PRERNA RAMAWAT DEVINDER SAINI AND KANTA SAINI vs NEO DEVELOPERS PVT.LTD.

Comtlarnt no's 1703 of 2023,1700012023&1699 Prern2 R.nawar & Devender M/s Neo Dsvelope6 Privaie Preroa Ranrwal& Devender M/s N.o D.velopers Privare Prerna Rarawal & Devender v/s M/5 Neo D€velopers Privar€ Date ofdccision M/s Nco l).veloDtrs Privitc I inir'd 1,r.08.2024 I Il L CORAM: shn Ashok Sangwan Shri venker Rao Advo'air shn r{alndcr\trrsl 1]LU' ' rlt shn.

Raiinder Sin3h advo'at€ and \hri v.nker Rao Advo'are shri Raiind.rsr gh idvo" ORDER 1.

This ordcr shall dispose of alt the complaints titled as above filcd bcfore lhc authority under section 31 ol thc Real Estatc (Rcgulation and Dcvclopmcnt) Act' 2016 (hereinafter rererred as the Act') rcad witlr rulc 28 ofthe Haryana Real Estate (Regulation and Development) Rules,2017 lhereinafter referred as "the rutes"] forviolation ofsection 1l (a)(al oithe Act wherein it is inter alia prescribed that the promoter *HARER,.

S.ouiluonmut BETORE THE HARYAXI#AL ESTATE RF'GULATORY hARER Compl,rntnos.1708of I 2OZl.

1?O0ol2()2l&1699 I ot2023 = ) GURUGRAN,4 shall bc rcsponsible ior all iis obligations' responsibilities and functions to the allottee as perthe agreement for sale executed inter sc Thc core issues emanating from them ar€ similar in naNrc and the complainant(s) iD th€ above referred matters are allottees of the proiect, namelv, "Neo Square' being developed bv the same rcspoDdent/promoter ie', M/s Neo developer' Private Limited The r.rms and conditions ot the Memorandum of IlnderstandinR' Buycr's Agrccment against lhe allotment of uniis in the proiect of thc rcspondcnt/builder and tulcrum of tbe issues involved in both thc cascs pc(ains (o failure on the part of the promoter to dclivcr tintclv possession ofthe units in question' seeking award ofassured return till thc cxccution offirst lease and cenain other issues' Thc details of the complaints' reply to status unit no' date of agreement, possession clause' due rlate of possess'on' total sal€ ."n.'a..u,,o. .'a..u,,o., total paid amount' and relief sought are given in the *"::,JiH -t eo Dewrop'E Pnva!' rimit'd 'r Neo sqErc"' occuDrt'on ceniniat': _ not ob(.ined Possesion Claus': _ "'i:tii:lr\'* ;i' it::, - -li i]{:;!, *':*t i),ii.::i,i.i i,.;;pi.,,* "<rp!tur Rtttn e ' l I rARER .

GURUGRAI/ a ssu.etl Relurn Clatse: th" thnoa\.holt po! o naqrtli osued rctu ol Rs-22 500/ tRupP4 ."1.-^" ii^',i-^,7i ri"" pund'ed onttt on n? tatat o ou\L tc'eN?d 'Ii:1\i.iiioii-"i* *d,',b' d 'ox d \a* e Fd *ei e 'o' \^' u ::,'.',;;;;;,; ;:; '. ,," ,"d po'obtP b! t\e At.totLe4't h thP rnnpant l::.;,;-,:, ;;;;;; ';;t; ' -''d"'uii totr o' oantt' b! the ^lhtPet't t^ tn' '.:,:,',;,-,,,. ;' "',,,. b t r t \' t ^ arL' haltr aa1t ll o'nn " i' t i,:..'., ),i',i ^,.a .'. " *ttDepttdtu n"tutnL'P't' ltno')tt /"tr )i-ii'ii",.ii";***, "t 'he tirst teo'"un the 'o tt r'' t.

27 -14.2023 R"pty 04102023 18.12 2014 23oI 10.12.2014 ) TSC: t2,75,00O/' t3,22,',z',l',l /.

7A-72.2017) c!mplrrnLno\ l?U8 'l !ARER 2023 , 1100 of2023 ie.ri.zor,r I GURUGRAN/ 2 cR/1700/ 04.10.2023 1A.t2.2074 3rd 250 sq.

TSC 2,75,O00/ r3,22,271/ 18.12.2014) v/s '1023 1812.r014 l8 12 20l,l 04.r0.2023 TSC: 12,75,000/- 't3,22,2171 1A.12.20141 78.t2.2011 ) .'.';',"i$','"1,; ;; ;;';;-r*T-!F:'.*:F"T"'::f,l:I'H ff y;i ,1" i,ffj]i[i$: j]:"1fi",;lL,','i,lii""il,i. ; ,r,; ..., "in,nL @ Rs 2? s00/ ' lii:::li;:;;l!H..i;;-:;,onof fi.i,,cas'.deed illiillklllijlll,.Jiiii"i[::lli''e''i";d'-*v"*' *"d after obu n ns J,*ti{["*iff:,*",""*;il j*"H.ii.1",,t-*iHitiit;'iii"1u*ar,"y arc claboratcd as follows: Abb.cviaiion Full form r\L T!!rl \rlt .onsLdcrdtion ^F ^mounr oa Li bY rhc allnttc€[s) I F]ARER comPlaintno's 1708of 2023, r70O of2023& 1699 nf 2023 GJRUGRANN Theaforcsaid complaints were filed against the promoteron account of violatioo of the Memorandum oi Understandin& Euyer's Agrccmcnt against thc allotment of ttnits in the proiect oithc respondcnt/builder and tor not haDding over the possession by the due datc' sccking aw:rd of assured return till executi ll execution of first lease' to complete the l! has been decided to treat the said complaints as an application for non-compliance of statutory obliSations on the part ol rhe promoter/ respondent in terms of section 34(o of the A't which mandates the luthorily to cnsurc compliance of the obligations casl upon lhc promotcrs, the allottee(s) and the real €state agents unde' thc Act' thc rulcs and the regulations madethereunder' Thc lacts oi all the above mentioned complainls filed by thc complainan(s)/allottee(s) ale also similar' oul ol the above- mentioned case, the part iciars of lead case CR/770A/2O23 'ltle'l as Pretno Romowoi Devinder Salnl & Kaato Soini V/S M/s Neo Developes Privote Limi'ed are being taken into consid$ation for d.tcrmining thc rights of the allott'e(s) qua assurcd rcturn till cxecurion of first lease deed' to complete the unit offer posscssion afler obtaining the occupation certificate and execut€ the conveyance A.

Unitand proicct related d€tails HARER G!RUGRA[/ Thc particulars of the proiecl' the d€tails of sale consideration' the amount paid bv the complainant(s)' date olpropos€d handins over the possession, delav period' if anv' have been detailed in the rollowing Sr.

I !

Naturc ofthe Proiect Regisier€d 109 of 2017 Datcd 24 08.2017 "Neo Square", Sector 109' Gurusram, Haryana License no 102 of 200{l Dated- 15 05.2008 oi, rtoor-:r' (As on page no 45 ofcomPlarntl 250sq.ft. (Ason Page no 45 ofcomPlaintl 07.01.2015 (As on page no.40 olcomplaintl 18I2.2014 7 lluyers Agreem'n t executed l Clause 3 of thc MOll Complaint no s.1708of 2023 , lTOo 012023& 1699 o12023 H G constructton of the \ad Building/Com\lex, within \4hich the said space is locote within 36 nonths ton the dok ol decutlon this agreement or ,ron the s.art o[ constructton' whtchewr is latcr and oPPtY for gront ol @mpletion/occuponcv ceftif.ote. eftif.ote. 'the conponv on grant ol Oc cu pa n cy Ce r n fr ca te sho t I i ssu e fnol letters to the Allottees) who shall within 30 daYs, thereol remtt The con7onf sholl cont|lete Lhc lEmphrsrs suPPl,edl 10 tl l)uc datc ofPossession 18.12 2017 lcalculated 36 montht datc of cxecution The Codpony sholl sholl po! a nor|htv o$ved rcturr ol aa22,s00/ (RtPe4 'twent!

Two Thouend Five llundrcd Onl, on the rotal o ount re@ived wnh elJat frcn 18.12.20t6 before deduction of ra^ or Source an.l se @to' ce$nr ;nt, odhet tet! which B due ond porable W rhe Altorelst @ the conPonv Ih' holan e tole cansderonon sholl be poyoble bY rhe Altotteel\lto thc ConPah! n o(ordon'e wLh Lhe Poynent S.hedule dnnexed as Annerute t.

The nonthly assured rcturn sholl be potl ta thc Allaucc(\) until the complaintno's 1708 ol 2023.1700oI2023&1699 S HARER" & cuqi,lcnnM 12. llasicsalcconsideration Rs.

12,75,000/ (As per M.o U on page no.23 Rs.13,22,277 | ' (As per M.o U on page no.23 dated 18.12.2014 dated 1a.12.2014 i-ie"cene"t ot tt'" t'sr the sdid dnir Thb sholl be 13.LI 11 I L !'.,s\,gnmcnr rcqucn for payment towards 24.07 -2020 01.10.2020 by 102 oIrcply) ll9otreply) I 16.

Occupa!ion certificate 30.10.2020 I48 of rcpl)) \7. t8 B, tl.

I Facts ofthc comPlaint Thc complainants have made the following suonissions' ' lhat the That lhe complainants Mrs' Prerna Prmawat and Mr'Devender Sarni purchased the unit on 18'12 2014 t'ater on 04'09'2017' Mrs Kanta t, ",1^ ,* "*o as a co'appli€ant The respondent ie'' M/s Neo ,""r.0"..

0r,,"," t'tn"d is engaged in thebusiness activities relaling HARER GI]IIUGRA[/ Complrinthot 170861 2023,1700012023&1699 oi2023 to construction, development, marketing & sales of various tvpes of rcsidential & commercial properties 'lhat in or around November 2014' the complainants met the representative ol the respondent who explained the proiect to them' Latcr, thc rcpresentatives ol the respondent stated that thc projcct consisls of multiple towers having dedicated space for retail' o retail' offices' rcslauranrs, food court, servicc apartment' hvper mart and cltrcma ctc 'lh.t thc respondent :ssur€d the complainants that they havc alrcadv oblaincd all the mandatorv permissions/clear'nces to €onstruct the proiect and the same would be constructed strictly in conformity with the sanctioned plans.

That the consBuction of the proiect would be completed within 36 months of purchasing $e unii' 'lhat thc rcspondent induced ihe complaints to purchase thc unit undcr th.

Assured Return Plan wherein the respondent undcrtook to makc thc paymcnt at the rate of Rs'90 per sq ft' per month for the arca purLhascd if tull payments towards the unit are made by lhc cornplainants at thc time of booking or at the timc of cxecution ot M.morandum ol Understanding (M0U)' 'lhat th. complainants entered into a Memorandum of Understanding with thc respondent on 18 12 2014 and subsequently a Builder 8uv€r ASrccmen! was executed on O7'012015' The complainants have paid a sunt of rts.l3'22'Z7l / towards the consider'tion of the unit' tbrough two chcques, firstly vidc chequcs no 974089 dated 27 '1-12014 dtawn on state llank of lndia and secondly vidc cheque no 974088 datcd 27 11.2014 & drawn on StaE Bank of lndia which wer€ dulv acccpted Il !l conplaint nos 1708 ol 2023 , llo0 of 2023& 1699 o12023 ts ARER GuAUGRAM by thc rcspondent lt was agreed under the MOU that a monthly rcturn otRs.22,500/ shallbe pavable as Assured Return from 18'12 2016' Vl. lhrt the respondent sent an Emailon 15'12'2015 raisins the cumulativc dcmand of Rs.4,74,000/- ofEDC and IDC for unit no 05 '07'08'09 on 3'd floor oith€ proiect and Rs 1'18'500 was charged for each unit The said dcmand was dulv lulfitled by the complainants by making thc cumulative payments of Rs4'74'000/ through monthlv assured return Vll. eturn Vll. 'lhat thc rcspondcnt demanded VAT trom tiNcs ir rcspcc!ofthc sanre unitdespitelh' of very nrst demand' The respondeni raised arnounting to Rs69,675l' on 30'032017 lhrough adjusting the said amount of VAT the complainants scvcral fact it was Paid at lhc linrc the demand towards VA'l' and the same was Paid in monthly assured return Vlll lh!! thc lruth ofthe assurances made by th€ respondcnt surfaccd when th. rcsPond'nt srarted delaying the monthly assured rctunrs and rltrnrrl(ly thc paymcnts of assured rellirn wcrc compl'lelv stopPcd rfd arc du. since Iuly' 2019' That the mala tide intcnrnnrs ol thr rl'sl,ond.trt llso became conspicuous lvhen th' rcsPord'nt Lorrmunrcatctl rts unilaleral dccision of not paying any asstrrcd rcturf rillrh. completion ofthe Proiect' 'Ihat the payment towards VAT was made by buyers bccn deposited with $e concerned authorities bv the duc to the said reason, the demands oIVAT are being rgain irom thc buyers' in 2017 has not compla nt no's 1708 oi 2023,17000f2023&1699 of2023 tb GI]NUGRAI/ x. 'lhat the respofldent sent an email dated 09'042020 to the " ..*o-*o,, *O"r to obliviate itselffrom its responsibility ofpaying ",r,,f.rv *:i*"a 'tutn' fhe respondent is forcing thc complainants to ,,r" i" '.** *tO""nt Forrn" by which thc rcspondent intends to ,""r" *, *" unit to a tbird party and bas also inserted a clause "...rd,t, a vr'nnn U"t the executioD of Lease Assignme'r lorm' thc rcspondent will be oblivialed from its responsibilitv m pay the monthlv Assured Return' *'. ,n", *"rn" assurance of completion of construction ot the project within 3; monrhs ofpurchasingthe unitor from the commencem€nt of .""""*r.", *" **"'ction has still not been completed 'vcn after passagc ot almost 8 years The structure of onlv office building is .nn.t.u.t"a r'ut*t'itt' it ulso nowhere neerto complction 'rhe building whcrcin tood courtand restaurants situates has been constructed up to 2nd noor only and there is no sign ofconstruction ol the tower whcrei wer whcrein ,rn* "*€.**- cinema' serviced apartment' infotainment and cntertainment zone as were shown in the brochure' lt has also come rnto complairants" kno\'Yledge that the r€spondent has not even rcccivcd the license from the concemed authorities to construct thc ,"**^,*"4 besides office building The respondent has further chcated bv selling foo'l court and r€staurant units to othcr buvcrs on 2nd and slh flooras wcll' xtt rt^r ttrc rcspondent has no intention to complete the proicd as no "' n"r.o,lot t" *'*ble to constructth€ proieclbeyond the office tower' rtc comptainants have filed a complaintbefore the Economics Offences 2023 , 1?40 0t H C / tho complainants. l0 On th. date of bea.ing, ARER I]NUGRAI xt WinSs Delhi on 16.03.2022 wherein FIR No_ 0046/2022 has been filed under sections 406/420l1208 against the respondent.

That no fresh co.struction has been erried out in the proiect since 2019.

The completion certif,cate olthe respondent has been denied on scvcral occasion, and on 15.12.2021 the representative ol thc rcspondcnt has admitted before the sTP, curugram that the proiect is not complctc and they had withdrawn the application scekinS complclion certificate in lhe year 2020.

Thar thc complainants are constrained to file the present complarnt seckins the payment of assured retur. at the rate of Rs.90 per sq feet amounting to Rs-22,500 for unit sdme.suring250 sq.ft., since July 2019 tiU the handing over the possession/ lease out ofthe propertv after the complction ol the construction.

C.

Reliefsought by the complainants: (l Lhc.onrpl.rLnints have soughi follolving relicl(s): .Ll L),..1 lhr r.sfondent ro pay Assured ltcturfs rrn Its.22,500/ fronr July, 2019 till handing over the posscss out the property. bl Dircct thc respondent to execute the Sale Deed afier the completion of the proiect in favour ofthe complainants. plainants. cl llcstrain the respondent from entering the lease deed w,th third party tillthe colnpletion olthe project and andinSover posscssion to the Authonty explarncd to thc rcspondcnt/promoter about the contraventions as au.ged to havc fr HARER +: t.'llh, h.cn committcd in relation to section 11(41 (a) guilty or not to Plead guilty' D.

R€plybYth€r€spondent' 11.

Thc rcspondent has contested the complaint on the following grounds: l lhat thc Act 2016 was passed with the sole intention of regularisation of real estate proiects' and th€ dispute resolution bctwcen builders and buyers and the reliefs sought hy thc complainanis cannot be construed to fallwithin the ambit ofthe Acl lh.rt thc complainants are investors and not allottccs' Complaint not.

1708 ol 2023 , |TOO 012023&7699 ol2n23 LI t!l thc .omplainants with the i'tent to invest in the 'eal estate scdor as an rfvcstor, app.oached the respondent and inquired about the proiect i'c'' "Nlio SQUARI:", situated at Sector'109' Gurugram' Haryana' Ihat after bcing fully satisfied with the proiect and the approvals thereof' the complainants decided apply and filed an application lorm on 15'12'2014' s,hcrcby sceking allotment of priority no 7' admeasuring 2sosq'ft of supcr arca on the 3rd floor otthe restaurant/food court spacc having a basrc salc pricc of Rs' 12,75,000/- and opted for the invcstment rcturn It t "t a tl"mo.andum ol understanding dated 1lt 12 2014 was cxeNted b.twecn thc parties, which was a completely separate understanding bctwccn the parties in regards to the payment ofassured returns in lieu of invcstment made by the complainants in the said project and leasinB ofth. unit/space thereof' As per the mutually agreed terms betwe'n the complainants and thc respondent' the returns were to be paid from 18 12.2016 till thc commencement of first lease' It is also submitted that ,E "' Complaintno's 1708oI 2423, t700 ot 2023& 1699 as pcr .

9 as pcr .lause 4 of the MOU, the complainants had duly authorised the rcspondcnt to putthe said unit on lease. l hat thc complainants voluntarily executed the Buyer Agrecmcnt dated 07.01.2015 art€r having iull knowledge and being well satisficd and convcrsanr with the terms and conditions of the Iluyer Agreemen t. 'lhat thc rcspondent had been paying the committed rcturn of Its 22,500/- for every month to the Compla,nant without any delay since 18.12.2016. lt is to note, that as on luly 2019, the compla,nants had rlrcady rcccived an amount of Rs.6,39,750 as assured return.

However, post luly 2019, the respondentcould notpay theagreed Assured Returns duc lo prcvailing legal posit,on vr.r.t. bannin8 of rcturns ovcr unrcgulatcd dcposits pos he enactment otthe BIJDS Act.

Vl. 'l'hat thc obligation ol paymcnt of assured return by the .cspondent lo rhc complainants was only till the commencement ol thc llrst lcase on thc unil.

The first l€ase has already been executed with M/s Ayan Ioods on 24.07.2020.

Thereby, the respondent has duly fulfilled its obligations in terms ol the tvlou.

The since as per the terms of the MOU, the respondent has already fulfilled its obliSation of payment of assured rcturn and that the ffrst lease has also been executed, thc present complaint becomes infructuous.

Vll lhat alrcr thc commcncement olthe First Lease, the respondent has duly inonrarcd thc complainants about the same vide lettcr datcd 0l.10.2020 aDd also by various telephonic conveBat,ons regardrnS the samc and havc further sent a Letter for Assignment of t.ease lorm to the conrplainants to come forward and sign the lease assignment, as had bccn agreed in the MOU.

However, the complainants did not come to aomplaint no's.1708 of 2a23 , 1700 ol 2023& 1619 aI2023 rEl sign thc lease assignment and theretore failed to fulfil then part of obligations.

That, since th€ complainants did not cone forward to sign thc lease assignment, the respondent sent reminder letters dated 10.12. ted 10.12.2020 and 07 -12 2021 to sign the Lease Assignment Form' vlll. that in thc Memorandum of Understandin& there was never any pre_ condition ofobtainins the Occupation Cert,ficate for the execution of the Lcasc.lccd.

Thc resPondcnt has alreadyexecuted the first leasc decd and duly scnt lhc Invitation to sign lease assignm€nt to thc complainants with reminders, as per the terms ol the MOU' However, the complainants havc failcd to come forward. lX. 'lhat it is an established practise in the real estate sector' wherein the promotcr cxecutcs a Leas€ Deed with a lessee for a future project cven beiore the completion of the said projecL Infact there is no bar bv any statutory provision on cntering into such underctanding' There havc h..n numerous instances where renowned d€velopers havc adoPted su.h a Practisc. lfcw olsuch instances/ arc reproduccd herein' which will also provc that it is legally valid to lease out a premises bcforc lhc comPletion of the Project: a 'lhat the real estate firm "Ernbassy Group"' one oI the leadrng commercial real estate developer in its statement released on na 0a.2018 said it shall develop a 11,00,000 sq' feet built to suit facility "Embassv Tech Village" project in Bengaluru in phase$' with the first phase expected to be delivered by the first quartcr nf 2021 In thc same statement it was also mentioned that thcy have signed a long-term lease agreement with lP Morean for conrmcrcial office space at the same project' lt rs notcworthy Complaintno's 1708 of 2023,1700oi2023&1699 o12023 GURUGRAN/ m.ntion hcre that the said statement was releascd by thc limbassy Croup on 08'08'2018' when the project was undcr construction and the expected date ofdelivering the first quartcr was 2021. b.

Similarly, the Embassv Office Parks REIT leased 1'8 million sq ft' across 25 deals including a 550 lakh sq' ft' pre-commitment from JP Morgan at Embassv Tech Village in the 'une quarter of 2022. r of 2022.

Hence, it Proves that the executing a lease deed before the complction ofthe projectisvalid in theeyes of law c In a ncws articl€ it is stated that real estate firm DI I has lcascd ncarly :1,00,000 sq ft' oftice sPace to three companics 'n Curugrarn.

Maiority of the space ha' been takcn at l)l'[ Downtown, an upcoming proiect in Gurgaon lt was furthcr stated that the leasing is part ofthese company's expansion Plan onc. the current Covld_19 situation stabilises' The building where space has been taken is under construction and is c\pccled to be readv by De'ember 2021' d.

In another article, Embassy GrouP stated that it has leased i15,000 sq. ft. oi omce space to automotive softwarc companv Acsra Tcchnologies at tmbassy Taurus 'techzonc (llT'lzl in 'lrivandrum in April 2022 before the completion ot the pro'cct whi.h is scheduled forhandover'n April2023' ln vicw of the above said submissions' it is evident that executing a lease dccd bcfore tbe completion ofa proiect is a common praciice adopted by thc devclopers/promoters in the real estate sector' Therefore' the rcspondent cannot be hald liable to pay any assured returns to thc 2023 , 1700 ol IARER GURUGRAM complainants after the commencement of th€ first lease, any pavment thcrcol in fact will also be contrary io the pr€vailing laws and violation x1.

Ihat the relief of assured return is not maintainable before the Authority upon enactmeDt of the BUDS Act.'lhat any direction for paynrcnr oi assured return shall be tantamount to violation of the provisions olthe BIJDS Act.

X1l. 'l'hat thc Author'ty is dressed with theiurisdiction to adiudicate upon all thc complaints arising out of failure of either party to fulfil the terms and conditions of the Agreement for Sale (Buver's Agreementl llowevcr, in the present matter the complainants are relying upon the tcnns ollqOU which is a distinct agreementthan the Ruycr's Agreemcnt and rhus. the MoU is not covered under the provisions ofthc RI:RA Act, 2016.

Act, 2016.'that thc said complaint is not maintainable on this basis lhat !hcrc cxists no relat,onship ol builder_allottee in terms of lhc MOU, bv vinuc ofwhich the complainants are raising their grieva ncc' \II 'lhat as per ctause 3 of the MOIJ, the respondent was obligated to complete thc construction ofthe said proiect within 36 months from the datc of execution ol the MOU or ftom the start of construction, whrchever is later and apply for grant of completion/occupancv .crtificatc.

It is pertinent to ment,on that the Authority in complaint b..rrnre no.

132a of 2019 titlcd as 'Ron dvt r lvrhawon vs M/s Neo Developers Pva Ltd", pettaining to the sam€ proiect i.e.,'NEO square' vxlc ordcr dated 05.09.2019 held that the due date ot start ot consrruction for the project was 15laZ0I5 The Alrthoritv also grantcd a pcflod of 6 months as grace period.

Accordingtv, the due date or Complaintno's.1708 oi 2023,1700of2023&1699 o12023 DE? d.livery of possession in the present case is 36 (srace periodl to be calculated from 1512'201s mo.ths + 6 months and the due date of possession in thc insiant case comes out to be 15'06 2019' xlv. 'lhat the complainants as per the records had only paid Rs'15'10'452/_ against thc total due amount oi Rs 16'63'826/_ lt i5 to be noted that thcrc is still an outstanding due olRs l'53'374l- which is to be paid by th...mplarnanls rgrrn\t the unil booked' xv. lhal thc rcspondent is raising the vAT demands as per Sovcrnmcnt rcgulations.

That thc ratc at which the respondcnt is charging the VAI' dnrount is as pcr the provisions of the Haryana Value Addcd 'lax Act 2003.

Accordingly, the VAT amounts have been demanded from the complainants as the same has been assessed and demanded by th' competent authority. xvl.

I hat upon iailure to pay the outstanding dues aSainst EDC/IDC dated 16122015 and VAT du€s dated 3003'2017' the complainants rcqucsted thc respond€nt to adiust the said outstanding amount against rh. gainst rh.

Assurcd ltcturn payments from April 2017 onwards till thc said dcmands ofliDC/lDC and vAT becomes nil' xVIl 'lhat thc rcspondent had alreadypaid Rs6'39'750/_ as Assurcd Return to thc complainants till date aft€r adjustment ofEDC/lDC and VAT dues against the Assured Return paymenis' aBainst the sale consideration of Rs.1 6,63,82 6/' of the unit' 12. copics ofatl tbc relevant documents have been filed and placed on the record.

Their authenticity is not in dispute Hence' thecomplaintcan be ,l.crdcd on the basis oi these undisputed documents and submissions Complarn! no's.

1708 ol 2023 , 1100 ot 2023& 1699 t:i I. ,urisdiction of the authorlty 'Ihc contention of the respondent regarding rejection ofcomplaint on ground of jurisdiction stands r€iected.

The Authority obscrvcs that it has tcrritorial as well as subiect matter iurisdiction to adiudicate thc present complaintfor the reasons givenbelow E.I Territorlal,urisdlctlon As per notification no.

719212077'1TCP dared 14'12'2017 issued by Town and Country Planning Depariment, thejurisdiction of Real Estate Rcgulatory Authoriry, Gurugram shall be entire Gurugram District lor Jll purposc with offices situatcd in Curugram ln thc prcscnt case' thc projcct in questio. is situated within the planning area ol Gurugram District. lherefore, this authority has complete territorial iurisdiction ro ilcrL wrlh thc present conrplaint. li,!l subicctmatterlurisdlctioD la.

Scclion 11(41lal of the Act, 2016 provides that the promotcr shall bc r.spor)siblc to rhc allottecs as per agreement for sale Section I l[4]{a) is rcp,,)d!(cd as hereunder: HARER.

GURUGRAII tot b?,?<poostbh lot ott obhsatbn: tetpo^tbttit'P: ond JDn'uon' Lnlt Lhe Drcvra;s of he A.t ot rhP tutc' ond zsutot'ont nade Lhde|nde; ar b thP oltot@es os pe, the og?'nent tot \olP' ot tn the osciotion of ollonees, 6 the coe nov be till th' convevonce oJ o Lhe oDotlnp;(.

Dtat\ rt hund'n|\. a\ thP 'a'e nov bP' to the it,."*. .,n"'...- *-,. '...- *-,.o tte ot'ottotoa ol ottotke\ ot the ca Detentorthoriry, as the ca* otbe; 202:t , 170a il iARER GURUGRA[/ t:.

I.I, So, in vicw of the provisions ofthe Act quoted above, the Autbority has complcte jurisdictio. to decide the complaint regarding non_ compliance ofobliSat,ons by the promoter.

Findingson the obiectlons ralsed bythe r€spondent. obiection regardlng complainants being investor not allottees' Thc rcspondent has taken a stand that the complainants are investors and not consumers, therelore, they are not entitled to the protection of lhe Act and thereby not eniitled to file the complaint under section 31 orthe Act.l he respondentalso submitted that $e preambte ofthe Ad states that the Act is enacted to protect the interest ofconsumer of the r.al cstate sector.

The Authoritv obseraed that the respondcnt is corrcct in slating that the Act is enacted to protect thc intercst ot consumcrs of the rcal estate sector.

It is settlcd principl' ol intcrprctation that preamble is an introduction ola statute and stat's main aims & obiects ot enacting a statute but at the same time preamble cannot be used to defeat the enac$ng provisions of the Act' I:u(hcrmore, it is pertinentto note that any aSgrieved person can nle a complaintagainstthepromoterif thepromotercontravenesorviolatcs nny Drovisions ol the Act or rules or regulations made thcreundcr' Upon carclul perusal of all thc terms and conditions oi thc buycrs ngrccmcnt and thc tvl.o.u, it is revealed that the comPlarnants are buyers and have paid total price of R5,13,22,277l' io the promoter lowards purchase of an unit in the project of the promote'' At this .E. slagc, it is jmportant to strcss upon the denniion of term allottcc nndcr thcAct.the same is reproduced below for ready refcrencc: td,-otlotee' i .plauar to o teol 4@te qolect ncons thP petqn La dnom o otol. om o otol. aDo4nehl ot buldhq ostheco'" nar be' ha\ be olloued sotd lwheth as lftehatd ot teovholdt o' othery\e ;;;"';",,"" "; hc orcnotet ord ht tude\ the P4so4 \|ho ,ub,iqupnrtv i,qury't' wd otlo@ent thtoush sate !rcn:f?' ot an"is" i,t i*, ho. inctude o pe6on to whon such pto' ooa.LnenLot bu dna osthPtase nor be- sg^enon tent- l7 ln vr.w ot:bove-ment,on"a a"nnit,on of -dlloRee" as w'll a( rll thc tcrms :nd conditions of the buyer's agreement and MOU executcd bctwccn promoter and complainant, it is crystal clear thai thev arc allottccs as the subiect unit is alloBed to them bv the promotcr' 'lh' conccpt ol investor is not defined or referred in the Act' As per lhc dcfinition giveD under section 2 ot the Act, there will be "promotel' ,nd "allottce" and there cannot be a party havinga status of"investor" Estate Appellate Tribunal in its ordc' datcd no.

0006000000010557 titled as itls Srusnli Songam Devetopers Pw Ltit. vs soflapriva Leasing (P) Lts- And onr. has also hcld thattheconccpt ofinvestor is notdcfined or r'('rrcd rn thc Act.

Thus, the contention of promoter that the allottecs be'ng rnv.stors arc not cntitled to the protection oltbis Act stands rejcctcd' Conplaintno's.1708of 2023 , t?00 ol2OZ3& 1699 the proicct b.ins dclaved be.ause of force m'icure contendingto invoke the for.e maicur"laust' Thc Maharashtra Real 2'1.01.2019 in appeal r ll.

Ohir.tion rcgarding cn-(utrrstanccsand lrl Thr , c\Pn nJ en t/P romoter bas raised the contention that the construction of the tower in which the unit olthe complainants is situated. has bcen delaved due to force maieure circumstanccs such as Conplaint no's.1708 ol 2023, 1700o12023& 1699 nt 2rl23 1[ ordcrs/restrictions of the NCT as well as competent autborities' HiSh Court and Supreme Court orders €tc' However' all the pleas advanced in lhis regard are devoid of merit. of merit.

First olall, the possession of the unit in qucstion was to b€ offered by 7A'0'2017' Moreovcr' somc of rhc evcnts mcntioncd above are of routin€ in nature happening annually and the promoter is required to take th€ same i'to consideration while launchins th€ project.

Thus, the promoter/respondeDt cannot be given any lenicncy based on aforesaid reasons as it is a well settled principle that a person cannottake benefit ofhis own wrong' G.

Findings on th€ r€liefs sought by thc complainants: G.l Dircct the resDondent to pay the arrears of assured rcturn @RS22,5OO/_ pcr month fmn tulv 2019 till handln8 ovcr thc possession/leasing out the prop€rB 19.'lhc complainants booked a unit in the project ol the respond€nt and the MoU was executed on 1812 2014' The basic sale consideration of thc unit is Rs.12,75,000/' out of which the complainants have made a paymcnt of Rs.13,22,277l-.

As per the M'o-u dated 18'122014' the .omplainants have paid Rs'13'22,2771' vide cheque no 974089 dated 27.11.2014 drawn on State Bank of lndia against the toGl basic salc .onndcr)lion of Rs 12,75,000/'and the same has bccn dulv adnrittcd by thc rcspondent Thereafter, the respo'dent und€rtook to pay d monlhly assured return of Rs'22,500/-w'e'f 1812 2016 The relevant clause ofthe MOtJ dated 18'12'2014 has been reproduc€d below: Complaintno's.170Bof 2023 , 1700 ol 2023& 1699 ol2023 'thul agoinst the Lotol bosic sote cansideration of Rs.12'7500o/ (Nupee\ l wlve t,okh kventy FNe Thousond Onl!) detemhed os pet chuk i obove the AlloLt?F) har, poid unLo conpony uPon/or priot to the deNtian ofthis Mou, on onount ol R113,22.277t Oupe6 Thi/teen Lokh ruenq Two Thousond 'two Hundred SevenE Seven Onlv) vide cheque No 974039 & 97408a dared dated 27.112014 druwh on sta?

Eonk ol lndio bwards odvonce/part nnsidetoLian ol the unit, the rqeiPt th. rqeiPt th.reot conpon! herebv odnn\ ond acknowledgd 'rhe Codpony sholl Poy o monthtt osured rctt ol Rt'22,so0/ (Rupees lwenty L||o thousond Fiee tlundred Onlv) on the totol anount rccetvetl wth rlliL lron la 12.2016 olter detluction oJrox at Souftc ond se'vicc to\' tc\\ ot tn! other tev! ehtch tsdueond pa@ble bv the Atloltee(S) Lo the conpun! ond Lhe botonce sole .onsi.leralion sholl be Potable bv the Allouee(s) ta Lhe canpony in occonlahce with the Poqent Schedub on^eNed os Anne'urc 1 1he ohthl! osured return sholl be paid b 6e Allott@(s) until rhe oJ the l6t lea* on the sokl uaiL this sholl be paid Iron 1A'12'2016 on||otds uhtit the cadnenenenr of the fi.rt leoe on the Nid unit IEnphaissu9Pliedl 20.

Thc complainants i. the present complaint seek relieflor the pending assurcd return.

The plea ofthe respondent is otherwise and stated that the Authority docs not have thc jurisdiction ofgranting thc said re[ct .

Assurcd return 21. lt is plcadcd that the respondent has not complied with the tcrms and conditions of the agreement.

Though for some time, the amount of assured returns was paid but later on, the respondent refused to pay thc same by takinS a plea of the Banning of unregulated Deporit schcmcs Act, 2019 (herein after referred to as the Act of 2019)' But thrt Act docs not create a bar lor payment of assured rcturn' cvcn altcr coming into operation and the paymcnts made in this regard arc protccted as per scction 2(4)tiii) of the above-mentioncd Act' .ARER Complaint no's.

1708 of 2023 , 1700 of 2023& 1699 Itowcver, the plea of respondent is otherwise and who took a stand thaL lhough rl paid thc amount of assurcd returns and did not paid aficr coming into force ofthe Act of2019 as it was declared illegal.

22.

The [.4.O.U dated 18.12.2014 can be considered as an agreement lor salc interpreting the definition of the agreement lor "agreement lor salc" undcr sedion 2(c) of the Act and broadly by tak,ng into consideration the obiects of the Act. f the Act.

Therefore, the promoter and alloucc would be bound by the obligations contained in thc mcmorandum ot understandings and thc promotcr shall b. r.sponsible ior all obligatjons, responsibilities, and aunctions ro thc alloncc as per the agreement ior sale executed inter-se thcm under scction 11(41(a) of the Act.

An agreement d€fines the rights and habilities ol both the parties i.e., promoter aDd the allottee and marks thc start of new contractual relationship between them.

This contractual rclationship gives rise to luture agreemcnt:r and transa.tions bctwecn them.

One ofthe integral parts ofthis agreemcnt, thc lcrerdated 18.12.2014 is the transaction ofassured rcturn intcr_sc pailics.

Thc aSreem€nt forsal€" aftercoming,nto lorceofthis Act (i.e., Act of 20161 shatl be in the prescribed form as per rules but this Act oa 2015 does not rewrit€ the "agreement" entered between promoter and alloucc prior to coming into force of the Act as held by the Hon'ble Itombay High Court in case lveel&omal Real ors Suburhan Priva,e Complaintno's,1708oI 2023 , 1?00 012023& 1699 df2023 Limited and Anr. v/s Uaion ol lndla & ors., (writPetition No.

2737 or 20171 decided on 06.12.2017.

23. lt is pleaded on behalfof respondents/builders that after the BanninS of llnrcgulatcd Dcposit Schemes Act ot 2019 came into forcc, thcrc is bar for payment of assured returns to an allottee.

8ut again, thc pll:a takcn in this regard is devoid of merit.

Section 2(4) of the above mentioned Act d€fines the word ' deposit' as on anount of noney rcceived by way of on advance or loon or in any other lorm, br ony deposit taker with o pronlse to return wherher ofter o speciled pe od or olhe*rise, either in cosh or in kind or in the form ol o specied servrce, tltth orwithoutany beneJitin the form ol intercst, bonus, profrt or in ony orhet form, but does not include: t, an anount received in rhe.ou\e ol, or for the Purpoe ol buen6\ und beotingo genuineconne. uineconne.tion to such bunns tncludi^g li) oavonce rceived in connqtion wth considerction ol an inhorobtc p.opetty, under on ogr*n nr or drrangehent subject to the condition thot such odvonce is od@red ago)rct such innovable prope+ as speciled in terns of the ag.Mqt or arronqn@t 24 pcrusal ot the above-mentioned deffnition of the term 'deposit', shows that it has been given the same meaning as assigned to it under thc Companics Act,20l3 and the same provides under scctaon 2(31) rncludcs any rcccipt by way oldeposit or loan or in any othcr form by a company but docs not includ€ such cateSories of, amount as may hc l)rcscribcd in consultation with the Reserve Bank of India- Sjmilarly rulc 2(c) of the Companies (Acceptance ot Deposits) Rules, 2014 dcfincs the meaning ofdepositwhich includes any receipt ofmoney by Complaint no's.1703oi 2023,1700oI2023&1699 o12023 way oldcposit or loan or in anv other form by a company but does not (i) as on odvdnce, accounted lot in onv onnzr wha\oever' rccetved in connection with @nsid.rotion lor on inhovoble propertv tnto' an advoae t'ceived aad o\ alloded bv on! sP'torol rcqulator ot n ot n lante wtth d e.no4\olCen(ol ot S@t?

Cove'nhcnt' 25.

So, kceping in view the above_mentioned provisions olthe Act of2019 and the Companies Act 2013, it is to be seen as to whether an allottce is cntirlcd to assurcd rcturns in a casc where hc has depositcd substantial amount ofsale consid€ration against the allotmcnt of a unit wnh thc buildcr at the time of booking or immediatelv thcrcafter and Js agrecd upon belween them. ,6 Th. (;ovcrnmcnt of tndia enacted the Banning of unregulated Deposit 5.hcm.s Act, 2019 to provide lor a comprehensive mechanism to ban rhe unrcgulated deposit schemes, other than deposits taken in thc o,dLniry .oursc ol business and to protect the intc'est ot dcposilors in,1 1or nl.rtrcrs connccted therewith or incidcntal thcrcto as dclncd Ln s.criotr 2 [4' ofthe RUDS Act 2019.

Act 2019.

27 lhc rr)oncy was taken by the builder as deposit in advancc 'rgainn ;llormcnr ot immovable propertv and its possession was to be offered rrllhrn a ccrtain period.

However, in view of taking sale coBsideration by w.ty ol advance, the builder promised certain amount by wav of issurcd returns for a certain p€riod So, on his lailurc to Iultil (h'rt .orrfritnr.nl. rhc allottcc has a right to approach thc authorilv for , edrcssal ol his grievanccs by wav of filing a complaint Complajnt no's 1708 or 2023 , 11A0 of 2023& 1699 ot2023 2u.

The project in which the advance has been received by the developer lion) thc allotices is an ongoing project as per sectjon 3(11 ofthc Act oi 201s .n.1. thc samc would fall within the ju.isdiction of thc Authority lor giving thc dcsired relieilo the complainants besides initialing pcnal procccdings.

So, the amount paid by the complainants to the builder is a regulated deposit accepted by the later from the former against th€ immovable property to be kansferr€d to the allotte€ later on' 29.

Thc money was taken by the builder as a deposit in advance against allotment olimmovable property and its possession was to be otfered within a certain period.

How€ver, in vi€w of taking sale considcration by way or advancc, th€ builder promised certain amount bv wav or :rssurcd retu.ns for a certain period.

So, on his tailure to fulfil lhal .ommitment. the allottee has a right to approach the authority for rcdrcssalofhis grievances bv wav offiling a complaint' 30.

Thc Authority under this A.t has be€n regulating the advances received u ndff th c proiect and its various other aspects So, the amount paid by thc complainants to th€ builder is a regulated d€posit accepted bv thc laircr from thc former against the immovable property to bc tr rnslcrred io thc allottec latcr on.

Ifthe project in which tho adv'nc' hds becn reccived by the developer irom an allottee is an ongoing projc. ing projc.t as per section 3(1) of the Act of2016 then, the same would fall withrn thc jurisdiction of the authority for giving the desired relief to th. complainant besides initiating penal proceedings' The Authority is RER :__.

32.

The r.spondent is directed to otrer possession ol the unit to the complainants, within 60 days alter receiving the occupation certificate liom the concerned authorities.

The complainants/allonees dre directed to pay the outstanding dues, ifany.

G.IIL R€strain the respondent from ent€ring into l€ase de€d with third party till the completion ofthe proiect.

33.

The Autho.ity is of the view that since the occupation ce.tificate in respect to th. project has not been received yet and without receiving the occupatjon ccrtificate, the premises cannot be presumed to be fit for occupation.

The respondent is directed to not forcc the Complaintno's.1708 of 2023,1700of2023&1699 al2a23 G.ll.

Direct the respondent to handover possession in habitable condition afler the obtaining the Occupation HARER GURUGRAN/ of the view that since the occupation c€rtificate in respect to the project has not been received yet and thus the respondent cannot execute a lease deed with the third party.

The lease deed executed on 24 07 2020 holds norcleva.ce here.

31. tlence, the Authority directs the respondent/promoter to pay assured return to the complainants at the rate of Rs.22,500/' per month from rhe dere i.e..

18.12.2016 till rhe commencement oithe first lease on the said unit after obtainins the occupation certiflcate as per the nremorandum of understanding after deducting the amount already paid on account ofassured returns to the complainants. complaint no s, 1708 of 2023 , 1?00 012023& 1699 complainants to execute any lease deed prior to obtaining the occupation certificate H.

Directions ofthe authority 34.

Ilence, the Authority he. hority he.eby passes this order and issues the 'ollowing directions under section 37 of the Act to ensure compliance ot obligations cast upon the promoter as per lhe lunction entrusted to the authority under section 34(0: i. l'he respondent is directed to paythe arrears ofamount ofassured relurn at the rate Ie., Rs.22,500/ per month lrom the date ie' 18.12.2016 till the commencement of the first lease on the said unit after obtaining the occupation certificate as per the memorandum oi understanding, after deducting the amount already paid by the respondent on account ofassured return to the complainants. ii l-he respondent is directed to pay arre'rrs of accrued aslured rcturn as per MOU dated 18.12'2014 tjll date at the agreed rate within 90 days from the date of this order after adiustment ol outstandinq dues, if any, from the complainants and failing lvh'ch that amount would be payable with interest @9% p'a' till thc date of actual realization. iii l-he respondent is directed to offer possession olthe unit wlthin 2 months from the date ol obtaining occupation certificate from the ..n.erned authorities.

HARERA GURUGRANI 36.

37- 35.

I GURU 'l'he torce the complaiDants to obtaining th€ occupation v.

The whi respondent shall not charge anything from the complainants h is not the part oithe agreemenr of sate. ision shall mutatis mutandis apply to cases mentioned in para placed in the case file of each nsigned Dated:14.08.2024 HARE 3 olthis 38.

Filebec GIIRUGRAI\ Codplaintno's,1708of 2023 , 1700 of 2023&1699 ol2023 t 1 o,nJu t,.l*a 1 Memher \ l Regulatory Authority, t;unrt/m Haryana Rea