KAMLESH YADAV AND NEETU YADAV vs VIGNESHWARA DEVELOPWELL PRIVATE LIMITED

ffiHARER i ffi eunuenavr Complaint No.

6294 of 2022 and others BEFORE THE HARYANA REAI ESTATE REGULATORY AUTHORITY, GURUGMM Date of decision: - 18.O4.2O25 NAME OF THE BUILDER Vigneshwara Developwell Pvt Ltd PROJECT NAME Aquarius Business Park sector-74 s.

No.

Case No.

Case title Appearance 1. cR/6294/2022 Ravinder Kumar and Ramesh V/s Vigneshwara Developwell Pvt Ltd Shri Avinash Sharma Adv.

IComplainant) None on behalf ofthe respondent 2. cR/6296/2022 Shri Avinash Sharma Adv.

IComplainant) None on behalf ofthe respondent 3. cR/s747 /2022 Mahvir Singh and Ramesh Kumar V/s Vigneshwara Developwell Pvt Ltd ShriAvinash Sharma Adv. (Complainant) None on behalfofthe respondent CORAM: Shri Ashok Sangwan Member ORDER 1.

The order shall dispose offall the three complaints titled as above filed before this authority under section 31 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred as "the Act") read with rule 28 ofthe Haryana Real Estate IRegulation and Development) Rules,2017 (hereinafter referred as "the rules"J.

Since the core issues emanating from them are similar in nature and the complainant[s] in the above referred matters are allottees of the projects, Aquarius Page 1of15 '1/ HARERA GURUGRAI,I Business Park Complaint No.

6294 of 2022 and others sector-74 Gurugram being developed by the same 2. respondent- promoter i.e., Vigneshwara Developwell Pvt Ltd.

The terms and conditions of the builder buyer's agreements that had been executed between the parties inter se are also similar.

The fulcrum of the issue involved in all these cases pertains to failure on the part ofthe respondent/promoter to deliver the possession as per the terms ofthe builder buyers' agreement, seeking refund along with interest.

The details of the complaints, reply status, unit no., date of allotment letter, date of agreement, drie.{6;4- of possession, offer of possession l and relief sought are given in t\SLqb. in t\SLqb.lp below: Possession Clause 11t The developer to the prcposed allottee within sixty months from the date olfinalization oJ construction ond after necessary dpprovols, Oc(upation cerlificate received on N/A Offer of Possession: N/A s r.

N o Complai nt No,/Title /Date of filing/ Reply status Unit/ shop no, and area Date of executioll ofbuilder buyer's agreemen t Due date of possessio n Total sale considera tion Amount Paid up by the complainan t Relief sought 1 cR/6294 12022 DOF: 13.09.20 Reply not filed yet RT. uc-6 on the Upper Croun d Floor 250 sq. ft.

03.09.201 3 03.09.201 6 Rs.

74,70,000 / Rs.

1.4,r0,ooo / - Refirnd along with interest.

2. cRl6296 /2022 D0Fl 13.09.20 22 Reply not filed yet RT- UG-57 on the Upper Groun d Floor 2SO sq. ft.

08.08.201 3 08.08.201 6 Rs.

29,tO,OOO/ Rs.

29,10,000/ - Retund along with interest.

Page 2 of 15 HARERA ffiGURUGRAII cR/57 47 /2022 DOF: 72.09.20 22 Reply not filed yet RT. uc-58 on the Upper Groun d Floor 250 sq. ft.

The facts of all the complaints filed by the complainant(s)/allottee(s) are similar.

Out of the above-mentioned case, the particulars of lead case CR/6294/2022 titled as Ravinder Kumar and Ramesh V/s Vigneshwara Developwell Pvt Ltd are being taken into consideration for determining the rights of the allottee(s).

Unit and proiect related details The particulars of unit details, $ale consideration, the amount paid by the complainants, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: Complaint No.

6294 of 2022 and others Refund along with interest.

3.

A.

4.

13.08.201 13.08.201 3 16 Rs.

77,IO,OOO/ Rs. t7,t0,oo0/. s.

N.

Particulars Details L.

Name of the project Aquarius Business Park sector-74 z.

Nature of the project Commercial complex 3.

RERA Registered/ not registered Not registered 4.

Unit no.

RT-UG-6 on the Upper Ground Floor 5.

Unit area admeasuring 250 sq. ft. upper ground floor 6.

Date of booking 13.0 8.2 013 7.

Date of BBA 03.09.

BBA 03.09.2013 [Page 35 ofthe complaint] 8.

Possession clause 11.

The developer to the proposed allottee within sixty months from the date of finalization of construction and a fte r n e ce ssa ry a p p rov a ls.

Page 3 of 15 I 9.

Due date of possession 0 3.0 9.2 016 [calculated from the date of BBA in absence date of start of constructionl 10.

Total sale consideration Rs.

14,10,000/- 11.

Amount paid by the complainant Rs.

14,10,000/- tz.

Occupation certificate /Completion certificate N/A 13.

Notice of possession N/A L4.

Legal notice 29.05.2027 fPage 61 of the complaint] I* HARERA #,eunuennr,rr B.

5.

Complaint No.

6294 of2022 and others Facts ofthe complaint The complainants have pleaded the complaint on the following facts: i.

That in fuly-August 2013 Complainants were interested in purchasing a Technology Commercial Unit in the Business Park Project "Aquarius Business Park", being developed and constructed by the opposite party in Sector - 74, Gurugram, Haryana.

Relying on the assurance with respect to quality, timely delivery, availability of all statutory approvals etc., Complainants booked a Technologr Commercial Unit in the aforesaid project, by ll. submitting jointly the Application Form dated 02"d August 2013.

Subsequently, complainants paid the respective amount through cheques in total a sum of Rs 14,70,000/- to the opposite party for the aforesaid unit in the aforesaid project.

That on receipt of the above-mentioned amount along with the Application Form on 02"d August 2013, a Developer-Anchor Unit Page 4 of 15 1r' *HARERA # eunuennH,l Complaint No.

6294 of 2022 and others Agreement dated 3'h September 2013 was duly executed between the respondent and complainants and in terms of the aforesaid Developer-Anchor Unit Agreement, the complainants were allotted Commercial Retail measuring 250 square feet having Unit No. g Unit No.

RT- UG-6 on the Upper Ground Floor in the proposed Cyber Park in the aforesaid project for the total consideration of Rs 14,10,000/- (Rupees Fourteen Lakh Ten Thousand onlyl.

The factum of the aforesaid payment made by the complainant towards total consideration to the opposite party stands duly reflected in the aforesaid Developer-Anchor Unit Agreement dated 3th September 2013 duly executed between the opposite party and the complainants.

It is pertinent to mention that on the same date, another agreement, titled Developer-Anchor 0ption Agreement - Assured Return Plan dated 3th September 2013 was also executed between the complainants and the opposite party in which the opposite parry assured my aforesaid clients assured return @Rs 120 per sq. ft. per month for a period of60 (sixty) months.

That it is pertinent to mention that at the time of signing of the Developer-Anchor Unit Agreement dated 3h September 2013, the complainants were informed that the possession of the aforesaid unit would be given within maximum 60 months [5 yearsJ.

The said assurance of the opposite party also stands reflected in CIause 11 of the aforesaid Developer-Anchor Unit Agreement dated 3th September 2013, however, unfortunately, till date, no progress whatsoever, has been made in this regard.

Needless to mention, whenever my aforesaid client tried to contact and reach to the opposite party in past several years, the opposite party has been making lame excuses and only empty assurances are being given lll.

Page 5 of 15 HARERA P*GURUGRAI/ IV.

6294 of 2022 and others time and again and no defrnite and concrete responses are forthcoming.

There is still no definite answer as to when the opposite party propose to give possession of the aforesaid unit in your aforesaid project to the complainant. mplainant.

That as noted above, in terms of aforesaid Clause 11 of the Developer-Anchor Unit Agreement dated 3th September 2013, the possession of the aforesaid unit was supposed to be given within 60 months (5 years) i.e. to say by August 2018, however, now, even after around 8 years, there is no progress whatsoever on the ground.

Not only that, even the assured return for 5 years, as assured by the opposite party, has not been complied with by the opposite party inspite of several requests/ visits made in this regard.

In the aforesaid circumstances, the complainants have been running from pillar to post in order to find a definite time framework/ period as to when the opposite party are going to give possession ofthe aforesaid unit in your aforesaid proiect for which the complainants have already paid the total consideration in the year 2013 itself i.e. at the time of booking of the aforesaid unit in your aforesaid project.

That there has been considerable delay in the execution of the project and whenever the complainants had approached the opposite party by visiting their office, to enquire about as to why project is getting delayed, no satisfactory answer was given from the opposite party.

That it is pertinent to mention that timely completion of the aforesaid project and delivery/ to hand over the possession of the aforesaid unit to the complainants on time was the essence.

However, inspite of making the aforesaid substantial palment/ vl, Page6oflS 'y' ffi HARERA ffi eunuennvt vlll. vll, Complaint No.

6294 of 2022 and others total consideration, which is the hard earned money of the complainants, on account of inordinate delay on your part in the execution ofthe project, there is no sign as to when the possession is likely to be given.

Needless to mention, whenever the complainants visited/ enquired about the project, only false/ evasive/ empty responses were forthcoming from last 7-8 years The opposite party kept delaying the matter on one or another pretext. r pretext.

This by itself speaks volume of your utmost dishonest intention in the matter.

That the complainants were not having slightest doubt in their mind about your mala fide intentions, keeping in mind the brand, image and profile of your company and tall promises which were made by the opposite party to the complainants by way of inducing/ alluring my aforesaid clients to put their hard-earned money for buying the aforesaid unit in your aforesaid project.

However, by your aforesaid unfair, arbitrary and anti-competitive and abusive practices, the opposite party has not only shattered the confidence of the complainants in the real estate, and companies like you but have also made them wiser for the future.

That in view of the above, the Complainants was constrained to send a Iegal notice through his counsel on 29.05.2021calling upon the Opposite Party to immediately refund the aforesaid amount of Rs 14,10,000/- which was paid to the Opposite Party towards full and final basic price for the plot in the aforesaid project, along with the interest @18 percent on the aforesaid principal amount, from the date on which the said payments were made in the year 2006 to till date or actual payment, within 15 (fifteen) days from the date Page 7 of 15 ItrHARERA #,eunuennr,,r 7.

C.

6.

6294 of 2022 and others ofreceipt of the notice, but till date the Opposite parry has not been even responded to the aforesaid Legal Notice.

Relief sought by the complainants: The complainants have sought the following reliefs: a.

Direct the respondents to refund the entire amount paid by the complainants at the prescribed rate @MCLR+2%o from due date of payment till actual realization, The respondent was proceeded ex-partee vide order of this authority daled 08.12.2023.

Despite sufficient opportunities none has appeared on behalf of the respondent.

Copies of all the documents have been filed and placed on record.

Their authenticity is not in dispute. n dispute.

Hence, the complaint can be decided on the basis of theses undisputed documents.

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

8.

D.

9.

D.l.

Territorial iurisdiction 10.

As per norification no. l/92/2017-lTCp dated 14.t2.2017 issued by Town and Country Planning Dep*tment, the jurisdiction ofReal Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

In the present case, the project in question is situated within the planning area of Gurugram District, therefore this authoriry has complete territorial jurisdiction to deal with the present complaint.

D.ll.

Subiect matter iurisdiction Page 8 ofts y' ffiHAREBA S- eunuennu Complaint No.

6294 of 2022 and others 11.

Section 11(4)[a] ofthe Act,2076 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11[4)(a) is reprod uced as hereunder: Section 71 (4) The promoter shall- (o) be responsible for oll obligations, responsibilities and functions under the provisions of this Act or the rules ond regulations mode thereunder or to the allottees as per the ogreement for sole, or to the association ofollottees, as the case may be, till the conveyance of all the apartments, plots or buildings, os the cose may be, to the allottees, or the common oreas to the ossociotion olollottees ot the competent authoriq), as the case moy be; 12.

So, in view of the provisions of the Act quoted above, the Authority has complete iurisdiction to decide the complaint regarding non- compliance of obligations by the promoter leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainants at a later stage.

13. stage.

13.

Further, the Authority has no hitch in proceeding with the complaint and to grant a relief of refund in the present matter in view of the judgement passed by the IIo n'ble Apex Court in Newtech Promoters and Developers Private Limited Vs State ofll.P, and Ors. (Supra) and reiterated in case of M/s Sana Realtors Private Limited & other Vs Union of India & others SLP fCivil] No.

13005 of 2020 decided on 1-2.05.2lZZwherein it has been laid down as under: "86.

From the scheme of the Act ofwhich o detailed rekrence hos been mode ond tqking note of power of adjudication delineoted with the regulotory authority and adjudicating officer, what frnally culls out is thot although the Act indicotes the distinct expressions like'refund', 'interest', 'penalty' and 'compensation', a conjoint reading of Sections 18 and 19 clearly manifests that when it comes to ret'und of the amounC ond interest on the refund omount or directing payment of interest for deloyed delivery of possession, or penalq! ond interest thereon, it is the regulatory quthoriq) which hqs the power to examine and determine the outcome of o complaint.

At the same time, when it comes to a question of seeking the relief of adjudging compensation qnd interest thereon under Sections 12, 14, 18 ond 19, the adjudicating officer exclusively has the ,r' Page 9 of 15 HARERA GURUGRAM Complaint No.

6294 of 2022 and others power to determine, keeping in view the collective reoding of Section 77 reod with Section 72 of the AcL if the adjudication under Sections 72, 71, 18 ond 19 other than compensation os envisoged, if extended to tll€ adjudicating officer as prayed that, in our view, moy intend to expand tlv ambit and scope of the powers ond functions of the adiudicoting ofrcer under Section 71 ond thotwould be ogainst the mondote ofthe Act 2016." 14.

2016." 14.

Hence, in view of the authoritative pronouncement of the Hon'ble Supreme Court in the cases mentioned above, the Authority has the iurisdiction to entertain a complaint seeking refund ofthe amount and interest on the refund amount.

E.

Findings on the relief sought by the complainants.

E.I Direct the respondents to refund the entire amount paid by the complainants at the prescribed rate @MCLR+Z%o from due date of payment Ull actual realization.

15. ln the present complaint, the complainants intend to withdraw from the project and are seeking refund of the amount paid by them in respect of sub,ect unit along with interest.

Sec.

18(1) of the Act is reproduced below for ready reference: " Section 18: - Return of qmount and compensation 1BI1). lfthe promoter Jails to complete or is unable to give possession ofqn aportment, plot, or building. ' (a)in accordonce with the terms of the agreement for sole or, as the case may be, duly completed by the date specified thereiu or (b)due to discontinuance of hls business as o developer on account of suspension or revocation of the registration under this Act or for any other reason, he shqll be liable on demqnd to the allottees, in case the ollottee wishes to withdraw from the project, without preludice to any other remedy qvoiloble, to return the amount received by him in respect of that apartment, plot, building, qs the case may be, with interest at such rate ds mdy be prescribed in this behalf including compensotion in the monner os providecl under this Act: Provided thot where an allottee does not intend to withdraw from the prcject, he shallbe poitl, b! the promoter, interestfor every month ofdeloy, till the honding over of the possession, ot such rate os moy be prescribed." Page 10 of 15 17.

HARERA GURUGRAM Compla.nt No.

6294 of 2022 and others Admissibility of refund along with prescribed rate of interest The complainants are seeking refund the amount paid by them along with interest prescribed rate of interest. interest.

However, the allottee intend to withdraw from the proiect and are seeking refund of the amount paid by them in respect ofthe subiect unit with interest at prescribed rate as provided under rule 15 of the rules.

Rule 15 has been reproduced as under: Rule 75. prescribed rate of interest- lProviso to section 12, section 7B and sub-section [4) and subsection (7) of section 19] (1) l'or the purpose of proviso to section 12; section 18; ond sub-sections [4) and (7) ofsection 19, the "interest at the rate prescribed" sholl be the Stote Bank of lndia highest morginal cost of lending rate +2a,6.: Provided thqt in case the Stote tsank of lndia mqrginal cost of lending rote (MCLR) is not in use, it shall be replaced by such benchmark lending rqtes which the Stqte Bank of India may fix from time to time for lending to the general 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.

Consequently, as per website of the State Bank of tndia i.e., https://sbi.co.in, the marginal cost of lending rate (in short, MCLRI as on date i.e., 18.04.2025 is 9.10%.

Accordingly, the prescribed rate of interest will be marginal cost oflendingrate +2o/o i.e., 11.1070.

The definition of term 'interest' as defined under section 2(za) of the Act provides that the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default.

The relevant section is reproduced below: 18.

19.

Page 11 of 15 HARERA ffiGURUORAI/ Complaint No.

6294 of 2022 and others "(za) "interest" means the rotes of interest payable by the promoter or the allottee, os the c0se mIy be.

Explanotion. planotion. -For the purpose of this clause- (i) the rate of interest chorgeable from the allottee by the promoter, in cose of defautt, sholl be equql to the rate of interest which the promoter shall be liable to pay the allottee, in case of defoult; (ii) the interest payable by the promoter to the allottee sholl be from the dote the promoter received the amotlnt or any part thereof till the dote the amount or part thereof qnd interest thereon is refunded, and the interest payable by the qllottee to the promoter sholl be from the date the qllottee defaults in poyment to the promoter till the date it is paidi' 20.

In the present case, the complainants booked a unit with the respondent in its project "AquaTius Business Park" situated in Sector- 74 Gurugram, Haryana.

The coniplainants were allotted a unit bearing no.

RT-UG-6 on the Upper Ground Floor, admeasuring 250 sq. ft. of super-area vide allotment letter dated 13.08.2013 and subsequently, builder buyer agreement was executed between the parties on 03.09.2013.

As per possession clause 11 of buyer's agreement which states that the developer to the proposed allottee within sixty months from the date of finalization of construction and after necessary approvals.

The due date of possession is calculated from the date of execution of builder buyers' agreemenl Therefore, the due date of possession is 03.09.2016.

21. lt is pertinent to mention over here that even after a passage of more than 8 years neither the occupation certificate has been obtained by the competent authority nor the offer of possession of the allotted unit has been made to the allottees by the respondent/promoter.

The Authority is of the view that the allottees cannot be expected to wait endlessly for taking possession of the unit which is allotted to them and for which they have paid a considerable amount of money towards the sale consideration. ideration.

Further, the Authority observes that there is no document placed on record from which it can be ascertained that Page 12 of 15 ffi LIAI]EBH S*eunuennHl Complaint No.

6294 of 2022 and others whether the respondents have applied for occupation certificate/part occupation certificate or what is the status of construction of the project. ln view of the above-mentioned facts, the allottee intends to withdraw from the project and are well within the right to do the same in view ofsection 18(1) ofthe Act, 2016.

22.

Moreover, the occupation certificate/completion certificate of the project where the unit is situated has still not been obtained by the respondents /promoter.

The authority is of the view that the allottees cannot be expected to wait endlgssly for taking possession of the allotted unit and for which he.h.4s qgiil a considerable amount towards the sale consideration a4{ as opseryed by Hon'ble Supreme Court of lndia in lreo Grace Realtech Aztltrtd, .lh.

Abhishek Khanno & Ors,, civil appeol no.

5785 of 2079, decided on 17.07.2021. "....

The occupation certifrcqte is not ovoilable even os on dote, which clearly amounts to deJiciency of service.

The allottees cannot be made to wait indefinitely for possession of the apartments ollotted to them, nor con they be bound to toke the apartments in Phase 1 of the project......." 23.

The Hon'ble Supreme Court of India in the cases o/ Newtech promoters and Developers Private Limitad Vs State of ll.p. and Ors, (supra) reiteroted in case of k|/s Sana Realtors Private Limited & other Vs Union of lndia & others SLP (Civil) No.

13005 of 2020 d.ecided on 1.2.05.2022. observed as under: "25.

The unqualified right ofthe ollottee to seek refund referred under Section 18(1)(a) and Section 19(4) of the Act is not dependent on ony contingencies or stipulations thereof. s thereof. lt oppeors that the legisloturehas consciously provided this right of rcfund on demand as an unconditional obsolute right to the allottee, if the promoter foils to give possession ofthe opartment, plot or building within the time stipulqted under the terms of the agreement regordless of unforeseen events or stay orders of the Court/Tribunal, which is in either wqy not attributoble to the allottee/home buyer, the promoter is under an obligotion to refund the omount on demand with interest at the rate prescribed by the State Government including compensotion in the manner provided under the Act with the proviso thqt if the ollottee does Page 13 of 15 1/ Complaint No.

6294 of 2022 and others 24.

25. ffiHARERA #,eunuennlrr not wish to withdraw from the project, he shall be entitted for interost for the period of deloy till handing over possession at the rote prescribed." The promoter is responsible for all obligations, responsibilities, and functions under the provisions of the Act of 20L6, or the rules and regulations made thereunder or to the allottees as per agreement for sale under section 11(4)(aJ.

The promoter has failed to complete or is unable to give possession of the unit in accordance with the terms of agreement for sale or duly completed by the date specified therein.

Accordingly, the promoter is liable to pay the allottees, as they wishes to withdraw From the project, without prejudice to any other remedy available, to return the amount received in respect of the unit with interest at such rate as may be prescribed.

Accordingly, the non-compliance of the mandate contained in section 11(4)(a) read with section 18(1) of rhe Act on the part of rhe respondents are established.

As such, the complainants are entitled to refund of the entire amount paid by them at the prescribed rate of interest i.e., @ ll.70o/o p.a.

70o/o p.a. (the State Bank of India highest marginal cost of lending rate (MCLRI applicable as on date +20lo) as prescribed under rule 15 of the Haryana Real Estate [Regulation and DevelopmentJ Rules, 2017 from the date ofeach payment till the actual date of refund ofthe amount within the timelines provided in rule 16 of the Haryana Rules 2017 ibid.

F.

Directions ofthe authority 26.

Hence, the Authority hereby passes this order and issues the following directions under section 37 of the Act to ensure compliance of obligations casted upon the promoter as per the functions entrusted to the authority under section 34(0 of the Act: Page14ofirS r' *HARERA #-ouRUGRAT,/ Complaint accordingly.

29.

File be consigned to registry 27.

The respondent is fu rights against the subject amount along with any transfer is initiated witl shall be first utilized for This decision shall mutatis 2 of this order wherein details of the complaints. as well as Complaint No.

6294 of 2022 afi The respondent is directed to refund the amount of Rs.14,10, paid by the complainants along with prescribed rate of 17.70o/o p.a. as prescribed under section 1g [1) of the Act, 201 with rule 15 of the rules from the date of each payment till of realization. ii.

A period of 90 days is given to the respondents to comply directions given in this order and failing which legal would follow. not to create any full realization of the up complainants and nil ect unit, the bles nan mentioned in @ read date the ces 'paid-up amoul is mentioned in ty' Harvana Real Authority, Gurugram Dated: 18.04.2025 28. lll, Page 15 of 15