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

Eglallr9]iryg!

ItEI ORE 1'HU HARYANA REAL ESTATE RF'GULATORY AUTHORITY, GURUGRAM comPl'lntno Dat€otdeclsion R/o s] No.z 3,3 Chowk, Newsurainagarl', rvl/s Nco l)ev.bpcrs Rcgd. oflicc: :12 ll Ncw D.lhi I10005 r 169a of2023 : I1,08.2024 CORAM: Shr lshok Srngwan APPEARANCEI sh.

Raiinder Singh (Advocate) sh V.;kat ttao (Advocate) ORDER I lhis conrplaint has been filed by the complainants/allottecs under s.dror 31 ot thc ltcallistatc (Regulation and Developmen0 Act' 201(r lI slo]l th.

Act) flId !v(h rul' 2il oI lhc tt'rynnr ll(ll listrtc llnguL.rtton Jn.l D'vcloPmcnl) llulcs' 2017 {in short' th' Ruletl lor !,o!atroD ol scction 11(1)[a] of rhc Act whercin it rs rDl" 'r'o pr.scnbcd thar the proftotcr shall be rcsponsible for rll obliBations' -E Unit f)' M 'I 2.

3.

EI \N,,1 I ,nsibrlitres and func ons und i and rcgulations made therer )ncnt ior salc cxccutcd in'ers and proicct rclated d€tails particulars of unit details' salr :omplainant, date of ProPosec od, iIany, have been detailed i il;.t-1618"ffi-l er the Provislon of the Act or the rnder or to the allottees as Per thc . .onsideration, the amount Paid bY L handing over the possession' delay n rhe iollowing tabular form: "Neo Squ.re sr'ttr 1(r'l r\ ! orr,* prcrmt .r t1'T''1 - l{t lr,\ .L['{fre,.l ke8r'tered 1oq of 2o17 LDated 2408:1017 O2 of2008 .20011 Mcnrorandum of undersranding 25.12 2014 (As on Pasc no.19 olc'mPhLntl tl I t Comptainl No.

1698 ol 2023 'the conDan! sholl @ftPlete the construction of the ettl Ior sronL d Bu dis/CanPte\ wnhn dhrh the sotd <no.e B to.oted wthia 15 nonths lton the dote ol .xecutiod oJ thit rni the natt ot ,li^"""'o, *t"n""" " '""' "'a 25.r2.2017 Iaalculated 16 months from the d'r€ oi :xecunon or M.o.u dared 25'12 zol4l com pletior /Occu Pan q ce ili'ote ddmitsandacknowledees orRs.13,22,277l (Rupeeslhrrlcci L'kl Twenty Two Thousand Two Ilundrtd sevenry S.v€n only I vrde 'hcquc n' q?ane; and 9?40q3 dated 27') l'2014 ;rawn on State bank of i'dia' towards ,dvan. rds ,dvan.e/prft cons'derahon ol the un't' rhe recernr ther€ol Companv hcrchv The companY shall PaY a monlhly ,rsured .cturn oi Rr'22,s00/- (Rup'rs 'rw.ntv lwo 1'ho!sand Frv' llun{lrcl onl!l;n rhc torrlamoun' t'c'!cLl wil ei;ri rrom 25 l2 2or6 aller dc'rudnn ofl3x al Source and seNice lax tossor HAR CTRU l2 t.J I a.

J E CI any orhc; lcvY whrch \ rluc rnd (As on prgc no 23orcomPlaLnl) (As on paEe no 23 orcomplain0 (As on page no.23 olcomplaLno 24 Ai 2420 (As on Pase no 93orreplY) (,^sonpaB. no 135 orrrnlY) payrble hY rh.

Allottccl\l Ln lhr Company 'n ,c.ordan(c wnh thc paYmenr Sche'julc ann'rcd d' annexure l.

The monrhlv as\ured relurn shall be paid to the Allotiee(sl lron 25.12.20L6 onwards till th' of first lease on the nt re'iuost o. a..ountofvAl' umplrtnanl ha\ madr thc lollowtnq submrssron\' thc complainanE Mrs.

Prerna Ramawat and Mr'Devender Saini chascd thc unit on 25 12'2014' Later on 04 09'2017' Mrs Kanta ir wns also added as a co_applicant Thc respondent i'c ' i4/S Neo velopcrs Prrvatc Limited is engagcd in the btrsiness actrvitics p omnlaiol No.

1698 o1202:l relating to construction, developmen! marketing & sales ofvarious r) pc\ ot rclrdenrral & commercial properlies' ll 1hal in or around Novcmbcr 2014, the complainanls mct thc rcprcscntativc of the respondent who explained the prolcct to !hcm' Latcr, ihc rcprescntatives of ihe respondcnt stated that the project consrsts ofmultiple towers having dedicated space for retail' officcs' restalrrants, lood court, sewice apartment' hyper'ma't and cinema lll lhat the respondent assured the complainants that they have already obt3incd allthc mandatory permissions/€learances to construct the prciect and lhc samc would be constructed strictly in contornrity wilh rhc sanctioned plans' That thc construction oI thc projcct would be completed within 36 months ofpurchasing the unit' lV. unit' lV.

That the respondent induced the complaints to purchase the unit undcr the Assured Return Plan wherein the respondent undertook to make the payment at the rate of Rs 90 per sq' ft per month for the arca purchascd if full payments towards the unit are made by thc conrplaltrrnts at thc time of booking or al rhe time of cxccution ot Mcmorandum of tinderstanding (MOtJ)' V l hat $e complainants entered into a Memorandum olUnderstandrne with the respondent on 25122014 and subsequ€ntly a Build€r lluycr Agreement was executed on 07'01-2015' The complainants have paid a sum of Rs'13,22,277/_ towards the conside'ation ofthc rE l l;* unit, through two cheques, firstly vide cheques no 974094 and 974093 which were dutv accepted by the respondent lt was agreed Lrniler th.

MOU that a monthly return of Rs.22,500/- shall be payable asAssured Return from 2512.2016 Vl.

That thc respondent sent an Email on 15.12.2015 raising the cunrulativc dcmand ol Rs.4,74,000/ ol EDC and IDC for unit no 0f) .07,08,09 on 3'd floor ofthe proiect and Rs.1,18,500 was charSed rbr cach unit- The said demand was dulv tulfilled by the complainants by making the cumulative payments of Rs'4,74,000/' through monthly assured return PaYmenL Vll.

That the respondent demanded VAT Fom the complainants several tinrcs in rcspcct oathe same un,t despite the fact it was paid at lhc rim. ol vcry first dcrnand.

The respondent raiscd the dcmand lowards VA'l amounting to Rs 69,675/- on 30 03'2017 and thc samc w.s paid through adiusting the said amount of VAI in monthly ,ssured return amount.

Vlll.

That thc truth of the assurances made by the respondent surlaced whcn the respondent started delaving the monthty assured returns and ultimatcly, the payments of assured return were completely sroppcd and are due since luly,2019 Thai the mala fide intcntions ol thc rcspondcnt also became conspicuous whcn thc rcspondcnl conrnrunicatcd ns unilateral decision of not paying anv assurcd rcturn tillthe completion of the projc the projcct. ,IN' RER IX That thc paymcnt towards VA'I was made by buycrs in 2017 has not b.en dcposited with the concerned authorities by thc respond'nt ,nd duc to the said reason, the demands oi VAT are bcing madc \. again and again from the buyers 'fhat the responde.t sent an email dated 09'042020 to the complainants in order to obliviate itself lrom its responsib'liry of paying monthly assured return.

The respondent is forcing the complainanrs to sign thc "Lease AssiSnment lro'm" bv which thc rcspondcnt rntcnds to teasc out the unit to a third party and has also inscrtcd a clause according to which after the exccu(ion of Lcase Assignment Iorm, the respondent will be obliviated from its responsibilitytopaythemonthlyAssuredReturn' 'lhat dcspitc assurance of comPletion of construction of the proiect within 36 months of purchasing the unit or from thc co mcncenrent of coDstruction, the construction has still not been conrpletcd cvcn after passagc of almost 8 years' 'lhc struclurc of only otfjcc building is constructed butwhich isalso nowherc ncar to complction.

The building wherein food court and rcstaurants situates has bee. constructed up to znd floor only and there is no nBn o, conslruction of the rower wherein tNOX nrne scwiced apartment, infotainment and entertainment zo'e as were shown in the brochure. lt has also come into complainants" knowlc.lgc that lhc respondcnt has not cvcn rcccivcd lhc I'ccnsc \I GUR.JGRAI/ 6rt"-i* ,6r".r,o,: -] GJR.]GRAI'/ from the concerned authorities to construct the tower/building hesides omce building.

The respondent has tu'ther cheated bv sclling food court and restaurant units to other buyers on 2nd and ith lloor ns w.ll.

Xll ThrL thc r.spondcnt has no intcntion to complctc rhc Prolcd as no fc nission is available to construcr thc Project bcvond thc oiilc' rower. lc' rower.

Thc complainants have filed a complaint beforc the llconomics Ollences Wings Delhi on 16'03 2022 whercin flR No 0046/2022 has bccn filed under sections 406/420l12011 against thc r.spondcnt.

Xlll Lh.rL rro !r.sh construction has bccn carricd out in thc prolc't srn'c 201! lh. completion ccriili'atcofthc respondcnthrs bc'f d'nrrd o,, scv.ral occasion and on l5'12'2021 the reprcsenrrrrvc ol thc rcspondcnt has admitted before thc S'lP' Curugram thal lhc proicct rs not complete and th€y had withdrawn the applicatron se'king conrplclion certiticate in the ycar 2020' \lv ]'hirl th. comPlaiDants arc constrained to filc thc prcscnt conrpl'rrnl sccking rhc Pavmcnt of assurcd rcrLrrn 't thc ralc ot Rs'90 P(f sq l.rt rntu,rnlrng lo |ts 22,500 lor unit admcasuring 250 sq lt' sLnc( luly 2019 lilt thc handing ovcr the possession/ lcas' olrr ol 0rr t,rnt,'rl) rll, I rhn i omPlcLion ol ln( \ on!rr ur linn' (1.

Relicfsought by the complainanil l'l'licrompl.tinanthassougbt lollowingrclier(sll l E) aonrDlr nL N. )698 ol 201 I i.

Direct thc .espondent to pay l\ssurcd Retur.s @R5.90 pcr sq'ft pcr month amounting to Rs.22,500/-from lulv 2019 tillhandinS over the possession/leasing out the property after completion' ii.

Direct the respondent to execute the Sale Deed after the complction of thc pro)ect in iavor olthe complsinant' iii. llcsrrarn thc respondent from entering the lcase dccd with :jrd party till lhe completion of prolcct and handing ov({ lhe possession to lhe complainant On the datc of hearing, the Authority explained to the rcspondent/promoter about the contraventioDs as alleged to have h..n .ommitted in relation to section 11(4) (al of the Act to plcad 8!rlry or not to pleadguilry.

D.

Rcply by the r€sPondent.

4,.

Llr. rLrspo.dcnt has contcsted the complaint on the lo!lt)$rn8 rcgularisation of rcal estate proiects, and the dispute resolulion bctwcen builders and buyers . d buyers .nd the reliefs sought by th€ complainants cannot be constnred to fall within the ambit of the Act' 'I hat thc complainants are investorsand notallottees' Il.'lhccomplainants withthe intenttoinvest inthereal estatcsectoras alr arvcstor, approached thc respondent and inquir'd about the projc.t ic., "NEo SQIJARf,', situated at Sector-109 Gurugram' llaryana.

That altcr being fully satisfied with the projcct and the I That thc Act 2016 was Passed with the solc intcntiDn ol f)L' lil,hifi;16rs--'it ril approvals thereof, the complainants decided apply and filed an ,rpplic.tion lorm on 15.7220-14 whcrcby sceking allotmcnt oI prioriry no.

8, admcasuring 250sq.ft ofsupcr area on thc 3rd Uoor ol thc rcstaurant/food court space having a basic sale pricc oi Rs' 12,75,000/- and opted lorthe investment return plan lhat a Memorandum of Understanding dated 2512'2014 was .xecuted between the parties, which was a completely separate understanding between the parties in regards to the payment of assurcd rcturns in lieu of investment made by the comPlainants in rhc said proiecl and leasins of the unit/space thercot' As per thc mulually agrecd terms between the complainanG and thc rcspondcnt, thc returns we.e to be paid from 25'122016 till thc ..mmcncement offirst lease.lt is also submitted that as per clause 4 ofthe MOt,, the complainants had duly authorised the respondent to put the said unit on lease lhat the comptainants voluntarily executed the Buyer Agreement daled 07.01.2015 after having full knowledge and being well satisfied and conversant with the terms and conditions of the Buyer ]h:rl the rcspondcnt had becn paying the comrnittcd rcturn of lls 22.500/- for every month to the complainant without anv d'lay srncc 25.12.2016.

It is to note, that as on luly 2019, the complainants had alrcady received an amount of Rs. unt of Rs.6,34,500 as assured return' Ilowevcr, post Iuly 2019, the respondent could not p'y rhe agreed ssured Returns due to prevailing legal position wr't banning of It L\ lqqllrl1lfr9 returns ovcr unregulated deposits post ihe enactment of the BUDS Vl. lhat lhc obligation of payment of assured return by the rcspondent to the complainants was only till thecommen'enent olthe first lease on thc unir' Thc first lease has already bcen 'xc'utcd with M/s Avan Il,ods on 2407.2020 'lhereby' the respondent has duly lulfillcd its obligations in terms of the MOU' The since as per tbe t€rms oi the I\4OU, the rcspondenthas already fumlled itsobligation ofpaymentof assured r€turn and that the first lease has also been executed' the prescnt compla,nt becomes infruciuous' vll l hat after the commencement ofthe Ftrst t€ase' the respondent has duly intimated the complainants about the same vide letler datcd 01.10 2020 and also bv various tetephonic coDversations rcgarding thc samc and have further s€nt a Letter for Assignment oI Lcasc torm ro thc complainants to come forward and siSn th€ lcase assignmcnt' as had bcen agrsed in the MOU' How€ver' the comPlainants did not comc to sign the lease assignment and therefore failed to fulfil their part of obligations' That, since the comDlainants did not come iorward to sign the lease assignment' the respondent sent reminder lcttcrs dated 1012'2020 and 07122021 to siSn the Leasc Assignmcnt llorm' Vlll.'lhat inthc Mcmorandum oiUndersbnding'therewas ncverany prc' condiiion olobtainiDg thc Ocrupation Ccrtificatc for thc exccution oI thc l.case decd The respondent has already executed the first lcasc dccd and dulv scnt the lnvitation to sign lease assignmcnt to thc rl lARER GURL]GRAN/ .RER |c*r**""r."r,r!l complainants with reminders, as per theterms otthe MOU' llowevcr' thc complainants have failed to come forward' IX. rward' IX. lhat it is an established practise in the reatestaie sector' wherein the promoter executes a Lease Deed w'th a lessee for a future proiect cvcn beiore the completion of the said project lnfact there is no bar by any statutory provision on entering into such undcrstanding lh(fc havc bcen numcrous instances where renowned developers hav. adopted such a practisc' Iew ofsuch instanccs/ arc rcproduccd hcr.rn, which will also prove that it is legauv valid lo lcasc out r prcmiscs before the completion ofthe proje't: o. 'Ihat the real estate firm "Embassy Group"' one of the leading .ommcrcial real estate devetoper in its statement released on 08 0a.2018 said it shall develop a 11,00'000 sq feet' built to suit facility "Embassy Tech Village" proiect in Bengaluru in phases' with thc first phase expected to be delivered bv the first qua(er ^r 2021. ln the same statement it was also mentioncd that thcy havc signcd a long-terrn lease agreemcnt with lP Morean tor commcrcial oftice space at the same proiect lt is notcworthy mcntion herc that th€ said stat€ment was released bv thc Embassy Group on 08082018' when the project was undcr construction and the expected date ofdelivering the first quarter was 2021. b.

Srmilarly, the Embassv Olfice Parks RFIT leased 1'8 million sq' il' across 25 deals including a 5-50 lakh sq ft' pre-commitmcnt iionr lP Morgan at timbassy Tech Village in the lunc quancr or \l 2022. ltcnce, it proves that the executing a lease deed before the completion olthe proiect is valid in the eves otlaw r. ln.r ncws article,t is slalcd that real estate firm Dl'| has leascd ,ndtly 100.000 \q rt' oltice <prre lo lhrcc compan'e5 rn Curugran.

Maioriry of the space has been takcn a( Dl'li Downtown, an upcoming project in Curgaon' lt was further statcd thatthe leasing is part ofthese company's expansion plan oncc the current Covid'19 situation stabitises The building where space has beer taken is under construction and is expccted to be readyby December 2021' d. r 2021' d.

In another articl€, Embassy Group stated that it has lcascd I15,000 sq. ft. ol offi'e space to automotive softlvarc companv csia Technologies at Embassv Taurus 'techzone (llTrz) in 'Irivandrum in April 2022 betore the compleiion of the prolccl which is scheduled forhandover in April2023' ln vicw ot the above said submisslons' it is evident that executing a lcase deed before th€ completion of a proiect is a common practicc adopted by the developers/promoters in the real estate scctor r'r,"."io-,-tft" .""pota"nt cannot be held liable to pay any assured rcturns to ihe complainants after thc commen'emcnt of thc flrst lcasc, any payment thereol in fact will also be contrary to rht prcvailing laws and violation thereof' rhat th; rclief of assured reurn is not maintainable before the Aulhority upon enactment of the BLDS Act That anv direction for payment of assured return shall be tantamount lo violation of the provisions ol the BUDS Act' XIl. l'hat thc Aulhority is dress€d with the jurisdiction to adjudicate upon all rhc complaints arising out ot failure of either party to fulfil the tcrms and conditions of the Agreement for Sale (Buyert Agreement).

Ilowcv.r, in the present matter the complainants are relying upon thc tcnns of MOt, which is a distinct agrcemcnt than thc Buycis ASrecment and thus, the M0U is not covercd under the provisions ot rhc IlHRA Act, 2016. 'lhat the said complaint is not maintainabl. on this basis that there exists no relationship ofbujlder allottce in tcrnrs of thc MOU, by virtue of which the complainants are raising th.ir xlll. l hat as per clause 3 of the MOU, the respondent was obligatcd to .omplctc rhc construction ofthe said proiect within 36 months from thc datc oi execution of the MOU or from the start o[ construction, whichcver is Iater and apply for grant of completion/occupancy ccrtrficarc It is pcrtinent to m.ntion that the Authority in conrplainl bearing no. earing no.

1328 of2019 titled as " Rom Avtar Niihawoa vs M/s Neo Developers Pvt Ltd', pertaining to rhe same project i.e.,'NEO Square' vide order dated 05.09.2019 held that the due date of start or construction for the project was EJZZUL The Authority also sranlcd a period of 6 months as gmce period Accordingly, the due date of dclivery of possession in the present case is 36 months + 6 monlhs (gracc pe.iod) to be calculated from 1512.2015 and thc due datc ol possession in thc instant case comes out to be 15.06.?.019. \lv lhri lh. complainants as pcr thc records had only p.rrd Its.

1 5, 1 0,452l against the total due amount of Rs 16,63,826/_ lt is t(, h. notcd that therc is still an outstanding due of Rs 1'53'374/_ which ,\ to bc paid by the complainants againstthe unit booked' xV l hat thc respon.lent is rais'ng the VAT demands as per Sovernm'nt rcgulations 'fhat th€ rate at which the respondent is charging the VAl amou nt is as per the provisio ns of the Haryana Value Added Tax Act 2003.

Accordingly, the vAT amounts have been demanded from lhc complainants as the same has been assessed and demandcd by th c com Pctcnt autho ritY' xvl lhat uPon farlurc to pav the outstanding ducs against !:DC/lDC datcd 16.12.2015 and VAl ducs dated 3003'2017' thc complainants ..quested the respondent to adiust the said outstanding amounr against the Assured Return payments from April 2017 onwards till thc said demands ofEDC/lDC andVATbecomes nil' xVll l hat the rctpondent had already paid Rs6'34'500 to thc complainants till date afrer adiusrment of ducs agarnst the Assured Return payments' .onsrdcrl]tion of Rs'16,63'826/- ofthe unii 7.

Coprcs dlxlllhe relcvant documents havc been filcd and placcd on lhc rIor(l 1'hcLr .uthcnticity is not dispute. tlcncc, thc complaint can l)r dccidcd on the basis ot lhcse undispuled documcnts and strbnrissrons made bY the Pa'ties' E. lurisdiction ofth€ authorlty 'lh. orlty 'lh. submission ofthe respondent regarding reiection of'omplaint on ground of jurisdiction stands reiected- The Authoritv obseru€s that EDC/IDC and VA1' 2023 rTil (f I has territorial as well as subiect m:tter iunsdiction to adiudicate thc Prcscnl conrplaint for thc reasons given below' li.

I Tcrritorial iurisdiction I As p$ notifrcation no' 1/9212017_lTCP ditcd 14 12 2017 rssued by 'Li$r !nd (lountrv l'lanning Dcpartment' the jurisdictron ol llcal t,star.

RcBulatory Authority, Gurugram <h'll bc cnlirc Gurugram llisl ct for all purpose with offices situetcd in Gurugram' ln the prcscnt casc the project in question is sjtuated within the plannrng ,rt.r 01 0urugram District Therefore' this authoritv has complcte L(frlor r,rl lLr.isdiction to dealwith the present complaint' ll tl subitct ma tter iurisdiction ! s.(rron 1l(41(a) oltheAct'2016provid'srhatthcpromot(tshallbr rfspor)srblc to thc allott'cs:s per agrccm'nt for salc scctjon 1l (41(al is rcProduced as hcreunder: \Piion11 i)ttt," p,.'"t" 'nar oron' e'Pa'\t"tr'"' o1d tn\' ;u1' l ,^ ,"- ^ , ^.^ ot ,n" a ' ot 'r" tute- !'d 'Pquta$r' tn"o' ,l ;:,: ;. ;;;"i ;'',;,, " ;,,;; ;, " a. pq, hp ou' p* n'! "' t'f' t ^ i. ; ,, "..,",,",. . ".r ,d.eno!

D" ",',4' {'I' "' 1 ',,,"'. .' ', -,-",' ',,':,,,;'i',,,',, ,,:' 'rLr ' u' th"un'ni rtrr\ r' th' o: -,,r' d ',dd] l)| 10 S,). in vicw ofthc provisions ofthe Aclquoted abovc' the Authority h'rs complct. iurisdiction to dccrde lhe complaint reBardrng n'n co fr pliance of obligations by the promoler' i.

Findinss on the obiections raised by the respondent' Iq!!,ue I F.l.

Obie.tion rcgardi.g the p.olect belDg delaved bectuse ot for'e maleure .ircumstances ard cont€ndinsto invoke the fo'ce maieurc 'ltuse' 1 l.'lhe rcspondent/promoter has raised the contention that the delivery ot posses:;ion has been delaved due to rorce majeure circumstanc€s such as orders/restr,ctions of the NCT 3s well as competent authoritics, l{igh Courtand supreme Courtorders etc' llowevcr' all thc plcas adv plcas advanccd in this regard are devoid 'f m'rit First of all' thc possNsion oi the unit in question was to bc offercd by 25 12'2017 'lh. r!cnts nrcnrioncd .rbove are of routin' in natur' h:lppcninB annually and the promoter is required to take thc $mc inrc Lons,dc.rtktn whrle launching the proiect.

Thu5, thc promotcr/respondent cannot be given anv leniencv b3sed on thc aforcsaid reasons and it is a wellsettled principlethat a person cannot takc bencfit ofhis own wrong.

C.

Findings on the reliefs soughtby the complainant C.l Di.cct thc rcspondent to pav tte assu'ed rcturn @[s22'500/' from luly,2019 till the hadingover ofpossession lz. rhc cornprainant booked a unit in the project of thc respondcnt and rh.

MOU w.s executed on 15.12 2014 The basic sale 6onsidcration of rh. rnit was Rs.12,75,000/_ out of Rs.1 3,22,277l-.'rhe complainant in tor thc pending assured return. which the complainant has Paid the present complaint seeks relief .

Assured return lr is plcadcd that the respondent has not complied with the tcrms and conditions ol the agrccment. lhough ior somc time th' amounr of rs r.d rcturns was paid but later on, the respondent rcfuscd to pay HARER ] GLIRUGRAI/ rhc samc by taking a plea of rhe Bannirg ol unregulated Deposrt schcnrcs Act, 2019 (hercin aftcr refcrred to as the Act of 20191' Ilut lhal Act docs not create a bar for payment of tssurcd rcturns cven aftcr coming into operation and the payments mad€ in this regard arc protected as per section 2t4)(iii) of the ahove mentioned Act' Ilowever, the plea ol respondent is otherwise and who took a stard it paid the amount ol assured returns and did not paid into force oftheAct of2019 as it was declared illcgal l Thc M.o.u daicd 21.03.2013 can he considercd as an agr'cmcnt for salc intcrprcting the definition of the agreement for "agrctmcnt tor salc'undcr section 2(cl of the Act and broadlv by taking into . ing into .onsideration obiects olthe Act Therefore' the promoter and allottee would be bound bv the obligat'ons contained in the memorandum of understanding and the promot€r shall be responsible for all obligations, responsibilities, and functions to the allottee as per the aer;ment ror sale executed inter'se them under section I1(4)(al or tfrc l.t. lrn agreement aefines the rights and liabilities of both thc partics r.e., promotcr and the allottec and marks thc start of ncw conlractual relationshlp bctwcen thcm This contractual rclationship givcs rise lo future agreements and transaciions between them' Onc ot ttrc lntcgral parts of this agreement' the letter dated 25 12 2014 is thc ,***,", "t assured return inter-se parties' The "agreement for sale" after coming into force ofthis Act (ie ' Act of 2016) shall be in the prcscrib€d form as per rules but this Act of2016 does not rewrite the "agrcemcnf' cntered beMeen promoter and allottee prior to com'ng into for€. ofthe Act as held by the Hon'ble Bombay High Court in case Neelkamol Realtots Suburban Privov Lhnited ond Anr' v/s Union ol tndia & Ors.' [Writ Petition No 2?37 of 2017) decided on 06-72.2077.

15.

It rs plcadcd on bchalfof rcspondents/builders that aftpr thc ljanning ot unr.gulated Deposit Schem's Act of 2019 came intq iorce' thcrc is bar tor payment of assured returns to an allottee- Ilut again' thc plea tak.n ir this regard is devoid of merit Section z(al of the abovc mcntioncd Act defines the word ' d€Posit' 's on atPunt ol monev received by woy oJ on advance or loon ot in anv othlr Jorm' bv onv deposit taker with a promise to return whether altet a Fpecifed period at otherwise, either in cosh ot in kind or in the lorfi oJ o speciled senlrce, with or withoutanv benelit in the form ol intercsL bonut Prolt or jn ony other [om, but does not include: t vu^e ol o'| fo' the P!'l6t nt b'''n'r a\J ' """ ' " -*-" --"|on Lo \uch bL'nes h' lbd'n| ," "i-. ' i^.'"a con:'de'ouon ot " :::::,,, ';'";;;;;;,;. ";;;;;;,;.e,t or drcnsed t sub'tt tothP 'r6ta4 thtt "i,ii'.i;",,i ,,-ii;';a o"insr su.h ftnovabte opttv o\ spectrtPd n t ern< nr Lhe ooreene^t or arong@enL ,,,. ^ *, "']i' ,li'iil "u"," rn"nt'on"o a"tni'i"n or the term 'deposrr" shows that it has been given the same meaning as assiSned to it under thc Companies Act, 2013 and the same p'ovides undBr section 2(31) includcs any rcceipt by way ofdeposit or loan or in any other form by a conipJny but docs not includc such categories ol amount as may bc p.cscribc.l in consultation with the Rescd' Bank ot lndia Similarly l1llc 2(c) of the Companies (Acceptance of Deposlis) Rules' 2014 d.hncs the mcaning ofdePosit whicb includes any reqcipt of moBey by -;,RER G.]RI]GRA[/ RER 1/ way ofdcposit or loan or in any other form by a companv but docs nor ot'ounted tat i anr nonnq whaBoeve' re'eied n ohnttttol*rh onrd otton 0r on 'nn,loble ot ope't! ,,i.' "^.r-^" *,r*a rad o< attoded bv an! 'ectorut resutoto' o' :n " , d.ftewtthd@'uont olCenuat ot Stote CovPt4nc4t: s., t.ipl""g ,. ,i"* ,t';;.velmentioned provisions olthe Act or201e and the Companies Act 2013, it is to be seen as to whether an allottee is cntitlcd to assured returns in a case where he has dcposited $bstantial amount ol sale consideration against thc allolmcnt of a Lrnit with the buildcr at the time ofbookiflg or immcdiatcly thcrcaftcr .nd as agrccd upon betwe€n them' 'lhe Govcrnment of lndia eDacted the Banning of Unre8ulated Deposit Schemes Act, 2019 to provlde for a comprehensive mechanism to ban thc unregulated deposit schemes, other than deposlts taken in th€ ordinary course of business and to protect lhe interest ol depositors and for matters connected therewith or incidental thereto as defined in scction 2 [4loithe BUDS Act 2019 19 'lhc money was taken by the builder as dcposit in advanre againsl allormcnt of immovable property and its possession was io bc offcrcd within a certain period However' in view oftaking sale considcration by way of advance, the builder he builder promised certain amount bv way of assurcd returns for a certain period So' on his failure to lulfil that commitmcnt, the allottee has a right to approach $e authority for redressal of his grievances bv wav olfiling a complaint' 20. lt is not disputed that the respondent is a real esEte developer' and ( had nol obtaincd rcgistration under the Act of 2016 for thc proiect in qucsfon.ltowever, the project inwhich the advance has bccn rcccived .omnLr nt Nn lhqS!r2021 - 'E: GU]lUGl]AI\4 by thc developer from the allottee is an ongoing proiect as per section 3[1] of the Act o12015 3nd, the same would fallwithin the jurisdiction oirhc authority for giving the desired reli€fto the complainant besides rnitratinq pcnal procccdings so, th€ amount paid by the complainani to lhc buildcr is a regulated deposit accepted by th€ latcr from the former against the immovable property to be bansf€rred to th€ 21. 'rhc Authoritv under this Act has been regulating the advances rccciv.d under the project and its various otber aspects' So' the amount paid by the complainant to the builder is a regulated deposit acccptad by the latter from the former against the immovablc prcp.ay to bc transfcrred to the allottce later on' ll thc projcct in rlhich thc advance has been received by the developer fronr an allottce is an ongoiDg proiect as per s€ction 3(1) ol the Act of 2016 thcn' the samc would fall within th€ iurisdiction of the authority lor givrng thc desired relief to the complainant besides ininating penal proce€dings' 'lhe Authority is of the view that since the occupatioD cerlificate iD respcct to the project has not been received vet and ihus the rcspondcnt cannotexecute a lease deed with thethird party' Th€ lcase dccd cxccutcd on 24 07 2020 thusholds no relevanceherc' 22. llen.c, thc Authority directs the respondent/promoter to pay assured rcturn to rhc complainant at the rate of Rs 22'500/' pcr month liom the daic i.c., 25. i.c., 25.12'2016 till the commencemenl ofthe first leasc on th' said unit after obtaining ihe occupation certificate as per thc mcmorandum ol understanding after deducting the amount alreadv paid on account ofassured returns to the complainants' fc..or"i,', rr.. ,ere oi: *HARERA S eLrnLrcnnur G.lL Direct the respondeot completion of the proiect 23.

Under Section-17(1) proviso respondent/promoter is under an conveyance deed in favour of the months from the date of issue of provision is reproduced below: ' section 17. ftunsleroftitle (1) the pronoter thall erccute a rcgisbred canveton.e deed . . . . . tocot P.avt.led that, in dbsence oI ant tocdt tav, canteronc deed th fovour of thc all.uee ar the asso.iotion al th. ollotteesor the.atnpetcnt auth.tit!, t\ the .ase naf be, undet thls sectftn sholl be coffted our b! the p.anoter ||thn nree hanths frcn the datc ol iste ol occrpohc! certiti.ote.

IEnpho\k supphed] 2,1.

Thc Authonty hereby directs the respondent to execure the conveyance dced in favour of the complainants wjthin 3 months atter obtarning the occupation ce.tificate from the competent authorities G.lll.

Restrain the respondent liom €nrering into lease deed with thlrd party till the completioh ofthe pro,ect.

25.

The Authority is oithe view that since the occupation certificate in .cspc.t to dre project has not been received yet and lvithout receiving the occupation certificate, ihe premjses cannot be presumed to be fit for occupation.

The respondent is directed to not tbrce the complainants to execute any lease decd prior to obtaining the occuparion ccrtificatc.

ConDlaint No.

1693of 2023 to €xecute sale deed aner ln favour of the complalnants. of the Act, 2016, the obligation to execute th€ regist€red allottee/complainant within three occupancy certificate.

The relevant H.

Directionsof theauthority HARERA GIJRUGRA[/ ComplaintNo.

1698oi2023 36. oi2023 36.

Hence, the Authority hereby passes this order and issues the fotlowing directions under section 37 of the Act to ensure conpliance of obligations €ast upon the promoter as per the function entrusted to the authority under section 34(0: i.'lhe respondent is directed to pay the arrears oiamount of assured return at the rate i.e., Rs.22,500/_ per month from the daic ie., 25.12.2016 till the commencement ol the first lease on the said unjt aiter obtaining the occupation cernficate as per the memorandum of understanding, aiter deducting the amount already paid by therespondent oD account ofassured return to the complainants. ii. lhc respondent is drre.ted to pay arrears oi accrued assured return as per MoU dated 25.12.2014 till date at the agreed raie within 90 days from the date of this order after adjustment ot outstanding dues, if any, from the complainants and failing which that amount woitld be payable with interest @9% P'a' till thc date of actual realization iu.

The respondent is directed to execute the registered conveyancc deed in iavour of the complainants within 3 months kom the date of obtaining the occupation certificate. iv.

Ihe respondent is direct€d to not force the complainants to exe.utc any lease deed prior to obtaining the occuPauon v.

Ihe respondent shall not charge anything from the contplainants lvhich is not the part ofthe agreement ofsale' 37.

Complaint stands disPosed of. flHARER GURUGRA[/ File be consigned to registry.

Haryana Real E.

I ,*t''/'I*'; Member{ / Estate Requlatory Authorio or,[Lu.

D.red:14.08.2024 38