RAJIV GUPTA vs NEO DEVELOPERS PVT.LTD.

Complaint no.

6000 of 2022 and I other BEFORE THE HARYANA REAL ESTATE REGULITTORY AUTHORITY, GURUGRAM Order pronounced on: 23.04.2025 Name ofthe Builder Neo Developers Private Limited Proiect Name Neo Square S.no.

Complaint title Attendance 1. cR/6000 /2022 Rajiv Gupta and Preetika Gupta V/s M/s Neo Developers Pvt.

Ltd.

Amit Gupta [Complainants) Venket Rao fResDondent) 2. cR/ 6093 /2022 Raiiv Gupta and Preetika Gupta V/s M/s Neo Developers Pvt.

Amit Gupta (Complainant) Venket Rao fResDondent) CORAM: Ashok Sangwan Memher ORDER 1.

This order shall dispose of both the complaints titled as above filed before this authority in form CRA under section 31 ofthe Real Estate [Regulation and Development) Act, ?016 (hereinafter referred as "the Act") read with rule 28 of the Haryana Real Estate (Regulation and DevelopmentJ Rules, 2017 (hereinafter referred as "the rules'J ior violation of section 11[4)(a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se between parties.

2.

The core issues emanating from them are similar in nature and the complainant[s) in the above referred matters are allottees of the proiect, namely, "Neo Square" being developed bythe same respondent/promoter i.e., NEO Developers Private Limited.

The terms and conditions of the trHARERA #eunuennnt Page 1 of 26 ( 3. *HARERA S*eunuennttt Complaint no.6000 of2022 and l other builder buyer's agreements fulcrum ofthe issue involved in all these cases pertains to allotment and possession of the units in question along with delayed possession charges.

The details of the complaints, reply status, unit no., date of agreement, possession clause, due date of possession, offer of possession, total sale consideration, amount paid up, and reliefs sought are given in the table below: Proiech'Neo Square",Sector-109, Gurugram qgreement or from the stqr m the stqrt oI is later ond opply for gront of completion/occupancy certifrcate.

The nt of occupancy,,/co m p I etio n c e rt ifr c o te compteaon/occupancy certtficate. the com4any on gront of occuponcy/completion certifrco shall issue Jinal letters to the allottee who shall within 30 days, thereofremit oll dues." 1, Compleaion cedificate- 7 4.08.2024 2.

DTCP License no.

102 of 2008 doted 15.05.2009 valid upto 14.05.2025 - Shri Maya Buildcon Pvt.

Ltd. and 5 Ors. are the licensee for the proiect as mentioned in land schedule of the proiect.

3.

Nature of Project- Commercial Colony 4. fE registrotion -109 of 2L17 dated 24.08.2077 , yalid \pto 22.02.2024 Sr.

No Complalnt no./title/ date of complaint Reply status UnitNo. and area admeasur ing Date of execution of agreement for sale Due date oI possession & Offer of possession Total sale consideration and amount paid by the Complalnant (s) Relief sought t. cR/6000/2o2 2 Rajiv Cupta and Preetika Cupta V/s M/s Neo Developers tut Ltd.

DOF.

21.09.2022 Reply 24.05.20 Shop no.

43, Ground floor, 667 sq.lt (super area) (As on page 57 complaint) 14.05.201a (As on page no.

54 of complaint) Due date- ts-12_2079 (Calorlated from date start construction, Otrerof possession- Not offered TSC: Rs.81,50,740l' (as per BBA on page 39 of reply) Rs.85,54,519/- (as per BBA on page 39 of reply) fusured Retum, Porsessio n, DPC, cD.

PaEe 2 ot 26 IClouse-1o "Thot the compony shotl complote the construction oy ttte soia tAding/comptex I within which the said spoce is locoted withi4.48 months hom the date of execution of this 2. cR/6093/202 2 Raiiv Gupta and Pre€tika Cupta v/s M/s Neo Developers hn l,td.

DOF- 21.O9.2022 Reply received on 2+.0s.20 Shop no.

42, Ground floor, 671 sq.ft. (super area) [As on page no.

57 of complainr) 18.05.2018 [As on page no.

54 of complaint) Duedate- 15.12.2019 (Calculated from date of start of oftr of poJsession- Notoffered TSC: Rs.81,99,620l' (as per BBA on page 57 of complainq Rs. plainq Rs.85,54,519/- (as per BBA on page 59 of complain0 Return, Possessio N, DPC, CD, Note: ln the table refered above c€rtain abbreviations have been used.

They are elaborated as follows: Abbreviadons Full form DOF Date offiling complaint TSC' Total Sale consideration AP Amount paid by the allottee(s) 4.

5. #HARERA SH eunuenRu Complaint no.6000 of2022 and 1 other The aforesaid complaints were filed by the complainants against the promoter on account of contraventions alleged to have been committed by the promoter in relation to Section 11(4)(a) oftheAct,2016.

It has been decided to treat the said complaints as an application for non- compliance of statutory obligations on the part of the promoters/respondent in terms ofsection 34(0 ofthe Act which mandates the authority to ensure compliance of the obligations cast upon the promoter, the allottee(s) and the real estate agents under the Act, the rules and the regulations made thereunder.

The facts of all the complaints filed by the complainant(sJ/allotree(sJ are also similar.

Out of the above-mentioned case, the particulars of lead case CR/6000/2022 titled as Rajiv Gupta ond Preetika Gupta V/s Neo Developers PvL Ltd. are being taken into consideration for determining the reliefs ofthe allottee(sJ qua allotment and possession ofthe unit in question along with delayed possession charges. ,/ Page 3 of 26 6. *HARERA t1$- eunuennnt Complaint no.6000 of2022 and l other A.

Proiect and unit related details 7.

The particulars ofthe project, the details ofsale consideration, the amount paid by the complainant(s), date of proposed handing over the possession, delay period, ifany, have been detailed in the following tabular form: CR/6000/2022 titled as Rajiv cupto and Preetika euptu V/s Neo Devetopers PvL Ltd, S.

N.

Particulars Details 7.

Name ofthe Droiect Neo Square, Sector-109, Gurugram 2.

Project area 2.71acres 3.

Nature of the proiect Commercial colony 4.

Unit no.

Shop no.

43, Ground floor (page 57 of complaintl 5. plaintl 5.

Unit area admeasurins 667 sq. ft. (super areaJ 6.

Date of execution of apartment buyer's agreement 18.05.2018 (page 36 of reply) 7.

MOU dated 74.r0.2074 (page 26 ofreply) 8.

Possession clause as per MOU Dated t4 .-t_0 .20L4 10.

That the company shall complete the construction of the said building/complex within which the said space is located within 48 months from the date of execution ofthis agreement or from the start of construction whichever is later and apply for grant of completion/occupancy certificate.

The company on grant of occupanry/completion certificate shall issue final letters to the allottee who shall within 30 days, thereof remit all dues.

9. of Date of construction The Authority has decided the date ofstart of construction as 15.12.2015 which was agreed to be taken as date of start of construction for the same proiect in other matters.

CR/1329l2019 It was admitted by the respondent in his reply that the construction was started in the month of December 2015.

Page 4 ol 26 /' ffiHARERA s-eunuennu Complaint no.6000 of2022 and l other B. o.

Facts ofthe complaint The complainants have made the following submissions: - I.

That in the month of October 20L4, the developer represented to the complainants that it is in possession ofa large parcel ofland on Dwarka Expressway, Sector-109, Gurugram and has received the requisite permissions, sanctions and licenses from the concerned authorities to develop a commercial project in the name and style of "Neo Square".

That the developer further represented that the said proiect is ve4r lu6121iyg and that the complainants should invest in it as fast as possible for procuring maximum returns.

The developer further promised to tlle complainants that under the assured monthly returns plan, the complainants would be paid certain sums of money per month, until the allotted unit/shop is leased out.

II. d out.

II.

That relying on ther developer's representations, warranties and promises, the complainants invested their hard-earned money into the said project and paid the entire sale consideration of Rs.85,54,519/- to the developer vide cheque nos.000034 and 000038 drawn on HDFC Bank Bengali Market.

10.

Due date ofpossession ls.L2.2019 (Calculated from date of start of construction) 11.

Total sale consideration Rs.81,50,740l- (as per BBA on page 39 of renlv) 72.

Amount paid by the complainant Rs.85,54,519/- fas per BBA on page 39 of reply] 13.

Occupation certificate /Completion certificate Not obtained t4.

Offer ofpossession Not obtained Page 5 of 26 HARERA P*GURUGRAM Complaint no.

6000 of2022 and 1 other IV.

IIl.

That a memorandum of understanding dated 14.10.2014 was executed between the complainants and developer, and further an allotment letter dated 14.10.2014 was issued by the developer in favour of the complainants, whereby the complainants were allotted unit no, 51 on the Ground Floor of the said project having super area approx.675 sq. ft. and carpet area 337.5 sq. ft.

That as per the MOU, the developer had a contractual obligation to complete the construction of the said proiect and hand over the possession of the said unit to- the complainant complete in all respects, within 48 months ic. latest by 74.70.207A.

Further, the developer had promised to pay assured monthly returns of Rs.93,379/- per month to till the commencement of the first lease ofthe said unit.

That thereafter, amidst miserably failing to carry out the construction as per timelines, on 30.03.2017 the developer raised an additional VAT demand of Rs.4,28,423/- from the complainants and threatened to charge interest @180/o in case ofnon-payment of the amount.

That the layout of the said proiect was substantially changed and the units allotted to the complainants were also shifted to less premium locations.

The allotted unit number was arbitrarily changed from shop no.

51 to shop no. o shop no.43 and even the carpet area ofthe unit was reduced from 337.5 sq. ft. to 333.5 sq. ft.

That from January 2019 onwards, the developer stopped paying assured monthly returns and the cheques given by the developer started bouncing due to 'insufficient funds'.

When the complainants raised the issue, the developer requested the complainants not to initiate any legal proceedings as the same would destroy its Page 6 of 26 HARERA P*GURUGRAN/ reputation and further promised to start paying the assured monthly returns soon.

Not wishing to spoil the relations and with hefty amounts already invested with the developer, the complainants did not initiate cheque bounce proceedings under Section 138 ofthe N.l.

Act and waited patiently for the developer to honour its commitments.

That thereafter, instead of honouring its commitments to pay the assured monthly returns, the developer in December 2019 sent a letter out of the blue, stating that it would not be paying assured monthly returns.

This was in total contradiction to the promises made by the developer.

Further, the developer failed to provide TDS certificates to the complainants for the TDS deducted from the previous assured monthly return payments.

This conduct of the developer is clearly,an unfair trade practice and has caused grave unnecessary preiudice upon the complainants, who had further financial commitments based upon the presumption of receiving the assured monthly returns.

That in January 2020, a new frivolous demand notice of Rs.6,70,297 /-towards'VAT outstanding'was sent by the developer to the complainants.

It is pertinent to mention herein that even before this illegal demand, the developer had made such demands in 2017 and the complainants had readily cleared all the VAT payments, after which the developer had sent an email stating that no dues are payable. e payable.

However, despite the same being an admitted position, developer again raised this demand without giving any legal basis on the basis ofwhich such demand is being made, as VAT already has been superseded by the cST regime.

6000 of2022 and l other VII.

VIII.

Page 7 ot 26 HARERA RGURUGRAM Complaint no.6000 of2022 and l other IX.

That due to the illegal actions of the developer, the complainants sent a legal notice dated 07.02.2020 to the developer, calling upon the developer to refund the entire sale consideration of R*,a2,05,943/- paid by the complainants and rheir family members to the developer towards booking of three units in the said project, along with interest@180/o p.a. till the date of refund, and to pay the outstanding assured monthly returns and a further sum of Rs.

25,00,000/- towards mental trauma and agony caused to the complainants.

The legal notice has not been replied to by the developer.

X.

That when the complainants refused to accede to the illegal demands by the developer, the developer sent a'final notice, dated 07.06.2027, containing completely false claims regarding 'outstanding amounts' and further threatened to cancel the allotment and resel] the said unit if the demanded amount was not paid before 21.06.2A27.

XI.

That despite 8 years having passed, neither possession has been offered, nor the arrears of assured monthly return have been paid which were abruptly stopped in 2019, and further the developer has threatened to illegally cancel the allotment ofthe complainants, even though full sale consideration has been paid to the developer.

Due to all the aforesaid, the complainants are constrained to file this present instant complaint.

C.

Relief sought by the complainants: 9.

The complainants have sought following relief(sJ: i.

Direct the respondent to handover possession, to pay delayed interest o amount paid and execute conveyance deed in their favour. ii.

Direct the respondents to make payment towards assured return. ed return.

Page I of 26 *HARERA #-ounuennv Complaint no.5000 of2022 and l other iii.

Direct the respondent to refund the excess amount taken towards VAT and also to withdraw the illegal VAT demand letter d ated ZZ.OL.ZOZ\.

0n the date ofhearing, the authority explained to the respondent/ promoter about the contraventions as alleged to have been committed in relation to section 11(4J (aJ ofthe act to plead guilty or not to plead guilty.

D.

Reply by the respondent 11.

The respondent has contested the complaint on the following grounds: i.

That the complainants with the intent to invest in the real estate sector as an investor, approached the respondent and inquired about the proiect i.e., "Neo Square" situated at Sector-109, Gurugram, Haryana being developed by the respondent.

That after being fully satisfied with the project and the approvals thereol the complainant decided to opt for the investment return plan ofthe said project.

Accordingly, a Memorandum of Understanding dated 14.10.2014 was executed between the parties for receiving returns as per the investment return plan.

That as per the MOU, it was agreed that return of an amount of Rs.93,379/- will be paid to the complainants from 74.10.2074.

Further as per clause 8 of the MOU the said returns tvere to be paid from 24.08.2016 till the commencement of fi rst lease. ii.

That along with the said MOU, a provisional allotment letter was issued to the complainants for provisionally allotting a unit bearing no.

51, Ground Floor in the said project.

It is further submitted that after the execution of the MOU, the complainants were called upon many times by the respondent to execute the builder buyer agreement.

However, the complainants failed to do so and after much persuasion, only on 18.05.2018 the complainants came forward to execute the buyer agreement dated 18.05.2018.

Page 9 of 26 SHARERA S eunuennnr Complaint no.6000 of2022 and l other lv.

That as per buyer agreement, the shop bearing no. earing no.

43 on the ground floor having super area of667 sq.ft. and a basic sale consideration of Rs.81,50,740/- was finally allotted to the complainants.

That the complainants after being well satisfied and with full knowledge and understanding ofthe terms and conditions, executed the buyer agreement dated 18.05.2018 on their own volition.

In the buyer's agreement, the complainants agreed and accepted that the area of the allotted unit was tentative and sublect to change at the time of approval of building plans and on completion of the construction.

It is further pertinent to mention that the complainants have also issued a "no obiection certificate dated 18.05.2018, wherein complainants have agreed that without any protest and with wilful consent agreed and confirmed that no future consent of the complainants shall be required if there is changes in the said complex such as change in the position of the said space, change in its dimensions, change in its area or change in its number or change in the height of the building change in number of floors; change in zoning or change in usage.

That the as per clause 10 of the'MOU'the due date for handing over of the possession was within 48 months from the date of execution of the agreement or from the start of construction, whichever is later.

That it is pertinent to mention that this Authority in complaint bearing no.

1328 of 2019 titled as Ram Avtar Nijhawan vs M/s Neo Developers Pvt.

Ltd." pertainingto the same proiect i.e., 'NEO Square' vide order dated 05.09.2019 held that the date of start of construction for the instant proiect was 15.12.20L5 and the Authority also granted a period of 6 months as grace period.

V.

Page 10 of 26 *HARERA (S, eunuennHl Complaint no.6000 of2022 and l other vll.

Accordingly, the due date of delivery of possession comes out to be 15.06.2020.

That on 07.02. on 07.02.2020, the complainants sent a legal notice to the respondent calling upon the respondent to refund the amounts paid against the sale consideration of the unit along with interest @1g% p.a.

Therefore, it is abundantly clear that the complainants were not interested in continuing with the said unit.

That the request for refund by the complainants were before the due date of possession i.e.

15.06.2020, meaning thereby that in the present case the complainants are surrendering their unit Therefore, in view of Haryana Real Estate Regulatory Authority Gurugram (Forfeiture of Earnest Money by Builder) Regulations, 2018 dated 05.12.20LA, the respondent herein is entitled for forfeiture of 1070 earnest money.

That it is a matter of fact, that time was essence in respect to the complainant obligation for making the respective payment and, as per the agreement so signed and acknowledged the complainantwas bound to make the outstanding payment as and when demanded by the respondenL That the respondent had been running behind the complainants for the timely payment of dues towards the unit in question.

That in spite of being aware of the payment plans the complainant herein has failed to pay the outstanding dues on time.

It is humbly submitted that though the complainants may have cleared the basic sale price of the said commercial property, however, they are still liable to pay all other charges such as VAT, interest registration charges, security deposit, duties, taxes, levies etc. when demanded. x.

Page tl of 26 HARERA E* GURUGRAM That the complainants failed to clear the outstanding dues payable towards statutory taxes and for this reason the respondent was forced to issue the reminders for payment dated ZZ,OI.ZOZO and reminder dated 17,10.2020.

That the respondent is raising the VAT demands as per government regulations.

That the rate at which the respondent is charging the VAT amount is as per the provisions ofthe Haryana Value Added Tax Act 2003.

Act 2003.

Accordingly, the VAT amounts have been demanded from the complainant, as the same has been assessed and demanded by the competent authority.

It is pertinent to mention that the respondent has not availed the amnesty scheme namely, Haryana Alternative Tax Compliance Scheme for Contractors, 2016, floated by the Government of Haryana, for the recovery of tax, interest, penalty or other dues payable under the said HVAT Act, 2003.

To further substantiated the same, the name of the respondent is not appearing in the list of Builders, as circulated by the Excise & Taxation Department Haryana, who have opted for the lumpsum scheme/amnesty scheme under Rule 49A of HVAT Rules, 2003.

It is further submitted that the demand ofVAT is done as per clause 11 of the buyer's agreement That in compliance of the terms and conditions of the above said MOU dated 14.10.2014 executed between the parties and upon the amount paid by the complainants i.e., Rs.85,54,519/- till the execution of the MOU, respondent had paid Rs.4g,ZS,91g/- as assured return paymenL That the respondent was always prompt in making the payment of assured return as agreed under MoU and has been paying the committed assured return of Rs.22,500/- for every month to the Complaint no.

6000 of2022 and 1 other xii. xlll. xlv.

Page 12 of 26 r' SHARERA S*eunuennv Complaint no.6000 of2022 and l other complainant without any delay since 24.0a.2016.

As of 2020, the complainant has already received an assured return of Rs.7 ,7 0,250 /- .

However, the respondent could not pay the assured return due to enactment of BUDS Act. xv.

That without prejudice and without admitting any averments of the complainants, after the enforcement of the "Banning of Unregulated Deposit Schemes Act, 2019" the respondent was constrained to cease all payment pertaining to assured return to all its allottees who had opted for the same. xvi. same. xvi.

That under the scheme of the RERA Act 2016 there is no provision for examining and deciding the issues relating to the provisions of assured return.

Also, the Authority has no jurisdiction to entertain an application for enforcement ofan agreement of assured return on investment, which is separate from the agreement of sale or allotment, which grants right in immovable property. xvii.

That recently a writ petition was filed before the Hon'ble High Court of Punjab & Haryana in the matter ofVatika Ltd. vs Union of India & Anr. - CWP-267 40-202, on similar grounds of directions passed for payment of assured return being completely contrary to the BUDS Act.

That the Hon'ble High Court after hearing the initial arguments vide order dated 22.71.2022 was pleased to pass direction with respect to not taking coercive steps in criminal cases registered against the petitioner therein, seeking recovery of deposits till the next date ofhearing. [t is further submitted that in a judgment dated 29.09.2020 passed by the Uttar Pradesh Real Estate Appellate Tribunal at Lucknow, in appeal bearing no.

2L7 /2022, titled as "Meena Gupta vs One Place Infrastructure Pvt Ltd", the Appellate Tribunal held that assured return is independent commercial Page 13 of 26 *HARERA #[ eunuennu Complaint no.6000 of2022 and l other arrangements between the parties which sometimes a promoter/developer offer in order to attract buyers/investors or users who may invest either in under construction or pre- launched/new launched projects.

Further the Ld.

Appellate Tribunal held that there is no provision under the scheme of the Ad,201.6 for examining and deciding the issue relating to the provisions of assured return.

12.

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 on the basis of these undi3plited documents and submission made by the parties.

E.

Jurisdiction ofthe authority 13. hority 13.

The respondent raised a preliminary submission/objection that the authority has no jurisdiction to entertain the present complaint.

The objection of the respondent regarding reiection of complaint on ground of jurisdiction stands rejected.

The authority observes that it has territorial as well as subject matter ,urisdiction to adiudicate the present complaint for the reasons given below.

I Territorial iurisdiction 14.

As per notification no.

7/92/2017-ITCP dated 74.!2.20U issued by Town and Country Planning Department, the iurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

In the present case, the proiect in question is situated within the planning area of Gurugram District.

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

E.Il Subiect matter iurisdiction r' Page 14 ot 26 *HARERA db, ounuennla Complaint no.6000 of2022 and 1 other 15.

Section 11[a)(al of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11[4J[a) is reproduced as hereunder: Section 77 (4) The promoter shall- F. (a) be responsible for oll obligationt responsibilities and functions under the provisions of this Act or the rules ond regulations mode thereunder or to the allottees os per the agreement for sqle, or to the association of ollotteet os the case moy be, till the conveyonce of all the apartments, plots or buildings, os the case may be, to the ollottees, or the common areas to the associotion of ollottees or the competent authoriry, as the cose moy be; Section 34-Functions ofthe A 34(f) of the Act ensure compliance of the obligotions cast upon the promoters, the allottees ond the reol estate agents t and the rules ond regulotions made the 76. de the 76.

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 the promoter.

Findings on the reliefsought by the complainants: F.

I Direct the respondent to handover possession, to pay delayed interest on amount paid and execute conveyance deed in their favour.

F.ll Direct the respondents to make payment towards assured return.

Assured Return: The complainants in the present complaint are seeking relief w.r.t payment of assured return as per the terms of the MoU dated 14.10.2014.

The complainants have submitted that as per clause 17 of the said MoU, it was agreed that the respondent would pay monthly assured return of Rs.93,379/- with effect from 14.10.2014.

Further, it was also agreed vide clause 8 of the said MoU that the responsibility of assured returns to be paid by the respondent would cease on commencement of first lease.

The complainants are seeking unpaid assured returns on monthly basis as per the MoU dated 14.10.2014 at the rates mentioned therein.

It is pleaded by Page 15 of 26 L7. ( *HARERA $* eunuenml Complaint no.6000 of 2022 ard 1 other the complainants that the respondent has not complied with the terms and conditions ofthe said MoU.

18.

The MoU dated 14.10.2014 can be considered as an agreement for sale interpreting the definition of the agreement for ,,agreement for sale,, under section 2(c) of the Act and broadly by taking into consideration the obiects of the Act.

Therefore, the promoter and allottee would be bound by the obligations contained in the memorandum of understandings and the promoter shall be responsible for all obligations, responsibilities, and functions to the allottee as peril!1 agreement for sale executed inter-se them under sedion 11(a)(aJ oft$iiaiien agreement defines the rights and liabilities of both the parties i.e., promoter and the allottee and marks the start of new contractual relatlonship between them. ween them.

This contractual relationship gives riseto futuretgreernents hnd transactions between them.

The "agreement for sale" after coming into forieofthis Act (i.e., Act ofZ016) shall be in ttre pr$cribed form ai.per rules but this Act of 2016 does not rewrite the "agreerileht' entered between rpromoter and allottee prior to coming into force of the Act as held by theiHon,ble Bombay High Court in case Neelkamal Realtors Suharbdn priwie Limited and Anr, v/s ltnion of India & Ors., (Writ Peution No.2137 of ZO!7) decided on 05.12.2017.

19.

It is pleaded on behalf of respondent/buhder that after the Banning of Unregulated Deposit Schemes Act of 2019 came into force, there is bar for payment of assured returns to an allottee.

But the plea advanced in this regard is devoid of merit.

Section 2(4J of the above mentioned Act defines the word ' deposit'as on am ount of money received by way of an advonce or loan 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 any benefit in the form of interest, bonus, proft or in any other Iorm, but does not include: Page 16 of 26 *HARERA S,eunuennHl Complaint no.6000 of2022 and l other (i) an qmount received in the course oI, or for the purpose ofbusiness ond beqring a genuine connection to such business including (ii) advonce received in connection with consideration of qn immovoble property, under on ogreement or orrqngement subject to the condition that such odvonce is adjusted against such immovable properly as speciJied in terms of the ogreement or orrangemenL 20.

A perusal of the above-mentioned definition of the term ,deposit,, shows that it has been given the same meaning as assigned to it under the Companies Act,2013 and the same provides under section Z(31J includes any receipt by way ofdeposit or loan or in any other form by a company but does not include such categories pf, amount pf, amount as may be prescribed in consultation with the Reserve Bank of India.

Similarly rule 2(c) of the Companies (Acceptance of Oepiisltg) Rules, 2014 defines the meaning of deposit which includes any receipt of money by way of deposit or loan or in any other form by a company but does not include: (i) as an odvince, accounted for in any manner whotsoever, received in connection with consideration for on immovable properqt (ii) as an advance received ond os ollowed by any sectoral regulotor or in accordance with directions ofCentrol or Stote Government; So, keeping in view the above-mentioned provisions of the Act of 2019 and the Companies Act 2013, it is to be seen as to whether an allottee is entitled to assured returns in a case where he has deposited substantial amount of sale consideration against the allotment ofa unit with the builder at the time ofbooking or immediately thereafter and as agreed upon between them.

The Government of lndia enacted the Banning of Unregulated Deposit Schemes Act,2019 to provide for a comprehensive mechanism to ban the unregulated deposit schemes, other than deposits taken in the ordinary course of business and to protect the interest of depositors and for matters connected therewith or incidental thereto as defined in Section 2 (4) of the BUDS Act 2019.

The money 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 oftaking sale consideration by way ofadvance, the Page17 ot26 ,, 2t.

22.

SHARERA #-eunuennv Complaint no.6000 of2022 and 1 other builder promised certain amount by way of assured 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.

24.

The Authority under this Act has been regulating the advances received under the proiect and its various other aspects. r aspects.

So, the amount paid by the complainant to the builder is a regulated deposit accepted by the latter from the former against the immovable property to be transferred to the allottee later on.

If the proiect in which the advance has been received by the developer from an allottee is a: pn_g;o1ng proiect as per Section 3(1) of the Act of 2016 then, the same wouldfejl'within, rhe iurisdiction of the authority for giving the desired retief ,tAllhqilrnpkinant besides initiating penal proceedings.

The promoter is liable,to pay that amount as agreed upon.

Moreover, an agreement/MoU defines the builder-buyer relationship.

So, it can be said that the agreement for assured'returns between the promoter and allottee arises out of the same relatioDship and is marked by the said memorandum of understanding.

In the present complaint, the assured return was payable as per clause 17 and clause 8 of the;MoU dated.l&10.2014,1whid1 is reproduced below for the ready referencd I 77. "The Compony sho poy a monthly return of Rs.93,379/. (Rupees Ninety-Three Thousand Three Hundred Seventy Nine Only) on the totol amou nt deposited till signing of this MOU, with efrect from 74-Oct-71.

SeNice tax iI to be deposited some shall be paid extro by the compony.

8.

Thot the responsibility oI pdying assured retums to be poid by the company shall cease on commencement of frrst lease." Thus, the assured return was payable @Rs.93,379 / - per month w.e.f.

14.10.20L4, till the commencement of first lease after obtaining of occupation/completion certifi cate.

In light of the reasons mentioned above, the authority is of the view that as per the Mou dated 14.10.2014, it was obligation on part ofthe respondent 25.

26.

27.

Page 18 of 26 k- ffHARERA $b* eunuennl,t Complaint no.6000 of2022 and 1 other to pay the assured return.

It is necessary to mention here that the respondent has failed to fulfil its obligation as agreed inter se both the parties in MoU dated 14.10.2074.

4.10.2074.

Further, it is to be noted that the occupation/completion certificate for the project in question has already been obtained by the respondent on 14.08.2024, whereas neither the possession of the subiect unit has not been offered nor the unit of the complainants has been put on lease till date.

Accordingly, the liability ofthe respondent to pay assured return as per MoU is still continuing.

Hence, the respondent/promoter is liable to pay assured return to the complainants at the agreed rate i.e., @Rs.93,379f per month from the date the payment of assured return was stopped till ihe cdmmencement ofthe first lease on the said unit as per the memorandum ofunderstanding dated 14.10.2014.

Delay Possession Charges: In the present complaint, the complainants intend to continue with the project and are seeking delay possession chirges as provided under the proviso to section 18(1) ofthe Act.

Sec.

18(1) proviso reads as under. "Section 18: - Rehrm oJ amount ond compensotion 18(1). lf the promoter foils to complgtz or is unoble to give possession oI on oportment, plot, or bu ding, - Provided thatvhere an qllottee does not intend to withdrowfrom the project, he shall be poid" by the promoter, interest for every month ofdelay, till the handing over ofthe possession, atsuch rate os moy be prescribed." 29.

Clause 10 of the MoU dated 14.10.2014 provides for handing over of possession and is reproduced below: - 70. "That the compony shall complete the construction of the soid building/complex within which the soid space is locoted within 48 months from the ddte of execution of this ogreement or from the stort oI construction whichever is later ond opply for g rant of completion/occupancy certiJicote.

The compony on gront of occupancy/completion certilicote sholl issue final letters to the allottee who shall within 30 doys, thereolremit all dues. )a Page 19 of 26 HARERA P*GURUGRAN/ Complaint no.6000 of2022 and 1 other 30. other 30.

Due date ofpossession: As per clause 10 ofthe MoU dated 14.10.2014, the possession of the allotted unit was supposed to be offered within a stipulated timeframe of 48 months from the date of execution of that agreement or commencement of construction i.e., lS-1,Z.Z0lS (as per order dated 05.09.2019 in complaint bearing no.

CC ll3ZB /ZOtg) whichever is later.

Therefore, the due date has been calculated as 48 months from the date of date of commencement of construction.

Thus, the due date of possession come out to be 15.12.2019.

Admissibility of delay possession charges at prescribed rate of interest: The complainants ar! seeki re seeking delay possession charges at prescribed rate of interest.

Provisd id ,Viso tai section 18 provides that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of possession, at such rate as may be prescribed and it has been prescribed under rule 15 ofthe rules.

Rule 15 has been reproduced as under: - Rule 75, Prescribed rate of interest- lproviso to section 72, section 78 qnd sub-section (4) ond suhsection (7) of section 1el A) For the purpose of proviso to section 12; section 18; ond sub-sections (4) ond (7) of section 19, the "interest ot the rate prescribed" sholl be the State Bonk of lndio highest morginal cost of lending rote +2%.: Provided thot in cose the Stote Bank of lndio morginol cost oI lending rote (MCLR) is not in use, it shall be replaced by such benchmqrk lending rqtes which the State Bonk oflndia moy Jix from time to time for lending to the generol public.

The legislature in its wisdom in the subordinate legislation under the provision of rule 15 of the rules, has determined the prescribed rate of interest.

The rate of interest so determined by the legislature, is reasonable and if the said rule is followed to award the interest, it will ensure uniform practice in all the cases. the cases.

Consequently, as per \ rebsite of the State Bank of India i.e., https://sbi.co.in, the marginal cost of lending rate (in short, MCLR) as o n date i.e.,23.O4.ZO2S 31.

32.

JJ.

Page20of26 ^r/ *HARERA *S- eunuennv Complaint no.

6000 of2022 and 1 other is 9.10%0.

Accordingly, the prescribed rate of interest will be marginal cost oflending rate +2 0/o i.e., 11.llVo.

34.

The definition of term 'interest' as defined under section Z(zaJ of the Act provides that the rate of interest chargeable from the allottees by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottees, in case ofdefault.

The relevant section is reproduced below: "(zo) "interest" means the rates oI interest payable by the promoter or the ollottee, os the eose mo! be.

Explanation. -For the is clouse- (i) the rate of interest ble Irom the ollottee by the shall be equol to the rate oI promoter, in cose I interest which the protioter shall be liable to pay the allottee, in case of the interest poyable bt the promoter to the ollottee sholl be from the dote be from the dote the proJlloter received the omount or ony port thetreol till the date the omount or port thereol ond interest thereon b refunded, and the interest payabte by the allottee to the promoter sholl be from the date the allottee defoults in powent to the promoter till the dote it 35. is poidi Therefore, interest on the delay payments from the complainants shall be charged at the prescribed rate i.e., 11.100/o by the respondent/promoter which is the same as is being granted to the complainants in case of delay possession charges.

36.

On consideration ofdocuments 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.

By virtue of clause L0 of the MoU dated 14.10.2014, the possession of the subject unit was to be delivered b'.y 15.72.201,9. .72.201,9.

The occupation/completion certificate of the project in question has been obtained by the respondent on 1,4.08.2024.

However, the respondent has failed to handover possession of the subject shop/unit till date of this order.

Accordingly, it is the failure of PaEe21ot 26 trHARERA S- eunuennvr Complaint no.6000 of2022 and 1 other the respondent/promoter to fulfil its obligations and responsibilities as per the agreement to hand over the possession within the stipulated period.

37.

The authoriry observes that now, the proposition before the Authority whether an allottee who is getting/entitled for assured return even after expiry of due date of possession, is entitled to both the assured return as well as delayed possession charges?

To answer the above proposition, it is worthwhile to consider that the assured return is payable to the allottee on account of a provision in the BBA or in a MoU having reference ofthe BBA or an addendum to the BBA/MoU or allotment letter.

The rate at which assured return has been committed by the promoter is Rs.93,379/- per month.

If we compare this assured return with delayed possession charges payable under proviso to Section 18 (1J of the Real Estate (Regulation and Development) Act,20L6, the assured return is much better.

By way ofassured return, the promoter has assured the allottee that they will be entitled for this specific amount from j,4.I0.2014 upto the commencement of first lease which shall in any case, commence only after the obtaining of occupation/completion certificate from the competent authority.

Accordingly, the interest of the allottee is protected even after the due date of possession is over'.

The purpose ofdelay possession charges after due date of possession is served on payment of assured return after due date ol possession as the same is to safeguard the interest ofthe allottees as their money is continued to be used by the promoter even after the promised due date and in return, they are to be paid ei be paid either the assured return or delay possession charges whichever is higher. ^/ Page 22 ol26 39. *HARERA S* ounuennvr Complaint no.6000 of2022 and 1 other 38.

Accordingly, the authority decides that in cases where assured return is reasonable and comparable with the delay possession charges under Section 18 and assured return is payable even after due date ofpossession, the allottee shall be entitled to assured return or delayed possession charges, whichever is higher without prejudice to any other remedy including compensation.

In the present complaint, as per clause 17 read with clause g of the MoU dated 74.10.2014, the amount on account of assured return was payable from 14.10.2014 upto the . cotnmencement of first lease.

The occupation/completion certifiqse of the prorect in question has been obtained by the respondent on l+.Ob:Zoz+.

However, the subject unit has not been put on lease by the respondent till date.

Therefore, considering the facts ofthe present case, the respondent is directed to pay assured return to the complainants at the agreed rate i.e., @Rs.93,379/- per month from the date, the payment ofassured return was stopped till the commencement of the first lease on the said unit as per the memorandum of understanding dated 74.t0.201,4.

Further the complainants are seeking relief w.r.t execution of conveyance deed of the unit in question in their favour.

The Authority observes that as per Section 11(a)(f) and Section 17(11 of the Act of 2016, the promoter is under an obligation to get the conveyance deed executed in favour of the complainants.

Whereas, as per Section 19(11) of the Act of 2016, the allottees are also obligated to participate towards registration of the conveyance deed of the unit in question.

The occupation/completion certificate has already been obtained by the respondent on 14.08.2024.

4.08.2024.

Therefore, the respondent/promoter is directed to handover the possession ofthe unit to the complainants/allottee in terms of the MoU as well as buyer's agreement executed between them on 40.

4t.

Page 23 ot 26 HARERA GURUGRAM Complaint no.6000 of2022 and 1 other payment of outstanding dues if any, within 60 days.

The respondent is further directed to get the conveyance deed ofthe allotted unit executed in their favour in terms of Section 17(11 of the Act of 2016 on payment of stamp duty and registration charges as applicable within three months from the date of this order.

F.III Direct the respondent to refund the excess amount taken towards VAT and also to withdraw the illegal VAT demand letter d ated 22,01,2020.

42.

The complainants have contended that the respondent has illegally charged . amount from her towards VAT submitting that in January 2020, a demand notice ofRs.6,10,297/- towards 'VAT"outstanding' was sent by the developer to the complainants.

It is pert&&&.!b.:rnention herein that even before this illegal demand, the developer )yad made guch demands in 2017 and the complainants had readily cleared all the VAT payments, after which the developer had sent an email stating that no dues are payable.

However, despite the same being an admitted positio& developer again raised this demand without giring any legal basis on the basis of which such demand is being made, as VAT already has been zuperseded by the GST regime.

But the version ofrespondent is otherwise and too\a plea that respondent is raising the VAT demands as per goverhmmt regulations.

The rate at which the respondent is charging the \An afrount is as per the provisions of the Haryana Value Added Tax Act 2003.

It is pertinent to mention that the respondent has not ayailed the amnesty scheme namely, Haryana Alternative Tax Compliance Scheme for Contractors, 2015, floated by the Government of Haryana, for the recovery of tax, interest, penalty or other dues payable under the said HVAT Act, HVAT Act, 2003.

It is further submitted that the demand of VAT is done as per clause 11 of the buyer's agreement.

The Authority is of view that the promoter shall charge VAT from the allottees where the same was leviable, at the applicable rate, if they have not opted for composition scheme.

Howeveq, if composition scheme has been availed, fi Page 24 ol 26 G.

43.

S HARERA $-eunuenav Complaint no.6000 of2022 and l other no VAT is leviable.

Further, the promoter shall charge actual VAT from the allottees/prospective buyers paid by the promoter to the concerned department/authority on pro-rata basis i.e. depending upon the area ofthe flat allotted to the complainants vis- )-vis the total area of the particular proiect.

Howevet the complainants would also be entitled to proof of such payments to the concerned department along with a computation proportionate to the allotted unit, before making payment under the aforesaid heads.

Furthet in case, the respondent has received excess amount towards VAI then the same refunded to the complainants.

Hence, the authority hereby passes this order and issue the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority under section 34(0: i.

The respondent/promoter is directed to pay assured return to the complainants at the agreed rate i.e., Rs.93,379/- per month from the date the payment of assured return was stopped till the commencement of the first lease on the said unit as per the memorandum of understanding. ii.

The respondent/promoter is directed to pay the outstanding accrued assured return amount till date at the agreed rate within 90 days from the date of this order after adjustment of outstanding dues, if any, failing which that amount would be payable with interest @9.100/o p.a. till the date ofactual realization. iii. tion. iii.

The respondent/promoter is directed to handover possession ofthe unit to the complainants/allottee in terms of the MoU as well as buyer's agreement executed between them, on payment of outstanding dues if any, within 60 days.

The respondent is further Page 25 ot 26 trHARERA dS- eunuennvr Complaint no.6000 of2022 and l other directed to get the conveyance deed of the allotted unit executed in their favour in terms of Section 17(1J of the Act of 2016 on payment of stamp duty and registration charges as applicable within three months from the date of this order. iv.

The respondent/promoter shall charge actual VAT from the allottees/prospective buyers paid by the promoter to the concerned department/authority on pro-rata basis i.e. depending upon the area ofthe flat allotted to the complainants vis- a-vis the total area ofthe particular prorect.

However, the complainants would also be entitled to proof of such payments to the concerned department along with a computation proportionate to the allotted unit, before making payment under the aforesaid heads.

Further, in case, the respondent has received excess amount towards VAT, then the same shall be refunded to the complainants. v.

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

44.

This decision shall mutatis mutandis apply to cases mentioned in para 3 of this order.

45.

46.

The complaints stand disposed of.

Files be consigned to registry.

Haryana Real Estate (Ashok M Authority, Gurugram Dated:23.04.2025 Page 26 ot