MS JAGMOHAN ENTERPRISES LLP vs NEO DEVELOPERS PVT.LTD.

The present complaint was filed on 06.02.2023 and the reply received on 15.11.2023. On the last date of hearing, the counsel for the respondent had stated that the issue regarding assured return had been challenged before the Hon’ble High Court of Punjab and Haryana in CWP No.16896 of 2023 clubbed with CWP No.26740 of 2022 and the matter may not decided till the issue is finally adjudicated. Matter has now been clarified to the extent that the concerned authorities can proceed further in the ongoing matters pending with them. The submissions of the counsel for the complainant have been summed up briefly in the proceedings dated 22.11.2023.  The counsel for the complainant wishes to rely upon the orders of this authority passed in CR No.4281/2020 decided on 17.11.2021 wherein relief was granted on similar issues. The complainants are seeking payment of balance assured return and quashing of subsequent demands of VAT and interest and penalties imposed by the respondent. The counsel for the respondent states that a detailed account of the amount paid by the complainant alongwith liability of sales tax/GST/VAT has been provided in the account statement. He further states that the issue of quashing of VAT/GST demand can be raised only in the right forum. So far the other demands are concerned, the final detailed notice dated 7.6.2021 was sent to the complainant for the payment to be made by 21.6.2021 failing which the allotted unit would deemed to be cancelled The counsel for the complainant states that the complainants have recently received a communication from the respondent seeking payment of dues and wishes to bring the same on record to prove that the units have not been cancelled as yet. The complainant may file the additional documents within a period of 15 days after supplying a copy to the counsel for the respondent who may file response to the same within a period of further two weeks. Part arguments heard Matter to come up on  08.05.2024 for arguments  and orders on additional documents and on 22.05.2024  for final arguments in the main matters.

The present complaint was filed on 06.02.2023 and the reply received on 15.11.2023. The complaint has been filed for seeking payment of balance assured return, quashing of subsequent VAT demand,  penalty charges with interest as per RERA Act and handing over of possession after completing the project in which the unit of the allottee is situated. Succinct facts of the case as per complaint and annexures are as under:   S. N. Particulars Details 1. Name of the project Neo Square, Sector-109, Gurugram 2. Project area 2.71 acres 3. Nature of the project Commercial colony 4 Unit no. 25, 2nd Floor 5 Unit area admeasuring 583 sq. ft. (super built-up area) 6 MOU dated 17.04.2013 (page 18 of complaint) 7 Due date of possession 17.04.2016 [Calculated as per Fortune Infrastructure and Ors. vs. Trevor D'Lima and Ors. (12.03.2018 - SC); MANU/SC/0253/2018] 8 Sale consideration Rs.23,90,300/- (as per application form on page 53 of reply) 9 Amount paid by the complainant Rs.28,29,210/- (as per SOA on page 61 of reply) 10 Assured return clause 3.     That Company hereby has agreed to allot to the Allottee(s) premises measuring 583 sq.ft. (54.16 sq.mtr.) super built up area on the Second floor of Tower of the said Project. The Allottee(s) has opted for the 'Investment Return Plan' and has agreed that the basic consideration for allotment of the premises is to be determined at Rs. 4100/- per sq.ft. taking into consideration a return of Rs 85.0/- per sq.ft. per month, subject to the terms of this MOU. Return is provided till first lease is offered to the customer. 11 Assured return paid Rs.36,42,293/- (as per SOA on page 61 of reply) 12 First lease deed and addendum 24.07.2020 (page 62 of reply) 13 Lease assignment request 10.12.2020 (page 82 of reply) 14 Final Notice 07.06.2021 (page 38 of complaint) 15 Occupation certificate /Completion certificate Not obtained 16 Offer of possession Not obtained   The counsel for the complainant states that  the complainant had made payment of full amount of consideration on the date of signing of the MoU  with the assurance that the assured return amount will be paid to the complainant regularly on monthly basis till the first lease of property after completion of the project. However, a communication dated 18.12.2019 was received from the respondent in which it was stated that they are in the process of applying for occupation certificate and further that in view of RERA guidelines, 70% of the amount received from the sale of real estate project is required to be deposited in a separate account to cover the cost of construction and land cost only.  Owing to the restriction being imposed upon the  respondent, it would become illegal for them to withdraw the funds from the bank account towards the monthly assured return and the respondent is left with no other option but to adjust the payments towards monthly interest at the time of possession. The counsel for the complainant further states that vide letter dated 30.03.2017, a subsequent demand for payment of VAT amounting to Rs.20,000/-  was made and also paid by the complainant. Further,  vide communication dated 22.01.2020,  another VAT demand was raised amounting to Rs.3,19,505/- without explaining the reasons for the same.   The due date for handing over of possession was within 36 months from the date of commencement of construction.   The commencement of construction to the knowledge of the complainant was 2015 and the due date of possession was 2018.  The project is yet not complete.   The counsel for the respondent states that the matter regarding jurisdiction of this authority w.r.t payment of assured return has been challenged before the Hon’ble High Court of Punjab and Haryana  in CWP No.16896-2023 which is listed for hearing today  and is clubbed with CWP No.26740-2022 titled as Vatika versus Union of India and the matter may not be decided till the issue is finally adjudicated by the Hon’ble High Court. The counsel for the respondent states that his right for arguments on merits may be reserved.   Part arguments heard.   Matter to come up  on 28.02.2024 for further arguments.

The present complaint was filed on 06.02.2023 and registered as complaint no. 333 of 2023. As per the registry, complainant has sent copy of complaint through speed post as well as through email and proof regarding having the delivery of the complaint made to the respondent is submitted by the complainant as available in the file.  Registry has sent the notice along with a copy of complaint through email on the following email address i.e., [email protected], [email protected] and the same is shown to have delivered on the above email addresses as per the report available in the file.  It is proper service of the notice. Written reply not filed by the respondent. Counsel for the respondent requests adjournment for filing reply. Respondent is directed to file reply within two weeks i.e., by 19.08.2023 in the registry. Last opportunity is being granted. In case reply is not filed within the time allowed, the defence of the respondent may be struck off.Matter to come up  on 22.11.2023 for further proceedings.