DINESH NARULA vs VATIKA LTD

HARTR& Complaint no.5077 of 2023 and 5 Others ffiGURUGI?AM BEFORE THE HARYANA REAL ESTATE REGUTATORY AUTHORITY, GURUGRAM Date of decision: Oq.OT.ZOZ1 Name of the Builder Vatika Limited Proiect Name "Vatika India Next City Centre" Situated at: Sector 83, Gurugram Sr.

No.

Case No.

Case title APPEARANCE 1. cR/s077 /2023 Shriya Takkar, Advocate (Complainant) Ankur Berry, Advocate (Respondent) 2. cR/s078/2023 Dinesh Narula Y/s Vatika Limited Shriya Takkar, Advocate [Complainant) Ankur Berry, Advocate IRespondent) 3. cR/5079 /2023 Shriya Takkar, Advocate [Complainant) Ankur Berry, Advocate (RespondentJ 4. cR/s080/2023 Vatika Limited Shriya Takkar, Advocate IComplainant) Ankur Berry, Advocate IRespondentJ 5. cR/s08r/2023 Dinesh Narula v/s Vatika Limited Shriya Takkar, Advocate (Complainant) Ankur Berry, Advocate IRespondent) 6. cR/s083/2023 Dinesh Narula Y/s Vatika Limited Shriya Takkar, Advocate (Complainant) Ankur Berry, Advocate (Respondent) Page 1 ofSZ q/ Dinesh Narula v/s Vatika Limited Dinesh Narula Y/s Vatika Limited ffi 1l,ir1 ffis HARER& GURUOI?AM CORAM: Shri Ashok Sangwan The core issues complainant[s) i projects, namely, by the same respo 3.

The details of the complain and allotment, due date of Complaint no.5077 of 2023 and 5 Others Member are allottees of the TRE'being developed us, unit no., date of agreement, 1..

ORDER This order shall dispose of all the 6 complaints titled as above, filed before this authority in Form CRA under Section 31 of the Real Estate fRegulation and Development) Act, 2016 (hereinafter referred as "the Act") read with Rule 28 of the Haryana Real Estate (Regulation and Development) Rules, 201,7 referred as "the rules") for violation of Section f f l+11a] of;l herein it is inter alia prescribed that the promoter for all its obligations, responsibilities an allottees as per the agreement for sale executed inte parties. e parties. om them are similar in nature and the possession, offer of possession and relief sought are given i table belc Project Name and Location "India Next City Centre", Sector 83, Vatika India Next, Gurugram, Haryana.

Nature of the proiect Commercial complex Area of the project L0.72 acres DTCP License no.

I22 of 2008 dated L4.06.2008 Valid up to 13.06.20L8 RERA registered or not Not registered Possession clause 2 of BBA Clause 70 - Force Majeure ".......Subject to the aforesaid and subject to timely payment by the buyer of sale price, stamp duty and other charges due and payable according to the payment plan applicable to PageZ of32 ,/ .J;i-.

W- ffi HARER& GUt?UGl?AM Complaint no.5077 of 2023 and 5 Others him or as demanded by the developer, the Developer contemplates to complete construction of the said Commercial llnit within 48 months of execution of this Agreement." (Emphasis suppliedl Assured return clause Clause 72.

Assured Return and Leasing Arrangement "Since the Buyer has paid the full basic sale consideration for the said Commercial Unit upon signing of this Agreement and has also requested for putting the some on lease in combination with other adjoining units/spaces pf ,ather'awners after the said Building is ready for occupation and use, the Developer has agreed to pay Rs.

65 (Rupees Sixty-five only) per sq. fi, super area of the said iommercial Unit per month by way of assured return to the Buyer from the date of execution of this 'agreement till the completion of construction of the said Building.

The Buyer hereby gives full authority and powers to the Developer to put the said Commercial llnit in combination with other adjoining commercial units of other owners, on lease, for and on behalf of the Buyer, as andwhen the said Building/ said Commerciql Unit is ready and fttfor occupation.

The Buyer has clearly underitiod the general . general .risks involved in giving any premises on lease to hi, nd has undertaken to bear the said risks exclusively without any tiability whatsoever on the part of the Developer or the Confirming Party.

It is further agreed that: @ fhe Developer will pay to the Buyer Rs.

65 (Rupees Sixty-five ) per sq. ft. super area of the said Commercial llnit as committed return for upto three years from the date of completion of construction of the said Building or till the said Commercial Unit is put on lease, whichever is earlier.

After the said Commercial Unit is put on lease in the above manner, then payment of the aforesaid committed returnwill come to an end and the Buyer will start receiving lease rental in respect of the said Commercial Unit in Page 3 of32 ffiffi HARER,\ S- cllRUcRAM Complaint no.5077 of 2023 and 5 Others accordance with the lease document os may be executed and as described hereinafter......." (Emphasis suooliedl 0ccupation certificate Not obtained Offer of possession Not offered Sr.

Complaint No., Case Title, and Date of filing of complaint Unit no. and size Date of execution ofBBA Total Sale Consideration / Total Amount paid by the comDlainants Offer of possession/AR paid to complainant 1. cR/5077 /2023 Dinesh Narula Vs.

Vatika Ltd.

DOF:06.11.2023 ReolvtZB.02.2024 218, Block E, 2nd floor measuring 500 sq. ft. fpage 23 of complaintJ TSC- Rs.20,00,000/- (as per BBA at page 23 of complaint) AP- Rs.20,00,000/- (as per BBA at page 23 of complaint) Not 0ffered/ Rs.25,45,484/- till October, 2018 (As pleaded by respondent at page B ofreply) 2.

Vs.

DOF:06.11.2023 Reply:29.02.2024 cR/s078/2 Dinesh 1.6.04.201.2 -.....::i #;"::;..'.i.'x' - )0,000/- atpage 23 t) ),000/- at page 23 r) [as per. of comp AP- Rs.l [as per of comp Not Offered/ Rs.25,45,484/- rill October, 2018 (As pleaded by respondent at page 8 of reply) 3. cR/s079/2023 Dinesh Narula Vs.

DOF:06.1L.2023 ReplytZB.02.2024 2L9, 16.04.2012 (page 21 of complaintJ TSC- Rs.

J TSC- Rs.20,00,000/- at page 23 page 23 Not Offered/ Rs.25,45,484/- till october, 2018 (As pleaded by respondent at page 8 of reply) 4. cR/5080/2023 Dinesh Narula Vs.

DOF:06.11.2023 ReoW:29.02.2024 2L5, Block E, 2nd floor measuring 500 sq. ft. (page 23 of complaint) 1.6.04.201.2 (page 21 of complaint) TSC- Rs.20,00,000/- (as per BBA at page 23 of complaint) AP- Rs,20,00,000/- (as per BBA at page 23 of complaintJ Not Offered/ Rs,25,45,484/- till october, 2018 (As pleaded by respondent at page I ofreply) Page 4 of32 ( 16.04.201.2 (page 21 of conrplaintJ 220, Block E, zl}a floor measunng 500 sq. ft. (page 23 of complaint) 5. cR/soBl/2023 Dinesh Narula Vs.

DOF:06.11.2023 Reply:Z9.02.2024 217, Block E, 2nd floor measuring 500 sq. ft. fpage 23 of complaint) 16.04.2012 (page 21 of complaint) TSC- Rs.20,00,000/- (as per BBA at page 23 of complaintJ AP- Rs.20,00,000/- (as per BBA at page 23 of complaintJ Not Offered/ Rs.25,45,484/- till October, 2018 (As pleaded by respondent at page B ofreplyJ 6. cR/so83/2023 Dinesh Narula Vs.

DOF:06.11.2023 Reply:Z8.02.2024 216, Block E, 2nd floor measuring., 500 sq. fti',- fpage 23 of: complaintJ: j::.:::]..

1.6.04.2012 (page 21 of complaint) TSC- Rs.20,00,000/- (as per BBA at page 23 of complaintl AP- Rs.20,00,000/- (as per BBA at page 23 of complaint) Not Offered/ Rs.25,45,484/- till October, 2018 (As pleaded by respondent at page B ofreply) The complainants in the above complaints have sought the following reliefs: 1.

Direct the respondent to pay the delay penalty charges with interest as per the RERA Act, from the due date ofpossession.

2.

Direct the respondent to make payment on account of assured returns calculated @ Rs.65/- per sq. ft. per month on 500 sq- ft. ite., Rs.32,500/- per month w.e.f.

01.10. .f.

01.10.2018 till date (73 months) along with interest @ 180/o on delay and further issue directions to the respondent to keep paying assured returns in terms of clause 1,2 of buyers of0C and handing over ofpossession. of assured returns calculated @ Rs.65/- per sq. ft. per monthuon ., Rs.32,500 /- per month for a further 3. agreement till completion of the pro)ect/ Direct the respondent to make payment 4.

5.

6. period of three ye4r,f [as per clau:: 12 o-!..,::q A) from completion of the project/receipt of OC along with irtilp-re$t @ 18% dn dblaf- the exc€'ption:being leasing it out only with the written conseiit of the complainants to the terms and conditions of lease transaction with the proposed lessee.

Direct the respondent to handover actual, physical, vacant possession of the commercial unit completed in all respects along with the grant of OC/CC.

Direct the respondent to execute the sale deed ofthe above said unit in favour ofthe complainant.

Allocate car parking space to the complainant in terms of letter dated 08.05.2012.

Note: In the table referred above certain abbreviations have been used.

They are elaborated as follows: Abbreviation Full form DOF Date of filing of complaint TSC Total sale consideration AP Amount paid by the allottee/s AR Assured Return ffi ffi HARERE GUt?UGt?AM Complaint no.5077 of 2023 and 5 Others Page 5 of32 4/ HARER& W.* GUI?UOI?AM The facts of all the complaints filed by the complainants/ allottees are also similar.

Out of the above-mentioned cases, the particulars of lead case cR/5077/2023 titled as "Dinesh Narula v/s vatika Limited" are being taken into consideration for determining the rights of the allottees qua assured return, delay possession charges, physical possession and conveyance deed.

Unit and project related details The particulars of unit details, sale consideration, the amount paid by the complainant, date of proporg$l$fl,t-*ing over the possession, date of buyer's agreement etc, haVe bee,$rydetailOdjn the followi he following tabular form: CR/5077/2023,titled as "biiesh Narula V/s Vatika Limited" Complaint no.5077 of 2023 and 5 Others 4.

A.

Sr.

Particulars Details 1.

Name of the project rVatika India Next City Centre", Sector-83, Gulugram 2.

Project area 10.72 acres 3.

Type of colony Commercial Complex 4.

RERA registeredf not registered and validity status Not Registered 5.

DTCP license no. and validity status \HZ ot 2008 dated 14.06.2008 valid uilto 13.b5,201S 6.

Name of the Licensee M/s Trishul Industries 7.

Unit no. pnlt no: ,2L8; Znd floor, Block E admeasuring 500 sq. ft. (Page 23 of complaint) B.

Date of execution of buyer's agreement 16.04.20L2 (Page 2L of complaint) 9.

Assured Returns clause Clquse 72.

Assured Return and Leasing Arrangement "Since the Buyer has paid the full basic sale consideration for the said Commercial Unit upon signing of this Agreement and has also requested for putting the same on lease in Page 6 of32 ffi ffi i{ARERA OURUGI?AM Complaint no.5077 of 2023 and 5 Others combination with other adjoining units/spaces of other owners after the said Building is reody for occupation and use, the Developer has agreed to pay Rs.

65 (Rupees Sixty-ftve only) per sq. ft. super area of the said Commercial Unit per month by way of assured return to the Buyer from the date of execution of this agreement till the completion of construction of the said Building.

The Buyer hereby gives full authority and powers to the Developer to put the said Commercial Unit in combination with other adjoining commercial units of other owners, on lease, for ond on behalf of the Buyer, as and when the said Building/ said Commercial Unit is reody and fit for occupation.

The Buyer has c.learly understood the general risks involved in giving any premises on lease to third parties and has undertaken to bear the said rrsks exclusively without any liability whatsoever on the part of the Developer or the Confirming Party. ing Party.

It is further agreed that; fl fhe Developer will pay to the Buyer Rs.

65 (Rupees Sixty-ftve ) per sq.ft. super area of the said Commercial Unit as committed return for upto three yeqrs from the date of completion of , construction of the said Building or till the s;aid Commercial ltnit is put on lease, whichever is earlier.

After the said I Commercial Unit is put on lease in the I above monner, then poyment of the I aforesaid committed return will come to I on end and the Buyer will start receiving I lease rental in respect of the said I Commercial Unit in accordance with the I lease document as may be executed and as I described hereinofter......." I @mphasis supplied) | fPaee 35 of complaint) 10.

Possession clause Clause 10 - Force Majeure "...,,Subject to the aforesaid and subject to timelv poyment by the buyer of sale price, PageT of32 ffiHARER& #*GuRUCnAM complaint no.5077 of 2023 and 5 Others stamp duty and other charges due and payable according to the poyment plan applicable to him or as demanded by the developer, the Developer contemplates to complete construction of the said Commercial Unit within 48 months of execution of this Agreement." (Emphasis supplied) [BBA at page 34 of complaint) 11.

Due date of possession 76.04.2016 (Calculated to be 48 months from the date of ,qSecution of builder buyer agreement) 1.2.

Total sale consideration Rs.

20,00,000/- (BBA at page 23 of complaint) 13.

Paid up amount R$,20,00,000/- , [B.BA at page 23 of complaintJ 14.

E-mail sent by reapohdent to complainant confirming that project is ready and available for leasing 29,02.20t6 (As pleaded by respondent at page 13 of reply) [Document not placed on recordJ 15.

Letter of completion construction sent respondent of by 26.03.201.8 [Page 59 of reply) 16.

Assured returns paid by respondent to complainants Rs.25,45, 484 / - till October, 2018 (As pleaded by respondent at page B of reply) 1,7. eply) 1,7.

E-mails sent by respondent to complainants regarding stoppage of assured returns 3[.

10.201 B, 30, 1 1.201.8, 28.1,2.201,8 (Page 46, 47 and 50 of reply respectively) 18.

E-mail sent by respondent to complainants regarding reconciliation of accounts of the complainant 1,4.06.201,9 [Page 12 of written submissions filed by respondent) 1,9, Legal notice sent by complainants to 28.08.2019 (Page 43 of complaint) Page 8 of32 IIARER& ffiGURUOI?AM respondent for payment of pending assured returns 20.

Occupation certificate/ Completion certificate Not obtained B.

Facts of the complaint 6.

The complainant has made the following submissions in the complaint as well as rejoinder dated 15.1.0.2024: a) That the complainant is a law-abiding citizen and permanent Complaint no.5077 of 2023 and 5 Others resident of Delhi.

He is the buyer/allottee of unit bearing no.

2l-BE having 500 sq. ft., INXT City Centre situated in Sector-BiJ, Gurugram, Haryana being developed by the respondent. b) That sometime in 20 1,2, the respondent through their officials and c) representativ commercial "guaranteed and a complainant upon a full consideration.

It was assured that the respondent shall allot commercial units to the complainant, immediately upon payment and pursuant to that, he shall pay monthly assured return to the complainant.

That as per the agreement, monthly assured return shall be paid to the complainant till the time the units are ready for possession and subsequently, for 3 years from the date of completion of the project and the receipt of completion certificate/occupation certificate for the project.

That the complainant was induced to part with his money and made a payment of Rs.20,51,500/- to the respondent towards the sale d) Page 9 of32 HARER& ffiGURUGIlAM consideration of the unit.

The parties entered into a builder buyer agreement dated L6.04.20t2.

As per the agreement, the respondent had to pay assured return @ Rs.

65/ sq. ft. which would total to Rs. tal to Rs.

32,500/- per month to the complainant till the completion of the construction of the project and subsequently, for 3 years after the completion of construction and receipt of the CC/OC. e) That as per the agreea terTlii i sum of Rs.

32,500 /- was payable by the respondent to the Co,$:teinant, every month for his unit.

The assured return was paidfi..fui, t!- respondent till September 2018 -&t Complaint no.5077 of 2023 and 5 Others where-after, it has been abruptly stopped by the respondent from 01.10.2018 and nothing paid since then.

Further, the project is far from completion and no OC/CC is received till date despite the categorical assurance of the builder to complete the construction in a time bound manner.

That the complainant through their counsel sent a legal notice dated 28.08.2019 to the respondent.

However, despite duly receiving the legal notice the respondent did not pay any heed towards the same and did not reply, leave alone paying the due amount.

As per section 27 of the General Clauses Act, 1897, a notice is deemed to be served/delivdred whfrti &ent Uy r"gisier"d speed post unless the contrary is proved by the addressee. g) That despite the complainant's numerous requests to the respondent to abide by the buyer's agreement, the respondent fails to give any sort of information / remit the assured returns to the complainants and/or complete the project or even give a firm commitment about the completion of the project.

Page 10 of 32 HARERA Complaint no.5077 of 2023 and 5 Others W* OURUGI?AM h) That the complainant had filed the complaint under Section 31 of the RERA Act, 201,6, in luly 2022 for all the 5 units purchased admeasuring 2500 sq. ft., whereby the Hon'ble Tribunal gave liberty to the complainant to file separate complaint in respect of each of the unit allotted to the complainant. i) The cause of action in favour of the complainant arose- i.

When the respondent failed to handover the possession of the commercial unit bearing na. earing na.21BE as per the date stipulated in the builder buyer agreement. ii.

When the respondent failed to make the payment ol'the assured return and despite the notice dated 28.08.2019 failed to honour his obligations and yet remains in default.

There is hence a continuing cause of action. iii.

When the respondent has till date failed to obtain CC/OC and to complete the project.

The cause of action again is continuing and the respondent has yet not been able to complete the project and provide the CCIOC. j) That an amount of Rs.25 ,45,484f- was paid as assured return to the complainant from August, 201.2 till September, 201,8.

C.

Relief sought by the complainant: 7.

The present complaint was filed by the complainant on 06.11.2023 seeking the following reliefs: 1.

Direct the respondent to make pqyment on eccount of assured returns calculated @ Rs.65/- per sq. ft. per month on 500 sq. ft. i.e., Rs.3Z,S00/- per month w.e.f.

01.10.2018 till date (59 months) on 500 st1. ft. i.e,, Rs.1-9,17,500/- along with interest @ 1-80/o on delay.

Direct the respondent to make payment on account of assured returns calculated @ Rs.65/- per sq. ft. per month on 500 sq. ft. i.e., 11s.32,500/- per month w.e.f.

01.09.2023 till the completion of the project and receipt of Page lL of32 HARER& W.* GUI?UGRAM OC/CC and thereafter, for a period of 3 years from then, along with interest @ 18% on delay.

3.

Direct the respondent to handover actual, physical, vacant possession of the commercial unit bearing no.

218E, completed in all respects along with the grant of )C/CC.

4.

Direct the respondent to execute the sale deed of the above said unit in favour of the complainant.

Direct the respondent to pay the delay penalty charges with interest as per the RERA Act, from the due date of possesston.

Thereafter, the complainant had filed an application for amendment of relief dated 1,5.1,0.2023 wherein he prayed that the relief sought clause may be read as follows: 1". llows: 1".

Direct the respondent to make payment on account of assured returns calculated @ Rs.65/- per sq. ft.per month on 500 sq. ft. i.e., Rs.32,500/- per month w.e.f.

01.10.2018 till date (73 months) along with interest @ L80/o on delay and further isiue directions to the respondent to keep paying assured returns in terms of clause 12 of buyers agreement till completion of the project/receipt of 0C and handing over of possession.

Direct the respondent to make poyment on account of assured returns calculated @ Rs.65/- per sq. ft. per month on 500 sq. ft. i.e., Rs.32,500/' per month for a further period of three years (as per clause 12 of BBA) from completion of the project/receipt of 0C along with interest @ L80/o on delay, the exception being leasing it out only with the written consent of the complainants to the terms and conditions of lease transaction with the proposed lessee, 3.

Direct the respondent to handover actual, physical, vacant posse'ssion of the commercial unit bearing no.

21.8E, completed in all respects along with the grant of )C/CC.

Direct the respondent to pay the delay penalty charges with interest as per the RERA Act, from the due date of possession.

6.

7.

Award compensation to the extent of Rs.20,00,000/- on acc'ount of mental agony, harassment and torture due to illegal acts and conduct of the respondent compony.

B.

Award litigation costs to the tune of Rs.2,00,000/- to the complttinant." Page 12 of 32 Complaint no.5077 of 2023 and 5 Others B. ffiHARER& ffiGURUGRntr,t I.

Complaint no.5077 of 2023 and 5 Others A reply to the said application has been filed by respondent on 13.12.2024.

After hearing both the parties at length, vide proceedings dated 05.02.2025 the application for amendment in relief dated 1,5.1,0. d 1,5.1,0.2023 was allowed to the extent of relief no.

1 to 6.

Accordingly, the Authority is proceeding against the said relief[s) sought by the complainants, as under: Direct the respondent to make payment on account of assured returns calculated @ Rs.65/-per sq, ft. permonth on 500 sq. ft. i.e., Rs.32,500/- per month w.e.f.

01.10.2018 till date (73 months) along with interest @ 180/o on delay and further issue directions to the respondent to keep paying assured returns in terms of clause 12 of buyers agreement till completion of the project/receipt of OC and handing over of'possession.

Direct the respondent to make payment on account of assured returns calculated @ Rs.65/-per sq. ft. per month on 500 sq. ft. i.e., Rs.32,soo/- per month for a further period of three years [as per clause 12 of BBA) from completion of the project/receipt of OC along with interest @ l9o/o on delay, the exception being leasing it out only with the written consent of the complainants to the terms and conditions of lease transaction with the proposed lessee.

Direct the respondent to handover actual, physical, vacant possession of the commercial unit completed in all respects along with the grant of oclcc.

II.

III.

IV.

V.

Page 13 of32 7/ -$ffiHARER,q ffi GURUottAM Complaint no.5077 of 2023 and 5 Others VI.

9.

On the date of hearing, the authority explained to the respondent /promoter about the contraventions as alleged to have been committed in relation to Section 11[ ) (a) of the Act to plead guilty or not to plead guilty.

D.

Reply by the respondent 10. ondent 10.

The respondent contested the complaint on the following grounds: a) That the respondent issued communication to all its allottees of the project "[NXT City Centre" from company e-mail id no.reply(E sal esfo r.Ee. com and no reply@v_atikagrp up. cq m re gardi ng committed returns/assured returns suspension vide e-mail dated 31.10.2018.

The respondent issued second communication to all allottees, through e-mail dated 30.1L,2018 detailing therein the amendments in law regarding the sEBI Act, Bill No.

85 (Regarding the BUDS Act) and other statutory changes which led to stoppage of all the return based/ assured / committed return based sales and the respondent's proposalto reconcile accounts as of f uly,zo19.

The respondent issued third e-mail to all the allottees on z\.lz.z01,B regarding stoppage of assured rentals and reconciliation of all dues by |une, 2019 and issued communication regarding addendum agreement containing revised clauses excluding assured return/committed return clause alternatively giving option to allottees to shift to another project. b) That the respondent on 14.06.2019, issued update to all its allottees regarding reconciliation of accounts as of 30.06.2019 and issuance Page 14 of 32 HARTRA ffiGURUGRAM Complaint no.5077 of 2023 and 5 0thers c) of addendum agreement for revising the clause of assured return and finally stopping the assured returns.

The allottees who chose to cancel the allotment were also provided required document e-mails and were refunded investments.

Thus, the respondent admittedly paid assured returns from the date of execution of BBA till Septemb er, 2018 and at the time of stoppage of assured returns in September 20'1.8, the respondent provided timely detailed communication to all if,q Allottees in the project, however the complainant chose to sit$ i]ijq}ffi of this complaint and now cannot ut- be allowed the relie6,5'5 p$dr" That the issue regardln$ iufisdi:tion ov-er complaint pertaining to assured returnia p€ndi rnia p€nding before various Courts and Tribunals.

One of such mattel.i perta[ning to the que$tion of law "whether the authorities or tibunal can grant relief of assured return after the commencement of BUDS Act" is pending before the Hon'ble Punjab and Haryana High Coult,ln the bunch of petitions tagged with the matter of 'Vatika Limited,', .. ion of India and Anr.' in CWP No.

26740 of 20Z2,,the -FI'i*n'Ble Hi$h C6urt at Funjab and Haryana has restrained the'respondents therein from taking any coercive steps in criminal oaSes registered against the respondent herein, for seeking recovery of assured return till next date of hearing.

That the Uttar Pradesh Real Estate Appellate Tribunal (UPREAT) while adjudicating an appeal titled as "Meena Gupta Vs.

One Place Infrastructures Pvt.

Ltd. [Appeal No.

21L of 2022)" has held that the issue of Assured Return does not fall within the ambit of the Act of 2016 and dismissed the appeal filed by the Appellant/Allottee. d) Page 15 of 32 ffi #*s{ qsQidY HARER& s) Complaint no.5077 of 2023 and 5 0thers 0 OUI?UGIIAM e) Further the RERA Authority of Punjab while adjudicating upon the similar issue of assured return had taken a similar view by observing that the said issue is out of the purview of the Real Estate (Regulation and DevelopmentJ Act of 2016.

In the matter of 'Lalita chauhan vs.

Gupta Builders and Promoter Pvt.

Ltd.' the punjab Real Estate Regulatory Authority evidently held that the concept of Assured Return has no place in the Real Estate (Regulation and Development) Act of 201,6.

That the objective of the Act of 2016 is to regulate the real estate sector in terms of the development of the Project in accordance with the law and to provide relief of interest, compensation or refund to the allottees in case of violation of the provisions of the Act of 2016.

The objective of the Act of 201,6 is very clear to regulate the Real Estate Sector and form balance amongst the Promoter, Allottee and Real Estate Agent. ate Agent.

However, the entire Act of 2016 nowhere provides any provision to regulate the commercial understanding regarding returns on investment or lease rentals between the promoter and the buyer.

That the Act 201,6 provides for three kinds of remedies available to the complainant in the case of any dispute arisen between a promoter and buyer with respect to the development ol'the project.

Such remedy is provided under Section 1B of the RERA Act,201,6 for violation of any provision of the act.

The said remedies are of "Refund" in case the allottee wants to withdraw from the project and the other being "interest for delay of every month" in case the allottee wants to continue in the project and the last one is for Page 16 of32 ffiHARERA ffiouRUGttAM Complaint no.5077 of 2023 and 5 Others "Compensation" for the loss occurred to the allottee, if any, However, nowhere in the said provision the Authority has been empowered with the jurisdiction to grant assured returns or any other arrangement between the parties with respect to investment and returns. h) That the true nature of the relief sought is kind of specific performance of the assured returns commitment.

I'he relief of specific performance flows from the Specific Relief Act,1,963 and no part of the Real Estate (Regulation and Development) Act, 2016 clothes this Authority to exercise powers under Specific Relief Act, 1,963.

Thus, this Authority not being a civil court could not assert to itself the jurisdiction to grant specific performance of the "Assured Returns" which is a relief under the Specific Performance Act,1,963.

While exercising its jurisdiction, the.

Authority should grant due consideration to the principle of law laid down in Commissioner of Income Tax, Mumbai v.

Anjum M.H.

Ghaswala and Ors., AIR 2001 SC 3B68 by a Constitution bench of the Hon'ble Supreme Court of India that "lt is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular particular manner then the said authority has to exercise it only in the manner provided in the statute itself." i) That it is matter of record that there was no possession clause within the BBA.

Only constructive possession of the subject unit was to be delivered.

Since the respondent/promoter is still using complainant's money and occupation certificate has not been obtained till date, therefore, to safeguard the interests of the Page17 of32 $ffiHARERA ffiGunuGRAM Complaint no.5077 of 2023 and 5 Others allottees, the complainant may at best be allowed delay possession charges at the prescribed rates from due date of possession till receipt of occupation certificate plus two months as per section 13(1) of the Act of 201,6 after adjustment of assured returns. j) Therefore, considering the facts of the present case, and to ensure no prejudice is suffered by the complainants, the respondent may be directed to pay the amount of delayed possession charges at the prescribed rate for every month of delay till offer of possession plus two months, as per section xB(1) of the Act of 201,6 read with rule 15 of the Rules, after deducting the amount of assured returns already paid till Septemb er,2O1.B. k) With regard to issue of physical possession, the agreed BBA between the complainant and the respondent shows that the Unit allotted to the complainant was not intended to be handed over to the complainant since it was a part of bigger floor plate and to be leased out to third parties together with such similar other units in that floor.

The complainant was well aware of the fact, that the commercial unit in question was deemed to be leased out upon completion and the same was evidently mentioned and agreed by the complainant in the agreement. l) That it is admitted fact that OC in respect of the project where the subject unit is situated has not been obtained by the trlromoter till date. till date.

As on date, the conveyance deed cannot be executed in respect of the subject unit, however the respondent is contractually and legally obligated to execute the conveyance deed upon receipt of the occupation certificate from the competent authority.

Thus, the relief Page 18 of 32 c/ HARER& Complaint no.5077 of 2023 and 5 Others W"* OURUGI?AM regarding execution of the conveyance deed of the allotted unit is premature and complainant's right to execution of con,v'eyance deed would arise only after receipt of OC from the statutory authority.

11,.

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 those undisputed documents and submissions made by the parties.

E. )urisdiction of the authority 12.

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

E.

I Territorial iurisdiction 13.

As per notification no.

1/92/201,7-1TCP dated 14.12.2017 issued by Town and Country Planning Department, Haryana, the jurisdiction of Haryana Real Estate Regulatory Authority, Gurugram shall be entire Gurugram district for all purposes.

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

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

II Subiect-matter iurisdiction 14.

Section 1I(4) (a) of the Act, 201.6 provides that the promoter shall be responsible to the allottees as per agreement for sale.

Section 11[ ) [a) is reproduced as hereunder: "Section fi@) (a) Be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulations made thereunder or to the allottees as per the agreement for sale, or to the association of allottees, as the case may be, till the conveyance of all the apartments, plots or buildings buildings, Page 19 of32 4/ ffiHARERA ffiGuRLIGRAM as the case may be, to the allottees, or the common areas to the association of allottees or the competent authority, as the cose may be.

Section S4-Functions of the Authority: 344 to ensure compliance of the obligations cast upon the promoters, the ollottees and the real estate agents under this Act and the rules and reg ulotions made thereunder." 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 lgav-ing aside compensation which is to be decided by the adjudicatinlioffper if pursued by the complainant at a ---'l*- later stage. ffi' " r '+ Findings on the objections raised by the respondent F.l.

Pendency of petiUon*f#$orr'ble puniab and Haryana High Court regarding assured return The respondent \as raised an objection that the Hon'ble High Court of Punjab & Haryana in CWP No.26740 of 2022titled as "Vatika Limited Vs. union of India & o1s.", took the cognizance in respect of Banning of unregulated Depositl"scheme.s A,ct, ,zr0!9 and restrained the union of India and the State of Ha.praLa fro"m taking coercive steps in criminal cases registered against the Company for seeking recovery against deposits till the ne;t 4.,.gt" of heaLyrg- ', ', .+ - With respect to the aforelfd gontention, the authority place reliance on order dated 22.11,.2023 incwP No.26740 of z0zz (supra), whereby the Hon'ble Punjab and Haryana High Court has stated that- "...there rs no stay on adjudication on the pending civil appeals/petitions before the Real Estate Regulatory Authority as also against the investigating agencies and they are ot liberty to proceed further in the ongoing mqtters that are pending with them, There is no scope for any further clarification." Thus, in view of the above, the authority has decided to proceed further with the present matter.

15.

F.

16.

1,7.

Complaint no. plaint no.5077 of 2023 and 5 Others Page2O of32 HARERE ffi GURUGI?AM Findings on the relief sought by the complainant: G.l Direct the respondent to make payment on account of assured returns calculated @ Rs.65/- per sq. ft. per month on 500 sq. ft. i.e., Rs.32,500 /- per month w.e.f.

01.10.2018 till date (73 months) along with interest @ LBo/o on delay and further issue directions to the respondent to keep paying assured returns in terms of clause LZ of buyers agreement till completion of the proiect/receipt of OC and handing over of possession.

G.II Direct the respondent to make payment on account of assured returns calculated @ Rs.65/- per sq. ft. per month on 500 sq. ft. i.e., Rs.32,500 /- per month for a further period of three years (as per clause 12 of BBA) from completion of the proiect/receipt of OC along with interest @ LBo/o on delay, the exception being leasing it out only with the written consent of the complainants to the terms and conditions of lease tiansaction with the proposed lessee.

G.III Direct the respondent to pay the delay penalty charges with interest as per the RERA Act, from the due date of possession.

The common issues with regard to assured return and delay possession charges are involved in the aforesaid complaint.

I.

Assured Returns 19.

The complainants are seeking unpaid assured returns on monthly basis as per the builder buyer agreement dated 1,6.04.2012 rat the rates mentioned therein.

It is pleaded that the respondent has not complied with the terms and conditions of the said addendum agreement.

Though for some time, the amount of assured returns was paid but later on, the respondent refused to pay the same by taking a plea that the same is not payable in view of enactment of the Banning of Unregulzrted Deposit Schemes Act,2019 (hereinafter referred to as the Act of 2019), citing earlier decision of the authority [Brhimjeet & Anr.

M/s Landmark Apartments Pvt.

Ltd.

Pvt.

Ltd., complaint no r41, of 2018) whereby relief of assured return was declined by the authority.

The authority has rejected Complaint no.5077 of 2023 and 5 Others G.

18.

PageZL of32 ffiilARERA ffi GuRUGRAM rrr Lrre autnority has held that when payment of assured returns is part and parcer of builder buyer's agreement fmaybe there is a crause in that document or by way of addendum, memorandum of understanding or terms and condiilons of the allotment of a unit), then the builder is liablerto pay that amount as agreed upon and the Act of 201,9 does not creat;e a bar for payment of assured returns even after coming into operation as the payments made in this regard are protected as per sectio n z@)(r)[iiiJ of the Act of 201g.

Thus, the prea advanced by the respondent is not sustainabre in view of the aforesaid reasoning and case cited above.

20' The money was taken by the bu,der as deposit in advance against allotment of immovable property and its possession was to be offered within a certain period' However, in view of taking sare considc=ration by way of advance, the builder promised certain amount by way,f assured returns for a certain period. so, on his fairure to furfir that commitment, the comprainant-arottee has a right to approach the authority for redressar of his grievances by way offiring a compraint.

21' 'fhe buirder is liabre to pay that amount as agreed upon and can,t take a plea that it is not riabre to pay the amount of assured return.

Moreover, an agreement defines the buirder/buyer rerationship. so, it can be said that the agreement for assured returns between the promclter and allotee arises out of the same relationship and is marked by the original agreement for sale.

G ;:ff: ,:::::u:kand anr. vs. vatika Ltd,wherein the authority 22' It is not disputed that the respondent is a rear estate deveroper, and it had not obtained registration under the Act of 2o1,6for the project in Page 22 of 32 Complaint no. plaint no.

5077 of Z023 and 5 Others ,/ HARER& ffi OURUGI?AM question.

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

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

In view of the above, the respondent is liable to pay assured return to the complainant-allottee in terms of the builder buyer agreement dated 16.04.2012.

G.ll.

Delayed possession charges 23.

In the present complaint, the complainant intends to continue with the project and is seeking possession of the subject unit and delay possession charges as provided under the provisions of Section 1B(1) of the Act which reads as under: "section 78: - Return of amount and compensation 1B(1-).

If the promater fails to complete or is unable to give possession of an apartment, plot, or building, Provided thatwhere 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 the possession, at sut:h rate as may be prescribed" 24.

A builder buyer agreement executed between the parties and the due date of completion of the project is calculated as per clause 10 of BBA i.e., 48 months from the date of execution of this agreement. 'Ihe relevant clause is reproduced below: Clause 70 - Force Majeure ".......Subject to the aforesaid and subject to timely payment by the buyer of sale price, stamp duty and other charges due and payable Page23 of32 Complaint no. plaint no.5077 of 2023 and 5 Others ( ffiffiHARERA ffiC[uGrrAM according to the payment pran appricabre to him or as demanded by the developer, the Developer conttemplates to complete const,uction of the said commercial unit within 4B months of execution of this Agreement.,, (Emphasis supplied) 25' Admissibility of delay possession charges at prescribed rate of interest: The comprainants are seeking deray possession charges.

Proviso to section 1B provides that where an allottee does not intend to withdraw from the project, he shar 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 of the Rules, ibid.

Rule 15 has been reproduced as under: "Rure 75. prescribed ra_te of interest- [proviso to section 72, section rc ani iu;-t';;rt";"i+j ora subsectiin (z) of section 791 For the purpose ofproviso to section 12; section LB; and sub-sections (4) and (7) of section L9, the ,,interest at the rate prescribed,, shal be the state Bank of India highest marginar cost of rending rate +Z%.: provided that in case the State Bank of India marginar cost of lending rate (MCLR) is not in ,se, it sha, be repraced by such benchmark rending rates which the state Bank of India may fix from time to time for lending to the general public.,, 26' The legislature in its wisdom in the subordinate legislation under the Rule L 5 of the Rules, ibid has determined the prescribed rate of interest. consequently, as per website of the state Bank of India i.e., httos://sbi.co.in, the marginar cost of rending rate [in short, MCLR) as on date i.e., 09.07.202s is 9.L00/0.

Accordingry, the prescribed rate of interest wilr be marginar cost of rending rate +zo/oi.e., i. r.Lo%.

27 ' 0n consideration of documents available on record and submissions made by the complainants and the respondent, the authority is satisfied that the respondent is in contravention of the provisions of the act, the Pe ct, the Perye 24 of 32 1/ ffiHARER,q ffiGrRllen[rvr 29.

Complaint no.5077 of 2023 and 5 Others 28. construction of the project was to be completed within a stipulated time i.e., by 23.08.2016.

However now, the proposition before it is as to whether the allottee who is getting/entitled for assured return even after expiry of due date of possession, can claim 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 allottees on account of provisions in the buyer's agreement dated 1,6.04,2012.

The assured return in this case is payable as per clause 12 of the "builder buyer agreement" wherein the promoter had agreed to pay to the complainant-allottee <65 /- per sq. ft. on monthly basis till the completion of construction of the building and t65/- per sq. ft. on monthly basis after the completion of the building.

If we compare this assured return with delayed possession charges payable under proviso to Section 1B(1) of the Act, 2016, the assured return is much better as is encapsulated in the following table for all the 30. complaints: By way of assured return, the promoter has promised that the allottee would be entitled for the specific amount of assured return till the said unit is put on lease and thereafter he shall be entitled for lease rental as agreed.

The purpose of delayed possession charges under Section 18 of Page25 of32 Sr.

Complaint no.

Assured return payable per month as per addendum agreement Delay possession charges payable per month as per the RERA Act 1.. cR/4930/2023 t32,500/- <2L,456/- 2. cR/493t/2023 <32,500 /- <27,456/- 3. cR/4932/2023 r32,500/- <21,,+56/- 4. cR/4934/2023 132,500/- <21,,456/- 5. cR/4935/2023 r32,500/- <21,456/- t/ assured return.

The same is to safeguard the interest of the allottees as their money is continued to be used by the promoter even after the ffiHARERA #* eunuenAM Complaint no. plaint no.5077 of 2023 and 5 Others the Act after due date of completion of project is served on payment of promised due date and in return, they are to be paid either the assured return or delayed possession charges, whichever is higher.

31.

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

32.

On consideration of the documents available on the record and submissions made by the parties, the complainants have sought the amount of unpaid amount of assured return as per the telrms of BBA along with interest on such unpaid assured return.

As per the builder buyer agreement dated 1,6.04.2012,the promoter had agreed to pay to the complainant-allottee <65 /- per sq. ft. on monthly basis till completion of construction of the building and <65/- pL,r sq. ft. on monthly basis after the completion of the building.

It is matter of record that the amount of assured return was paid by the respondent promoter till September 201,8 but later on, the respondent refused to pay the same by taking a plea of enactment of Act of 201,9.

However, the Act of 201,9 does not create a bar for payment of assured returns even after coming into operation and the payments made in this regard are protected as per Section2(4)(iii) of the above-mentioned Act.

Page 26 of 32 ffi ffi ;' HARER& Complaint no.5077 of 2023 and 5 Others GUI?UGRAM In the present complaint, OC/CC for the block in which unit of complainants is situated has not been received by the promoter till this date.

Perusal of assured return clause mentioned in the BBA reveals that the stage of offer of possession by respondent is not dependent upon the receipt of occupation certificate. rtificate.

However, the Authority is of the view that the construction cannot be deemed to complete until the OC/CC is obtained from the concerned authority by the respondent promoter for the said project.

Admittedly, the respondent has paid an amount of <25,45,484/- to the complainant as assured return till September 201,8.

Therefore, considering the facts of the present case, the respondent is directed to pay the amount of assured return at the agreed rate i.e., @ Rs.65/- per sq. ft. per month from the date the payment of assured return has not been made i.e. from October 201,8 till date of completion of construction of building [post receipt of occupation certificate) and thereafter, Rs.

65 / - per sq. ft. per month as minimum guaranteed return up to 36 months from the date of receipt of occupation certificate after the completion of the said building or till the date the said unit is put on lease, whichever is earlier.

Further, the Authority declines to order payment of any amount on account of delayed possession charges as their interest has been protected by granting assured returns till completion of construction of the unit and thereafter also up to 36 months at different rate from date of completion of the said building or the said unit is put on lease, whichever is earlier.

Accordingly, the respondent is obligated 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, from 34.

PageZ7 of32 ffiHARER.,*' ffi oURUGRAM Complaint no.5077 of 2023 and 5 0thers the complainant and failing which that amount would be payable with interest @ 9.L00/o p.a. till the date of actual realization.

G.lV Direct the respondent to handover actual, physical, vacant possession of the commercial unit, completed in all respects along with the grant of OC/CC.

35.

OC/CC.

It is important to note that the complainants have failed to put forth any document to show that the said builder buyer agreement was executed under coercion.

Also, no objection/protest whatsoever was made by the complainants at any point of tfn$$.,ii*.. the execution of the builder buyer agreement.

Accorairgtfiliffil, of clause 1,2 of the BBA, handing 36. over the physical possession was never the intent of the respondent rather the unit was to be leased out.

The authority observes that the respondent is obligated to handover the possession of the unit to the complainant in terms of the buyer's agreement dated 1.6.04.201.2, after obtaining of occupation certificate from the competent authority under Section 1,1(4)[b) read with Section 1,7 of the Act, 201,6.

G.V Directthe respondentto execute the sale deed of the above said unit in favour of the complainant.

Section 17(l) of the Act deals with duties of promoter to get the conveyance deed executed and the same is reproduced below: "77.

Transfer of title.- (1).

The promoter shall execute a registered conveyonce deed in favor of the allottee along with the undivided proportionate title in the common areas to the association of the allottees or the competent authority, as the case may be, and hand over the physical possession of the plot, apartment of building, as the case ma.y be, to the allottees and the common areas to the association of the allottees or the competent authority, as the case may be, in a real estate project, and the other title documents pertaining thereto within specifted period as per sanctioned plans as providetl under the local laws: 37.

Page 28 of32 ffiHARERA #- GuRUoRAM 40.

Complaint no.5077 of 2023 and 5 Others Provided that, in the absence of any local law, conveyance deed in favor of the allottee or the association of the allottees or the competent authority, as the case may be, under this section shall be carried out by the promoter within three months from date of issue of occup e of occupancy certificate.,, 38.

The authority observes that OC in respect of the project where the subject unit is situated has not been obtained by the respondent promoter till date.

As on date, conveyance deed cannot be executed in respect of the subject unit, however, the respondent promoter is contractually and legally obligated to execute the conveyance deed upon receipt of the occupation certificate/completion certificate from the competent authority.

In view of above, the respondent shall execute the conveyance deed of the allotted unit within 3 months after the receipt of the oC from the concerned authority and upon payment of requisite stamp duty by the complainant as per norms of the state government.

G.VI Allocate car parking space to the complainant in terms of letter dated 08.05.2012.

The complainant took a plea that the respondent post execution of agreement issued letter dated 08.05.20 \2, wherein it was stated that in case the allottee intends to purchase car parking, then he would be given 500/o discount on it, at the then prevailing price.

Therefore, the complainant is seeking allocation of car parking space in terms of letter dated 08.05.2012.

Before adjudicating upon the issue, it is pertinent to refer to the relevant portion of the respondent's letter dated 08.05.2012, which reads as under: The first choice of selection of units on the floor offered will be given to your good self at the time of final ollocation.

39. i) Page29 of32 1/ ffiHARERA ffi oUnUGRAM ii) If after the expiry of the first rease, you wish to take physical :;';7 :' :' r'i^' o ;, : :::,' ::,' : : : d t o p u r c h o,, t n, ) o r p a r k i n s space, a S0% discount sha, be o11rr,ra;;;;;;;::i :^y:;:X prevarent price. prease note that this shart be appricabre for the first 10(ten) parking slots purchased. purchased.,, 41 ' In view of the above, this"Authority is of the considered opinion that the complainant is entitled to be considered for the ailotment of car parking space in accordance with the terms set forth in the respondent,s retter dated 0B'05.201,2.

The respondent shail honour the commitment made therein and consider the complainant for ailocation of car parking space, subject to the conditions mentioned in the said letter.

H.

Directions of the authority 42' Hence' the authority hereby passes this order and issues the, forowing directions under section 3z of the Act to ensure compriance of obligations cast upon the promoter as per the function entrusted to the authority under Section 3 $): I' The respondent is directed to pay the amount ,f assured return at the agreed rate i.e., @ 65/_per sq. ft. per month from the date the payment of assured return has not been paid i.e., 0r.10.2018 ti, the compretion of construction of the buirding i'e., after obtaining occupation certificate from the competent authorify and thereafter, <65/-per sq. ft. per month after the compretion of construction of the buirding tiil the date the said unit is put on lease or for the first 36 months after the compretion of the project, whichever is earrier in terms of the buyer's agreement dated 16.04.2012.

II' The respondent is directed to pay the outstanding accrued assured return amount til date at the agreed rate within g0 Page 30 of32 Complaint no.

5077 of 2023 and 5 Others r' HARER& GURUOI?AM days from the date of this order after adjustment of outstanding dues, if any, from the complainant and failing which that amount would be payable with interest @ 9.10o/o p.a. till the date of actual realization, III.

The respondent is directed to handover the possession of the unit to the complainant in terms of the buyer's agreement dated 1,6.04. ed 1,6.04.2012, after obtaining of occupation certificate from the competent authority under Section 1,L(4)(b) read with Section 17 of th allotment of ca tter dated 08.05.2012.

The the conveyance deed of VI.

The respondent shall not charge anything from the agreement.

VIL 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.

This decision shall mutatis mutandis apply to cases mentioned in para 3 of this order wherein details of rate of assured return, area of the unit, amount paid by the complainant-allottees, and amount of assured return received by the complainant is mentioned in each of the complaints.

Complaint no.5077 of 2023 and 5 Others consider the prayer for the allotted unit within the 3 months After the receipt of the OC from the concerned authority and upon pavment of rne ailotteo unlt wltnln tne 5 montns arter the recelpt ot the OC from the concerned authority and upon payment of requisite stamp duty by the complainant as per norms of the state government.

The respondent is Page 31 of32 ,/ ffi ffi {sis m[d 43.

44.

HA&EB& GUI?UGI?AM The complaints stand disposed of.

True certified copies of this order be praced on the case fire of each matter.

45.

Files be consigned to registry.

Dated: O9.O7.ZOZS Ashok (M ryana Real Estatffiegulatory Authority, Gurugram ,t ,. .,., Page 32 of 32