1.9.1.0.202 3 352, block no. block no.3 05.11.2016 05.77.2020 Icalculated from the date of agreement] 77,90,570/- (from 09.11.2016 till 01,0e.201.8) - page 4 of reply 39,64,505/- (Page 16 of complaint) 44,77,B2S/- (Page 8 of complaintJ Page2 of24 ffiHARERA ffieunu.ennrrri Complaint No.

8141 of 2022 and 2 others 3.

Thefactsofallthecomplaintsfiledbythecomplain"n@ similar.

Out of the above-mentjOnedi,,coS€, the particulars of lead case CR/s141/2022 titled ,r soufi-fiii*ffi VS. vatika one on one private Limited are being taken into consideration for determining the rights of the allotteeIs), A.

Unit and project-related details 4.

The particulars of the project, the details of sale consideration, the amount paid by the complainants, the date of proposed handing over of the possession, and the delay period, if any, have been detailed in the following tabular form: CR/BI4L/TOZZ titled as Sobha Bhala VS.

Vatika One on One Private Limited Sr.

Particulars Details 1..

Name of the project "Vatika One on One", Sector L6, Gurugram 2.

Nature of the project Commercial Complex 3, Area of the project 12.12125 acres 4.

DTCP License no. and validity status License no.

05 of 201,5 dated 06.08.2015 valid upto 05.08.2020.

5.

Registered/ not registered Registration no.

237 of 20L7 dated 20.09.2017 valid upto L9.09.2022.

6.

Allotment letter 17.09.201,6 3. cR/8144/ 2022 D0F:- 1.9.0L.202 5 RR:- 19.10.202 J 352, block no.3 05.11.2016 0s.11,2020 | 77,90,s70/- [calculated I (from from the I os.tt.Zoto titt date of | 01.09.2015) - agreementl I poge 4 of reply 39,64,505/- fPage 16 of complaintJ 44,77,925/- (Page 8 of complaint) Relief sought by the complainant in all cases:- 1.

Assured Return 2' Direct the respondent to pay interest at the prescribed rate on the unpaid assured return calculated from the date of monthly returns became due till the date of actual payment.

3.

Direct the respondent to execute the CD Page 3 of24 ffi ffi riqiq lrrt HARER& GUt?UGl?AM Pase L0 of complaint 7.

Date of execution of agreement 05. eement 05.1,1,.2016 fPase 13 of complaintl B.

Unit no.

350, 3'd floor, block no.

3 fPaee 10 of complaint') 9.

Unit area admeasuring 500sq. ft. (Page 10 of complaint) 10.

Provision regarding assured return Clause 15.

Assured Return in full down payment cases "The Developer may, where the Buyer hais.L00% of the total sale consideration #nd other charges for the Commercial ''ii'it, upon signing of this Agreement 'OW Rt.

151.65/- (one hundred frfty- one and sixty-five paisa only) per sq. ft. super areo per month by way of assured return to the Buyer, of certain categqry$es) of commercial unit os per its,policy, from the date of execution of ' this' agreement till the constntction of the said commercial unit is complete.

Such policy of the Developet may change from time to iime' where the Developer may withdraw the assured return scheme." 76.7.'The Developer will pay to the buyerRs.130/- p.. tq. ft. per month as committed return for upto three years I from the date of completion of con- I struction of the said building or the I said unit is put on lease whichever is I earlier.

I Por, 30 of comptqint) 1,1,.

Possession clause Clause L7 of the BBA "The Developer based on its present plans and estimates and subiect to all just exceptions, contemplates to complete construction of the soid Buildin.q/ said Commercial Unit within 14.

Page 4 of24 B.

5. ffiHARERA #- GURToRAM Complaint No.

8141 of 2022 and 2 others Facts of the complaint: The complainant has made the following submissions: a) The Respondent no.2 made false representations and claims of being a big Company and a reputed developer and thereby induced thre Complainant to book/purchase a 500 sq. ft, unit in its project known as "Vatika One on One" located at Sector 16, Gurgaon, by showcasing a fancy brochure which depicted that the project will be developed and constructed as state of the art being one of its kind with all Page 5 of24 a period of 48 (Forty Eight) months from the date of execution of this Agreement unle ement unless there shall be delay or there shall be failure due to reasons mentioned in this agreement or due to failure of Buyer(s) to pay in time the price of the soid Commercial Unit along with all other charges and dues in accordance with the Schedule of Payments......." 12.

Due date of possession 05.11,.2020 [Calculated to be 48 months from the date of execution of builder buyer a$reement, i.e., from 05.11.2016) 13.

Basic sale consideration Rs.

39,64,505,/- (Page 16 of complaint) 1,4.

Amount paid by the complainant Rs.

44,77 ,825,1- [As stated by the complainant on page 3 of complaint) 15.

Amount of Assured return paid by the respondent to the complainant till date Rs.

18,90,570,1- (from 09.1.1..2016 till 0 1.09.2018) page 3 of repJly 1,6.

Occupation certificate 06.09,202L ffiHARER+ M- eunuennrv b) c) d) Complaint No.

8141 of 2022 and 2 others modern amenities and facilities.

The complainant paid the full consideration amount of Rs.

44,77,825/- upfront to the Respondent no.

1 and was allotted Unit no.

350 on the third floor in Block - 3 of the project having 500 sq. ft. super area vidr: letter dated 17.09.201,6.

The booking of the unit was done at the offir:e of the respondent no.

2 only and the complainant was informed that the respondent no.

1 is a company of the respondent no.

2 only and the respondent no.

2 will be responsible for the obligations pertaining to the entire project.

As per the allotment letter the Respondent no.

2 was liable to pay assured monthly returns @ Bs.

151.65/- per sq. ft. per month till completion of construction post which it was liable to pay @ Rs.

130 /- per sq. ft. per month to the Complainant for upto 3 years post completion or titi tfre unit is pri on lease, whichever was earlier.

The said letter also contained terms specifying the amounts to be paid by the complainant or the respondent no.

2 if the unit is put on lease at a higher or lower rate than Rs.

130/- per sq. ft. respectively. pectively.

That the builder buyers agreement dated t05.11.2016 was executed between the respondents and the complainant which elaborated upon the terms mentioned in the allotment letter.

All terms pertaining to payment of assured returns and leasing of the unit were elaborated in Clause 15 and 1"6 of the BBA and payment plan was mentioned in Annexure - 1 of the BBA.

The respondent in furtherance of its mala fide intentions and ulterior motives stopped the payment of the monthly returns to the complainant from October, 20L8, onwards claiming modification of existing laws which was false and baseless.

Despite of repeaterd requests, the same have not been paid till date.

The Respondents around fune, 2019, asked the Complainant to visit their office and Page 6 of24 ffiHARERA ffiGURUGRAM e) Complaint No.

8141 of 2022 and 2 others execute an addendum as per which they will forego their claims of assured returns post fune, 201,9, but the Complainant refused for the same.

That the respondents have not only duped the complainant br"rt several other unsuspecting buyers by refusing to pay the monthly returns on one pretext or the other and the complainants are not even sure about the status of completion of the said project till date.

It is a matter of record that no recent laws have been enacted which prevent the payment of month returns as claimed by the respondent as other developers are marketing project with assured return payments and are also paying the relturns even today.

The conduct of the respondents is illegaLl and arbitrary and the respondent is guilty of deficiency of services and of unfair and monopolistic trade practices.

The respondr:nts are clearly in breach of its contractual obligations and of causing financial loss to the complainants and the conduct of the respondents has caused and :is continuing to cause a great amount of financial loss stress, grief and I harassment to the complainant. mplainant.

The resllondents are jointly and severally liable for the reliefs claimed by the complainant.

C.

Relief sought by the complainant: 6.

The complainant has sought the following relief[s): i.

Direct the respondent to pay the amount of assured returns due and payable by it to the complainant[s) from December,201.9, till date of order, to be calculated at Rs.

151,.65 /- per sq. ft. per month till issuance of Occupation Certificate/Completion certificate by the competent authority and thereafter, as per the terms of the agreement executerd between the parties.

M PageT of24 ffiHARERA ".-.,e-.- GURUGRAM Complaint No.

8141 of 2022 and2 others ii.

The respondents be directed to continue paying the investment returns/monthly returns to the complainant(s) as per the terms of the builder buyers agreement. iii.

Direct the respondent to execute conveyance deed as per the agreed terms.

7 .

0n the date of hearing, the authority explained to the respondent-promoter about the contraventions as alleged to have been committed in relation to Section 1,1(4) of the Act to plead guilty or not to plead guilty.

The respondent contested the c on the following grounds vide its reply: a) That at the very outset, it the instant complaint is un- tenable both in facts and in law, and is filed ryrrithout a cause of action, hence is liable to be be rejected on this ground alone, b) That the Complainant has approached the Authority with unclean D.

B. hands. l'hat the claims of the Complainant are not genuine, and har,,e been outreached and concocted, thus, by reas,cn of approaching the Au- thority with unclean hands and suppressinpJ material facts.

That the Complainant are estopped by their own acts, conduct, acquiescence, laches, omissions etc. from filing the present complaint. c) That the Complainant has gravely filing the present Complaint and misconstrued the Piovisions of the RERA Act.

RERA Act.

That it is an admitted fact that by no stretch of imagination it can be concluded that the Com- plainant herein is an "Allottee/Consumer".

That the Complainant is simply an investor who approached the Respondent for investment op- portunities and for steady committed Returns and Rental Income.

That the Complainant being an investor in the Project has no locus standi to file the present Complaint.

Page B of24 ffiHARERE ffi.GunuGRAM Complaint No.8141 of 2022 and 2 others d) That in the year 2016, the Complainant learned about the commercial project launched by the Respondent under the name and title 'Vatika- One On One'("Project") and repeatedly visited the office of the Respond- ent to know the details of the said project.

T'hat the Complainant ap- proached the Respondent and expressed interest in booking of an apart- ment in the commercial colony developed by Respondent situated in Sector 16, Urban Estate Gurgaon, Haryana.

Prior to the booking, the Complainant conducted extensive and indeperndent enquiries with rer- gard to the project, only after being fully satisfied on all aspects, that they took an independent and ihformed decision, uninfluenced in any manner by the Respondent, to book the unit in question. e) That thereafter the, original allottees, vide an application form dated 08.09.2016applied to the Respondent for provisional allotment of the unit.

Thereafter, an allotment letter was issued in favour of the original allottees and a unit admeasuring 500 sq. ft. bearing no.350, 3'dFloor, Block-3, admeasuringS00 sq. ft. (tentative arera) was allotted vide allo- cation letter dated 17.09.201,6.

That an allotment letter so issued in fa- vour of the original allottees confirmed the erllotment of the said unit along with monthly assured returns.

0 Thereafter, a Buyer's Agreement dated 05.1.1.2016 was executed be- tween the Complainant and the Respondent. espondent.

It is pertinent to mention that the Buyer's Agreement was consciously and voluntarily executed between the parties and the terms and conditions of the same are bincl- ing on the Parties.

That being a contractual relationship, reciprocal promises are bound to be maintained.

That it is respectfully submitted that the rights and obligations of allottee as well as the builder are com- pletely and entirely determined by the covenants incorporated in the Page 9 of24 HARTR,E ffi,GURUGRAM Complaint No.

8141 of 2022 and 2 others Agreement which continue to be binding upon the parties thereto with full force and effect. g) That in any case whatsoever, the aspect of lerasing of the unit and the investment of the Complainant cannot be dezrlt with by this Authority.

Regardless, at the utmo st bonafide, the Hon'ble Authority is most hum- bly appraised by the fact that the Respondent had been rightly obliging with the payments of committed returns to be made by it.

That it is sub- mitted that the Respondent vide its allotment letter has acknowledged the receipt of the application form and further it was clearly apprised to the Complainant that the Respondent shall put on lease the said prem- ises which clears the air that the Complainant is not an allottee but an investor who has booked the said unit in order to earn rental income at the behest of the Respondent. h) That it is humbly submitted before the Hon'tlle Authority that the Re- spondent was always prompt in making the payment of assured returns as agreed under the Agreement.

It is not out of place to mention that the Respondent herein had been paying the committed return of Rs.18,90,570 /- from 09.11.2016 till 01.09.2018 without any delay.

It is to note that as on 0l-.09.2018, the Complainernt herein had already re- ceived an amount of Rs. unt of Rs.18,90,570/- as assured return as agreed by the Respondent as per the aforesaid allotment, I{owever, post September, 201,8, the Respondent could not pay the agret:d Assured Returns due to change in the legal position and the illegality of making the payment of the same. i) That it is submitted that the Complainant has been duly informed about the suspension of all return-based sales as the Respondent was barred under Section 3 of BUDS Act from making any payment towards assured return in pursuance to an "Unregulated Deplosit Scheme".

That in the Page 10 of24 ffi ffi wiE q{i H b Bii l?AM ABT URUG Complaint No.

8141 of 2022 and 2 others given facts and circumstances, it is most humbly submitted that the Re- spondent had rightly stopped making the payment, and in any case whatsoever, the present Complaint cannot be entertained by this Au- thority.

In this regard, it is most humbly submiitted as under: Relief of assured return beyond the jurisdiction of this Authority: - 1) That the Complainant is praying for the relief of "Assured Returns" which is beyond the jurisdiction that this Authority has been dressed with.

That from the bare perusal of the RERA l\ct, it is clear that the said Act provides for three kinds of'remedies in cas;e of any dispute between th respect to the d,evelopment of the projer:t a Developer and Allottee wi as per the Agreement.

That such remedies are provided under Section 1B of the RERA Act,2016 for violation of any provision of the RERA Act, 201,6.

That the said remedieS are 0f "Refund" in case the allottee wants to withdraw from the project and the other being "interest for delay of every month" in case the allottee wants to continue in the project and the last one is for compensation for the loss occurred by the Allottee.

That it is relevant to mention here that nowhere in the said provision the Ld.

Authority has been dressed with jurisdiction to grant "Assttred Returns".

Returns". k) That the September, 201,8 al- to mention herein that the payment of assured return is not maintaina- ble before the Ld.

Authority upon enactment of the Banning of Unregu- lated Deposits Schemes Act,2019 IBUDS Act].

That any direction for payment of assured return shall be tantamottnt to violation of the pro- visions of the BUDS Act.

It is stated that the assured returns or assured rentals under the said Agreement, clearly attracts the definition of "de- posit" and falls under the ambit of "Unregulated Deposit Scheme".

Thus.

That the non-payment of assured return post September,'2018 as al- leged by the Complainant in his complaint is bad in law. lt is pertinent Page 11 of24 ffiHARERA ffiGuRUoRAM The Respondent was barred under Section 3 of BUDS Act from making any payment towards assured return in pursuance to an "Unregulated Deposit Scheme".

In this regard, it is most humbly submitted as under: A.

Issue regarding Assured Return is pending adjudication before the Hon'ble Punjab and Haryana High Court and lHon'ble Haryana Real Es- tate Appellate Tribunal. i.

It is imperative to mention that the issue pertaining to the assured return is already pending for adjudication before the Hon'ble Pun- jab and Haryana High Court.

Wherein, the Hon'ble High Court in the matte r of 'Vatika Limited vs llnion of India and Anr.' in CWP No.

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 of hearing. ii.

That it is reiterated that the issues so raised in this complaint are not only baseless but also demonstrates; an attempt to arm twist the Respondent into succumbing to the tr)ressure so created by the Complainant in filing this complaint before this Authority and seeking the reliefs which the Complainant are not entitled to raise before this AuthoritY.

AuthoritY. l) That the Respondent cannot pay "Assured Returns" to the Complainant by any stretch of imagination in the view of thr: prevailing legal position.

That on21,.O2.2O1,g,the Central Government passed an ordinance "Ban- ning of Unregulated Deposits, 20L9", to stop the menace of unregulated deposits and payment of returns on such unregulated deposits. ml It is submitted that as per the Agreement so s;igned and acknowledged, the completion of the said unit was subject to the midway hindrances complainr No.

8141 of 2022 and 2 others Page L2 of24 {v HARER,E ffiGURUGRAM Complaint No.

8141 of 2022 and 2 others which were beyond the control of the Responclent.

And, in case the con- struction of the said commercial unit was delayed due to such 'Force Majeure' conditions the Respondent were entitled for extension of time period for completion. n) Therefore, there is no default or lapse on the part of the Respondent and there in no equity in favour of the Complainant.

It is evident from the entire sequence of events, that no illegality can be attributed to the Re- spondent.

The allegations levelled by the CornLplainant are totally base- less.

Hence, the present complaint under reply is an utter abuse of the process of law, and henc.

JeSUives to be dismissed. g.

Written submission made by the complainant on 06.02 .2025. : complainant purchased a 500 sq. ft, unit in the project of the respondent then known as Vatika one on one for a total sale consideration amount of Rs.

44,77825/- which was paid upfront by the complainant to the respondent no, 1 complalnant was allotted unit no.

352 on the 3.d floor in block-3 of the project having 500 sq. ft.

As per the allotment letter the respondent was lia'ble to pay assured return i.e., Rs.

151.665 per sq. ft. per month till the completion of construction post which it was liable to pay @ Rs.

L30 per sq. ft. per month to the complainant for upto 3 years post completion or till the unit is put on lease, whichever is earlier.

10. rlier.

10.

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 based on these undisputed documents and submission made by the complainant.

E. ]urisdiction of the authoritY: 11.The authority observes that it has teruitorial as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

Page 13 of24 HARERd} W-GUI?UGRAM Complaint No.

8141 of 2022 and 2 others E.

I Territorial iurisdiction 12.

As per notification no.1/92/201,7-LTCP dated 1,4.1,2.2017 issued by Town and Country Planning Department, the juris;diction of Real Estate Regulatory Authority, Gurugram shall be the entj.re Gurugram District for all purposes with offices situated in Gurugram.

In the present case, the project in question is situated within the planning iarea of Gurugram district.

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

E.

II Subiect matter iurisdiction 13.Section 11(+)(a) of the Act,2AL6 provides that the promoter shall be responsible to the allottee as per the agreement for sale.

Section 1,1(4)[a] is reproduced as hereunder: Section fift)(a) Be responsible for all obligations, responsibilities and functions under the provlsions of this Act or the rules and regulations made thereunder or to the allottees as per the agreement for sale, or to the association of allottees, as the cqs;e may be, till the conveyance of all the apartments, plots or builclings, as the case may be, to the allottees, or the common areas to the association of allottees or the competent authority, as the case may be; Section 34'Functions of the Authority: 34A of the Act provides to ensure contpliance of the obligations cast upon the promoters, the allottees and the real estate agents under this Act and the rules and regulations made thereunder. l-4.. der. l-4..

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 promoter leaving aside compensation which is to be decided by the adjudicating officer if pursued by the comtrllainants at a later stage' F'.

Findings on the obiections raised by the respondent: F.I Obiection regarding maintainability of complaint on account of complainant being investor.

15.The respondent took a stand that the complalnant is investor and not consumer and therefore, he is not entitled to the protection of the Act and thereby not entitled to file the complaint under section 31 of the Act' Page 14 of24 HAREl?A ffiGUI?UGI?AM Complaint No.

8141 of 2022 and 2 others However, it is pertinent to note that any aggrieved person can file zr complaint against the promoter if he contravenes or violates any provisions of the Act or rules or regulations made thereunder.

Upon careful perusal of all the terms and conditions of the allotment lettr:r, it is revealed that the complainants are buyer's, and they have paid a considerable amount to the respondent-promoter towards purchase of unit in its project.

At this stager, it is important to stress upon the definition of term allottee under the Act., the same is reproduced below for ready reference: "2(d) "allottee" in relation to a real estate pro.,is67 means the person to whom a plot, apartment or building, a's the case may be, has been allotted, sold (whether as freeholtl or leasehold) or otherwise transferred by the promoter, and includes the person who subsequently acquires the said allotment through sale, transfer or otherwise but does not include a person to whom such plot, apartment or building, as the case may be, is given on rent;" 16.In 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 complainants, it is crystal clear that the complainants mplainants are allottee[sJ as 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 "allottee" and there cannot be a parfy having a status of "investor".

Thus, the contention of th.e promoter that the allottee being investor are nolt entitled to protection of this Act also stands rejected.

F.ll pendency of petition before Hon'ble Puniab and Haryana High Court regarding assured return 17.

The ..rpond.nt has raised an objection that the Hon'ble High Court of punjab & Haryana in CWP No.2674O of 2O22 titled as "Vatika Limited Vs.

Union of India & Ors.", took the cognizance in respect of Banning of Unregulated Deposits Schemes Act, 20L9 and restrained the Union of India and the State of Haryana from taking coercivr: steps in criminal cases Page 15 of24 HARER,q ffiGUI?UGIIAM Complaint No.

8141 of 2022 and 2 others registered against the Company for seeking recovery against deposits till the next date of hearing.

18.

With respect to the aforesaid contention, the authority place reliance on order dated 22.1,1,.2023 in CWP No.26740 of 2022 (supra), whereby the Hon'ble Punjab and Haryana High Court has staterl that- "...there is no stay on adjudication on the pending civil appeals/petitions before the Real Estate Regulatory Authority as also against the investigating agencies and they are at liberty to proceed further in the ongoing matters that are pending with them.

Therl is no scope for any further clarification." Thus, in view of the above, the authority has deciderd to proceed further with the present matter.

F.lll Objections regarding force Majeure.

19.

The respondent-promoter has raised the contention that the construction of the unit of the complainant has been delayed due to force majeure circumstances such as orders passed by the Hc,n'ble NGT, Environment Protection Control Authority, and Hon'ble Suprenre Court. nre Court.

The pleas of the respondent advanced in this regard are devoid of merit.

The orders passed were for a very short period of time and thus, cannot be said to impact the respondent-builder leading to such a delay in the completion.

Furthermore, the respondent should have foreseen such situations.

Thus, the promoter respondent cannot be given any leniency on the tlasis of aforesaid reasons and it is a well-settled principle that a person cannot take benefit of his own wrong.

G.

Findings on relief sought by the complainant.

G.I Directed the respondent to clear all dues of assured return with interest.

20.

The complainant in the present complaint seeking unpaid assured returns on monthly basis from the respondent as per the agreed terms.

It is pleaded that the respondent has not complied with the te:rms and conditions of the Page 16 ofZ4 ffiHARER'q ffiGURUGRAM Complaint No.

8141 of 2022 and 2 others agreement.

Though for some time, the amount of assured returns was paid Banning of Unregulated Deposit Schemes Act,20l[9.

But that Act does not create a bar for payment of assured returns even after coming into operation and the payments made in this regard are protected as per section 2[4)[iii) of the above-mentioned Act.

However, the plea of respondent is otherwise and who took a stand that though it paid the amount of assured return up to the September 201,13 but did not pay assured return amount after coming into force of the Act of 2019 as the same was declared illegal.

21.

The Act of 201,6 defines "agreement for sale" means an agreement entered into between the promoter and the allottee [Sectiorr 2[c)].

An agreement for sale is defined as an arrangement entered betvveen the promoter and allottee with freewill and consent of both the partiels.

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

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

The different kinds of payment plans were in vogue and legal within the meaning of the agreement for sale.

One of the integral parts of this agreement is the transaction of assured return inter-se parties.

The "agreement for sale" after coming into force of this Act [i.e., Act of 2Ot6) shall be in the prescribed form as per rules but this Act of 201,6 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,, (Writ Petition No.

2737 of 2077) decided on 06.72.2017.

Since the agreement defines the buyer-promoter relationship therefore, il. can be said that the agreement for assured returns between the promoter but later on, the respondent refused to pay the same by taking a plea of the PagelT of24 ffiHARERA W- cuRUcRAM and allottee arises out of the same relationship, Therefore, it can be said that the real estate regulatory authority has complete jurisdiction to deal with assured return cases as the contractual relationship arise out of agreement for sale only and between the same parties as per the provisions of section l-1[+) (a) of the Act of 2OLr5 which provides that the promoter would be responsible for all the obligar[ions under the Act as per the agreement for sale till the execution of conveyance deed of the unit in favour of the allottee.

22' It is now well settled preposition of law that when payment of assured returns is part and parcel of builder buyer's agreement , then 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 for sale defines the builder-buyer relationship. ationship.

Sio, it can be said that the= agreement for assured returns between the promoter and an allotee arises out of the same relationship and is marked by the original agreement for sale.

Therefore, it can be said that the authority has complete jurisdictiop with respect to assured return cases as the contractual relationship arises out of the agreement for sale only and between the same contracting parties to agreement for sale.

This project is alrr:ady registered with thel Authority bearing no.237 of 2017 dated 20.09.2017.

The Act of 2016 has no provision for re-writing of contractual obligaLions between the parties as held by the Hon'ble Bombay High Court in case Neelkamal Realtors suburban Private Limited and Anr.

V/s union of India & ors., (supra) as quoted earlier.

So, the respondent/builder can't take a plea that there was no contractual obligation to pay the amount r:f assured returns to the allottee after the Act of 2016 came into force or that a new agreement is being executed with regard to that fact.

When there is an obligation of the Page 18 of24 HARER,& GUl?UGt?AM Complaint No.

8141 of 2022 and 2 others promoter against an allottee to pay the amount of assured returns, then he can't wriggle out from that situation by taking a plea of the enforcement of Act of 201.6, BUDS Act 2019 or any other law.

23.\t is pleaded on behalf of respondent/builder that after the Banning of Unregulated Deposit Schemes Act of 201.9 came into force, there is bar for payment of assured returns to an allottee.

But agilin, the plea taken in this regard is devoid of merit.

Section 2(a) of the aborre-me'ntioned Act defines the word 'deposit' as an amount of money received by woy of an advance or Ioan 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 the form of a specified service, with or without ctny benefit in the form ctf interest, bonus, profit oi,,i, any other form, but do rm, but does not include i. an amount received in the Coirse of, or for the purpose of, busi- ness and bearing a genuine connection to s;uch business includ' ing- ii. advance received in connection with con:sideration of an im- movable property under an agreement or orrangement subiect to the condition that such advance is adjustted against such im- movable property as specified in terms of t:he agreement or ar- rangement.

24.Themoney 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 asrsured 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.

25.

Moreover, the developer is also bound by promissory estoppel.

As per this doctrine, the view is that if any person has made a promise and the promisee has acted on such promise and altered his position, then the Page 19 of24 ffiHARERIT ffiGuIUGRAM Complaint No.

8141 of 2022 and2 others person/promisor is bound to comply with his or her promise.

When thr: builders failed to honour their commitments, a number of cases were filecl by the creditors at different forums such as Nikhil Mehta, Pioneer Urban Land and Infrastructure which ultimately led the central government to enact the Banning of Unregulated Deposit Scheme Act, 201,9 on 31.07.201,\) in pursuant to the Banning of Unregulated Deprosit Scheme Ordinance, 201,8.

However, the moot question to be decidred is as to whether the schemes floated earlier by the builders and promising as assured returns on the basis of allotment of units are covered by the abovementioned Act or not. ct or not.

A similar issue for consideration arose before I-lon'ble RERA Panchkula in case Baldev Gautqm 7S Rise Projects Private Limited (RERA-PKL' 2068-2079) where in it was held on 11.03.2020 that a builder is liable to pay monthly assured returnS to the complainants till possession of respective apartments stands handed over and thLere is no illegality in this regard.

That this Authority has also deliberated ttre issue of assured return in number of cases including Prateek Srivastava & Namita Mehta VS M/s Vatikq Limited (RERA-GRG-660-2021) as well as cases numbered as 518 of 202L,622 of 2021 and 633 of 202L, and similar view has been taken in present case.

26.lt is not disputed that the respondent is a real es1[ate developer, and it had not obtained registration under the Act of 2Ot6 for the project in question.

However, the project in which the advance has been received by the developer from the allottee is an ongoing project as per section 3[1) of the Act of 201,6 and, the same would fall within the jurisdiction of the authority for giving the desired relief to the complainant besides initiating penal proceedings.

So, the amount paid by the complainant to the builder is a regulated deposit accepted by the later from the former against ttre immovable property to be transferred to ,n. ,1lolttee later on' Page 20 of24 ffiHARERA ffieunuenrrr Complaint No.

8141 of 2022 andZ others 27 .

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.

The agreemenlt executed between the parties on 05.11.2016, As per clause 1,7 of buyer's; agreement, the possession of the subject unit was to be delivered withirr stipulated time i.e., 05.1- 1.2020.

28.

It is worthwhile to consider that the assured return is payable to the allottees on account of provisions in the buyer's agreement. agreement.

The rate at which assured return has been committed by the promoter is Rs.151,.65/- per sq. ft. of the super area per month which is more than reasonable in the present circumstances.

By way of assured return, the promoter has assured the allottee that they would be entitled for this specific amount till completion of the building and Rs.130/- per sq. ft. per month as committed return for upto three years from the date of completion of the building or' the said unit is put on lease whichever is earlier.

29.

On consideration of the documents available on the record and submissions made by the parties, the complainant has soughLt the amount of unpaid amount of assured return as per the terms of buyer's agreement along with interest on such unpaid assured return.

As per truyer's agreement dated 05.11.2016, the prbmbter had agreed to pay to the complainant-allottee Rs.151,.65/- per sq. ft. from the date of execution of this agreement till completion of the building and Rs.130/- per sq. ft. per month as committed return for upto three years from the date of completion of the building or the said unit is put on lease whichever is earlier.

It is matter of record that the amount of assured return was paid by the respondent promoter till September,20lB but later on, the respondent refused to pay the same by taking a plea of the Banning of Unregulated Deposit Schemes 4ct,2019.

Ilut that Act of 2019 does not create a bar for payment of assured returns even PageZL of24 ffiHARER,E -@"- GURUGRAM Complaint No.

8141 of 2022 and 2 others after coming into operation and the payments made in this regard are protected as per section 2(4)[iii) of the above-mentioned Act.

30.

In the present complaint, OC for the block in whir:h unit of complainant is situated has been received by the promoter on 0(i.09.2021. i.09.2021.

The Authority is of the view that the construction is deemed to tle complete on receipt of occupation certificate from the concerned authority by the respondent promoter for the said project 31.Therefore, considering the facts of the present case, the respondent is directed to pay the amount of assured return at the agreed rate i.e., @ Rs.

151.65 /- per sq. ft. per month from the date the payment of assured return has not been paid i.e., October, 201.8 till the comp)letion of the building, i.e., till the date of receipt of ociupation certificate on 06.09.2021,, and thereafter, Rs.

130 /- per sq. ft. pei month as committed return up to 3 years from the date of completion of construction of the said building i.e., 06.09.2024 in terms of the BBA dated 05.11,.201,6 since there is no document place o record w.r.t. to lease.

32.

The respondent is directed to pay the outstandinlg accrued assured return amount at the agreed rate within 90 days from thre date of this order after adjustment of outstanding dues, if any, from the complainant and failing which that amountwould be payable with interest @ 9.10o/o p.a. till the date of actual realization.

G.V Direct the respondent to execute conveyance deed as per the agreed terms.

3 3.

Sectio n 1,7 (1) of the Act deals with duties of promoter to get the conveyance deed executed and the same is reproduced below: "77, Transfer of title,- (1.), The promoter shall execute a registered conveyance deed in favour of the allottee along with the undivided proportionate title in the common areas to the association of the allottees or the competent authority, os the case may be, and hand over the physical possession of the plot, apartment of building, as the case may be, to the allottees and the common areas to the association of the allottees or the competent authority, as the case Page22 of24 ffiHARER,Ii W-cuRUGRRt'lt Complaint No. plaint No.

8141 of 2022 and 2 others may be, in a real estate project, and the other title documents pertaining thereto within specified period as per sanctioned plans as prctvided under the local laws: Provided that, in the absence of any local law, conveyance deed in favour of the allottee or the association of the allottees or the competent authority, as the case may be, under this section shall be carried out by the promoter within three months from date of is'sue of occupancy certificate." 34,.

The Authority hereby directs the respondent to execute the conveyance deed in favor of the complainant within 3 mornths after obtaining the occupation certificate from the competent authorities.

H.

Directions issued by the Authority: 35.

Hence, the Authority hereby passes this order :rnd issues the following directions under Section 37 of the Act to €:nsure compliance with obligations cast upon the promoter as per the functions entrusted to the Authority under Section 34(0 of the Act of 20L6: The respondent is directed to pay the amount of assured return at the agreed rate i.e., @ Rs.151,.65/- per sq. ft. per month from the date the payment of assured return has not been paid i.e., October,2018 till the completion of the building i.e.

06.09.20",n when OC of the unit is received from the competent authority and thereafter, @ Rs.130/- lter sq. ft. per month as committed return up to 3 years from the date of completion of construction of the said builling or till the unit is put on lease whichever is earlier, in terms of the BBA dated 05.11,.201'6.

The respondent is directed to pay the out:;tanding accrued assured return amount till date at the agreed rate within 90 days from the date of this order after adjustment of outstandiing dues, if any, from the complainant and failing which that amount would be payable with in- terest @9.100/o p.a. till the date of actual realization. ii.

Page23 of24 ffiHARER,t W*GURUGRAM Complaint No. plaint No.

8141 of 2022 and 2 others The respondent-promoter is directed to execute conveyance deed in favour of the complainant(s) in terms of section l7(1) of the Act of 2016 on pay- ment of stamp duty and registration charges as applicable, within 90 days after obtaining occupation certificate from the competent authority.

The respondent shall not charge anythingJ from the complainant which is not part of the buyer's agreement.

This decision shall mutatis mutandis apply to cases mentioned in para 2 of this order wherein details of paid-up amount is mentioned in each of the complaints.

36.

Complaint as well as applica stands disposed off accordingly.

37.

File be consigned to registry. iii. iv.

V. \l-P iay Kuffar Goyal) (Member) Haryana Real Estate Regulatory Authority, Gurugram Page 24 of 24 Dated: 28.03.2025