KAPIL DEV KHULLAR AND SANJU KHULLAR vs ADVANCE INDIA PROJECTS LIMITED

HARERA ffiGURUGRAI,/ (Regulation and Complaint no.

1910 of2022 and another BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM of order: 70.1,2.2024 1.

This order shall di titled as above filed before this authority in Form section 31 of the Real Estate cl 2016 (hereinafter referred as "the Act") read with rule 28 of the Haryana Real Estate (Regulation and Developmentl Rules,2017 [hereinafter referred as "the rules") for violation of section 11(a)(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 mafters are allottees ofthe projects, NAME OF THE BUILDER ADVANCE INDIA PROJECTS LTD.

PROJECT NAME AIPL JOY CENTML cR/1910/2022 Sh.

K.K Kohli Sh.

Dhruv Rohtagi cR/791,4/2022 Sh.

Dhruv Rohtagi Shri.

Arun Kumar Shri.

Vijay Kumar Member Page 1of36 s.

No.

Case No, Case title APPEARANCE Kapil Dev Khullar & Sanju Khullar V/s Advance India Projects Ltd.

CORAM: Chairperson ffiHARERA #- atnuennr,,r Complaint no.

1910 of 2022 and' another namely, 'AIPL Joy Central' being developed by the same respondent promoters i.e., M/s Advance India Projects Ltd.

3.

The details of the complaints, reply to status, unit no., date of agreement, & allotment, due date ofpossession, offer ofpossession and reliefsought are given in the table below: "AIPL Joy Central", Sector 55, Gurugram, Haryana.

Proiect Name and Location n ofthe unit to the allottee grace period of 6 months from 7 Possession clause: 44 The company endeovours to h within a period of 54 months ths included cR/19L4/2022 cR/tgr -94 admeasuring 787 sq. ft.

60 oF compliant ot.04,20t7 [pg.

22 ofcomplaint] Allotment letter in favor oforiginal allottees 73.09.2017 [pg.

29 ofcomplaint] lpg. aint] lpg.

29 of complaintl Date ofexecution buyer's agreement in favor of o allottees 07.L0.2027 [pg.

60 of complaint] 07.70.2027 [pg.

60 ofcomplaint] Date ofassi8nment issued by the respondent to the complainants t 1,57,40,000/- [as per S0A dated 03.10.2023 at pg.

148 of { 82,00,000/- [as per SoA dated 03.70.2023 at pg.

142 of Basic sale consideration 11,83,58,752/- 19s,18,5761- Total amount paid Page 2 of 36 Comp no.

Unit no.

13.09.2077 HARERA GURUGRA[/ Complaint no.

1910 of 2022 and another compliance of statutory obligations on the part of the promoter/respondent in terms of section 3a(fi of the Act, which mandates the authority to ensure compliance ofthe obligations cast upon the promoters, the allottees and the real estate agents under the Act, the rules and the regulations made thereunder.

4. [as per S0A dated 75.07.2022 at pg.

140 of [as per S0A dated 03.70.2023 at pg.

150 of Offer ofconstructive possession 75.07.2022 [pg.

61 of complaint] 15.07.2022 [p9.62 ofcomplaint] Assured return clause Clause 32 ofAgreement Where the Allottee has opted for Poyment Plan as per Annexure-A attached herewith ond accordingly, the ComDan! has agreed to poy xs,j7,sdJ/- per Clause 32 ofAgreemenl Where the Allottee has opted for Payment Plan os per Annexure-A attoched herewith and accordingly, the Compqny has qgreed to poy Rs.

7 2, 74 2 / - p e r month by v)ay of assured return to the Allottee Irom 29/03/2077 till the date of issue oI Notice of ion oI the Unit The turn shall be inclusive of Assured return amount paid by respondent <77,39,698/- lpg.

108 ofreplyl Assured return period From March 2077 tlll December 2021 Direct the respondent to pay It has been decide application for non- Page 3 of36 I return. return 137,42,772/. [pg.

106 ofreply] From March 2077 trlt, December 2021 1.

Compfaint no.

1910 of ZO22 and another A.

6.

HARERA b- GURUGRAM The facts of all the complaints filed by the complainants/ allottees are also similar. o similar.

Out of the above-mentioned cases, the particulars of lead case CR/7970/2022 titled as Kapit Dev RhuIIar & Sanju Khullar V/s Advance India projects f,td, are being taken into consideration tor determining the rights of the allottees qua delay possession charges, and other reliefs sought by the complainants.

Unit and proiect related details The particulars ofunit detai eration, the amount paid by the complainants, date of pro over the possession, date of buyer's agreement etc, the following tabular form: cR/1910/2022 & Sanju Khullar V/s Name ofthe Central", Sector-65, Nature ofproject RERA registered dated 14.09.2017 valid Allotment letter in favour of original allottees .2017 no.

22 of complaint] Agreement for sale in favour of original allottees 73.09.2077 [Page no.

29 of complaint] Unit no.

00664 on ground floor (retailshop) [Page no.

31 ofcomplaint] Unit area admeasuring 410 sq. ft. [Super area] [Page no.

31 ofcomplaint] Page 4 of 36 S.

N.

Particulars Details Gurgaon 2.

3. up to 37.12 .2022 6. ffiEArcM ffiounuoRntrl Complaint no.

1910 of20ZZ and another Date of agreement for sell executed between the original allottee and the complainants herein of unit no.

CF-78 27 .08.2027 [PaBe no.

112 ofthe reply) Date of assignment issued by the respondent to the complainants ofunit no, GF- 7A 07.t0.2021 (Page no.

60 of complaint] Possession clause original BBA company endbavours to hand the possession of the unit to the n a period of 54 months grace period of 6 l September 2017.

6fr Due date of grace period of replyl Amount complainan t statement on page Where the Allottee has opted for Payment Plan as per Annexure-A attached herewith and accordingly, the Company has agreed to puy Rs.37,583.00 per month by woy of assured return to the Allottee from 04/03/2017 till the date of bsue of Notice of Possession of the llniL The Page 5 of36 107.0e.2022 L2.

Total sale consideration the 14.

I Assured Return Clause HARERA GURUGRAI\4 B.

Facts ofthe complaint 7. mplaint 7.

The complainants have sub of the Act. referred to Complaint no.

1910 of 2022 and another a.

The present Complai by the Complainants under Section 31 of and Development) Act, 2016 read wi Estate (Regulation and Developmen 11[a) (a) and 19(10) Limited (hereinafter is a company engaged in the business ent of residential and commercial proi pany developed a project to as the "said Extension Road, Sourabh Kumar Gupta on 05.01.2017 booked a retail shop in the said project.

The Allotment letter was issued to them on 01.03.2017 for unit no.

GF-00664 admeasuring 410.00 sq. ft (super area). c.

The previous atlottees i.e., M/s Deepak Sharma HUF and Mr.

Sourabh Kumar Gupta executed Builder Buyer's Agreement with the promoter on 13.09.2017.

That on 01.10.2021the previous allottees Page 6 oF 36 Gurugram' "., :J R U That the previous allottees Sharma HUF and Mr. b return shall be inclusive of all taxes whatsoever payable or due on the retum.

Occupation certificate 24.t2.2027 [Page no.

109 ofreply] Offer of possession to the complainant for unit no.

GF- 78, ground floor L5.07.2022 [Page no.

61 ofcomplaint] 2017 for vi S HARERA ffi eunuerw drs (in Compf aint no.

1910 of 2022 and another endorsed the said unit in the favour of Complainants i.e.

Mr.

Kapil Dev Khullar and Mrs.

Saniu Khullar.

The promoter issued the Notice ofoffer ofpossession on 15.01.2022 for unit no.

GF-78, admesuring 410 sq.ft. wherein it was stated that "it is made clear that as per the Buyer Agreement, Physical possession of the unit shall never be given to you". d.

That the clauses in the Buyer',s Agreement dated t3.09.2017 concerning possession and clause 12 on is nowhere stated page 13.

That as per th of the BBA it that physical poss shall never be given to the allottees.

The mentioned below :- te from the ('notice of in terms ofth ) days from the shallgive the ollottee conditions of this isions, formalities, be prescribed by the of the Unit has fully Total Price hos been poid and all other qpplicobl qpplicoble chqrges/dues tqxes/cess oI the Allottee hqve been paid ond Conveyance Deed has been executed and registered in his favour.

The Company shall hand over possession of the llnit to the Allottee provided the Allottee is not in default oJ ony oI the terms qnd conditions of this Agreement and has complied with all ptovisions, Iormalities, documentation, etc. as may be prescribed by the Company in this regsrd," That along with the possession letter, the statement of account was also shared as per which the Total sale consideration is Rs.

PaEe 7 of 36 " 11.

The company ln 12.

HANDII\ Thot the Al are clause 11 is not in agreement documentation, e. ffilaREna S* ounuennvr Complaint no.

1910 of 2022 ar,d another 85,78,L60/-.

The principal Amount demanded was Rs.

92,17,289.60 / - and the principal received till 15.01.2022 is Rs.

95,18,576.84/-. [t is pertinent to mention that the Complainants have paid more than the demanded amount and the Respondent has still failed to give physical possession of the said unit till date for reasons best known to them.

That from the date of booking and till today, the Respondent had raised various d payments towards the sale have duly paid and satisfied all those demands as without any default or delay on their part. back and the also depicts was due on of the allotted unit was to be o has not been done by the Respondent are ready and willing to take the physical it as on date.

As per agreed consideration and the excess payments way nstructive possession implying no payment terms of the said agreement, the Respondent has to deliver physical possession of the unit.

That this Hon'ble Authdri g on L2.07.2022 in rhe maner CR/2827 /2027 of Mr.

Suresh Kumar vs M/s Advance lndia projecrs Limited has stated in para 46 on page 29 of the order that: - "The Authority is of the view that it nowhere stated or defined as what is meant by "Constructive possession. ossession.

Therefore, the Respondent would hand over the physical possession of the unit to the Page 8 of 36 ffiHARERA #- aJRUGRAT,/ l Complaint no.

1910 of 2022 and another Complainants".

Similarly in the present matter, the facts of the present case are the same.

That as per clause 32 ofthe BBA it clearly states that,,the Company has agreed to pay Rs.

37,583/- per month by way ofassured return to the allottee from 04.03.2077 till the date of issue of Notice of possession of the unit.".

It is important to mention that the promoter has not paid the assured return to the Complainants since the endorsement.

The pro the terms of the BBA is to make payments of the assu till actual delivery of possession and not till date of te as wrongly alleged by it in the notice for i.

That as per on the promoter's website it cle is still not complete.

It was stated of India in Indore Development through its LRs. & ors. on 08.02.201.8 modum capere potest de injuria sua propri take advantage of his own submitted that the Notice of constructive possession issued by the Respondent is invalid and is not as per the law The Complainants have paid more than the demanded amount and has been waiting since 5 years 7 months for the possession oftheir allotted unit.

That the Complainants demands the possession of its allotted Unit, payment of assured return till date of possession offered and also Page 9 of36 h. k.

Complaint no.

1910 of2022 and another demands delay possession charges since due date of possession till handover of the unit.

It is most respectfully prayed to this Hon,ble Authority to consider the present Complaint on behalf of the Complainants and pass an order in accordance with law and pass any other orders which it deems fit.

Relief sought by the complainants: The complainants have sought following relief(s): a.

Direct the respondent ssession charges at prescribed rate of interest from th of possession till actual handing over of the physical ubject unit. b. t unit. b.

Direct the promised in the buyer's C.

8.

9.

On the date of /promoters abou d to the respondent have been commifted guilty or not to plead in relation to guilty.

Reply by the respondent D.

10.

The respondent a.

That the Com file the p erroneous interpretation of t}Ie provisions of the Act as well as an incorrect understanding of the terms and conditions of the Buyer,s Agreement, as shall be evident from the submissions made in the following paras ofthe present reply.

The Respondent craves leave of this Hon'ble Authority to refer to and rely upon the terms and conditions set out in the Buyer's Agreement in detail at the time of d the complaint on the following grounds: [,-:*69 Page 10 of36 ffi HARERA S-e-unuennvr Complaint no.

1910 of 2022 and another the hearing of the present complaint, so as to bring out the mutual obligations and the responsibilities of the Respondent as well as the Complainants. b.

That the Complainants are estopped by their own acts, conduct, acquiescence, laches, omissions etc. from filing the present complaint.

It is submitted that the Respondent has already offered possession of the unit in question to the Complainants, who has failed to complete all and take the possession of the unit, as such, the already complied with its obligations under ent.

The reliefs sought in the false and frivo by estoppel.

That the Complainants rs who has booked the ap ent in order to earn rental t the Complainants have not com with clean hands and have suppr m this Hon'ble Authority.

The correct facts are ing paras of the present reply. c.

That the original allottees had approached the Respondent and expressed an interest in booking an apartment in the commercial colony developed by the Respondent and booked the retail unit in question, bearing number GF/0664, Ground Floor admeasuring 410 sq. ft. (tentative area) situated in the project developed by the Respondent, known as "AIPL loy Central" at Sector 65, Gurugram, Haryana. , Haryana.

That thereafter the Original Allottees vide application form applied to the Respondent for provisional allotment of a unit bearing Page 11 of 36 MHARERA ffi ouRueRRvr Complaint no.

1910 of 2022 and another number GF/066A, Ground Floor in the project.

It is submitted that the original allottees prior to approaching the Respondent, had conducted extensive and independent enquiries regarding the proiect and it was only after they were fully satisfied with regard to all aspects of the project, including but not limited to the capacity of the Respondent to undertake development of the same, that the Original allottees took an independent and informed decision to purchase the unit, un- any manner by the Respondent.

The Original allottees y and wilfully opted for flexi payment plan for consideration for the unit in question and remit every i ondent that they shall avment schedule.

That the Respond nafide of the Original allottees. ically, willingly and voluntarily understanding of the same being for I lf-use, as can be noted in clause 43 of the S cation form: thot the Unit is use by the to third porties a Applicant has to lease out the unit olong with other combined units as a lorger orea on the terms and conditions that the Compony would deem IiL The Applicant sholl at no point oI time object to ony such decision of leasing by the Company." That pursuant to the execution of the Application Form, the Respondent had no reason to suspect the bonafide of the Original allottees and the Allotment letter dated 07.03.20L7 was issued ro them.

That the Unit allotted was provisional and subject to change e PaEe 12 of 36 ffi HARERA ffiarnuennr'r Complaint no.

1910 of 2022 and another as was categorically agreed between the parties.

That the Clause 1 of the Schedule I ofthe Application Form is reiterated as under: "The qpplicant hos applied Jor the provisionol allotment oJ o unit (the unit) in the project ond clearly understands thot the ollotment of the unit by the company he company sholl be purely provisional till such time that the BBA, in the format prescribed by the compsny, is executed between the compony ond the applicanL" e.

That thereafter, Buyer's Agreement dated 13.09.2017 was executed between the original all the Respondent.

It is pertinent to note that as per clause yer's Agreement as well as the clause 18 of the Sched Application Form, the Applicant shall get possessi the Applicant has fully o breach on the part of discharged all the Applican Consideration against the Unit has e charges/dues/taxes , of the Appli transfer do and/or / Sale Deed/necessary cant shall be executed entire Sale Consideration etc. in respect of the Unit by the ;sion ofthe Unit, it shall be deemed f/itself with regard to was further conveyed by the Respondent to the Original Allottees and the Complainants that in the event of failure to remit the amounts mentioned in the said notice, the Respondent would be constrained to cancel the provisional allotment of the unit in question.

Further as per clause 44 of the Buyer's Agreement, subject to the aforesaid and subiect to the Applicant not being in default under any part of this Agreement Page 13 of 36 Complaint no.

1910 of 2022 and another including but not limited to the timely payment ofthe Total price and also subiect to the Applicant having complied with all formalities or documentation as prescribed by the Company, the Company endeavors to hand over the possession of the Unit to the Applicant within a period of54 (fifty fourJ months, with a further grace period of 6 (six) months, from 01 September, 2017.

Accordingly, the due date of possession turns out to be O7.Oq.ZOZ2, including the grace period.

It is relevant at the OC was applied for on 2+.12.2027.

Hence, there is no 09.05.2027, which was delay whatsoever o spondent.

It is submitted ofthe Complainants as well as the tirely determined by the cove s Agreement which continue to with full force and es that the Allottee effect. ee effect.

Clause agrees that time due performance by the Allottee of all the r this Agreement and more Company is not under any obligation send any reminders for the payments to be made by the Allottee as per the schedule ofpayment plan and for the payments to be made as per demand by the Company or performance of other obligations by the Allottee.

That as per clause 54 of the Buyer's Agreement, it is mutually agreed between the parties that in the event of the breach, failure, neglec!

Page 14 of36 *HARERA S-eunuennlrr Complaint no.

1910 of 2022 and another omisslon or ignorance of the Allottee to perform its obligations or fulfil any of the terms and conditions set out in this Agreement, it shall be deemed to be an event of default and the Allottee shall be liable for consequences stipulated herein.

Further, in case of any such event of default, the Allottee is incapable of rectification or in the opinion ofthe Company is unlikely to be rectified by the Allottee or where the breach is repeated or is continuing despite the Allottee being given an opportu the same, then this Agreement may be terminated by th at its sole discretion by written notice ("Notice of T Allottee intimating to it the decision ofthe ent and the ground on which I cases of an event of default, the a notion calling upon within the time given it to rectiB/ therein. g.

That it is project underwent a change/modification the same being done, building plans were invited 119.

It is submitted that the Original Allottees neither paid any heed to the requests of the Respondent nor came forward with objections, if any.

That the Original Allottees chose to be mute spectator by not even replying to the said letter.

That the Respondent was miserably affected by the ban on construction activities, orders by the NGT and EPCA, demobilization of labour, etc. being circumstances beyond the control ofthe Respondent and force maieure circumstances, that the the Page 15 of 36 ffiHARERA S- eunuennvr Complaint no. plaint no.

1910 of 2022 and another payment ofassured return was severely affected during this period and the same was rightfully intimated to the 0riginal Allottees by the letter dated 30.11.2019. h.

That it is pertinent to highlight that the arrangement between the ' parties was to transfer the constructive possession of the Unit and the same was categorically agreed between the parties in the Application form and no protest in this regard had ever been raised by the Original Allottee e was willingly and voluntarily accepted by the original it is an entrenched principle of law that a lease effect either immediatelv or from a futu an understanding, the the lessor and hence, Complainants enioys the t, after the notice of possession.

I Ram Prasad and Ors. (L9.07.2004- that: or constructive. properq,leosed to him on the lessor remoins in constructive possesion in the qres of law..." i.

Further, it needs to be categorically noted that a lessor is always considered to part with the physical possession of the property and stay in constructive possession through the lessee.

That such a relationship is valid and has been recognized in Iaw at various occasions.

For instance, it was observed in Motilal Govindram vs.

Gopikrishnashadilalii and Ors. (06.08.1960-MPHC): MANU /MP /0284/t96ol " To begin with, the word "possession" has in such context two possible meanings.

The frrcq actuol physical possession, and the otheL the symbolic possession, that is, Page 16 of 36 g GURUGRAI'/I k.

HARERA Complaint no.

1910 of 2022 and another the right to receive the renL Broadly speoking, the landlord holding the right of reversion is also in possession,. the difrerence is thot the possession oJ the lessee is physical while that olthe reversioner is symbolic" j.

That without prejudice to the preliminary obiections on maintainability, it is vehemently submitred that the physical possession cannot be given, and the Unit shall be leased out, it was observed in cunwantlal v.

The State of M.P. te of M.P., MANU/SC/0730 /t972: AtR 197 2 SC 17 56, 17 59: "Possession n I possession but can be constructive, h control over the gun, while the I possession is given holds it subi That possession acts of enjoyment of the land itself but om the actual control of the thing s ofpossession is to be credited, $|.ron i. in apparent occupation or in the other actual possession and possession.

The Complainants by fi aint and by taking such baseless and to conceal the material facts in o wrongs, delays and latches and to wriggle out of his contractual obligations by concocting false and frivolous story.

Despite all the goodwill gestures extended by the Respondent, the Complainants are trylng to illegally extract benefits from the respondent and his main aim is to cause wrongful gain to himself and wrongful loss to the respondent from time to time. l.

That the Complainants have filed the present Complaint before the Hon'ble Authoritywhich is not maintainable.

That the Complainants Page 17 ol36 HARERA GURUGRA[/ Complaint no.

1910 of 2O2Z and another is praying for the relief of "Assured Returns,,which is beyond the jurisdiction that this Hon'ble Authority.

That from the bare perusal ofthe RERA Act, it is clear that the said Act provides for three kinds of remedies in case ofanydispute between a Builder and Buyer with respectto the Development ofthe prorectas per theAgreement.

That such remedy is provided under Section 1g ofthe REM Act, 2016 for violation of any provision of the act.

That the said remedies are of "Refund" in case the withdraw from the Project and of every month" in case the the other being "intere Allottee wants to ect and the last one is for Compensation ottee.

It is pertinent to Hon'ble Authority has note, that been dress "Assured Returns". grave illegalities and dismissed at the very Therefore, th Iack of jurisdi outset and the d to file pursue the complaint before any dispute arises from the Agreement in the form of investment agreement and lease agreement agreement. , n i ,l1 m.

It is pertinen t, F\+Wondent cannot pay the "Assured Returns" to the Complainants byany stretch ofimagination in the view of prevailing laws.

That on ZL.OZ.Z.OL9 the Central Government passed an ordinance "Banning ofUnregulated Deposits, 2079", to stop tJre menace of unregulated deposits, the ,,Assured Returns Scheme" given to the Complainants fell under the scope of this Ordinance and the paynent of such returns became wholly Page 18 of 36 Complaint no.

1910 of 2O2Z and another illegal.

That later, an act by the name ,,The Banning of Unregulated Deposits Schemes Act, Z0L9,' fhereinafter referred to as ,,the BUDS Act"l notified on 31.07.2019 and came into force.

That under the said Act all the unregulated deposit schemes such as ,,Assured Returns,, have been banned and made punishable with strict penaJ provisions.

That being a law-abiding company, by no stretch of imagination the Respondent can continue to make the payments of the said Assured Returns in violation of the BUDS Act. n.

That as per clause 32 ofthe said Agreement, it was the obligation of the Respondent to give the assured returns amounting Rs.

37,5g3/_ from 04.03.201,7 till the issiance ofthe Notice of 0ffer of possessron.

That the law of equity and iustice cannot allow such Complainants to reap benefits of such opportunistic attitude and will strive for balance of rights of both the parties at dispute, That this Hon,ble Authority should not allow the Complainants to mislead the Hon,ble Authority and to misuse Real Estate (Regulation and Development] Act,2076 for harassing the builder.

That despire the utter failure of the Complainants in fulfilling the obligations, the Respondent has always showed exemplary conduct.

That at this juncture, it is pertinent to note that the payment ofassured returns was subject to force majeure conditions and applicable laws, orders, notifications, etc, affecting the construction of the project and for such period, assured returns were not to bec not to become due and payable by the promoter and the promoter was not liable to pay assured return for such period.

Page 19 of 36 HARERA ffiGURUGRAM o.

That it is submitted rhat due to the COVID-19 pandemic, whole nation was under the complete lockdown and all activities, including the construction of the said project was under a complete standstill.

It is further submitted rhat the Respondent was also severally affected by the adverse effects of the Covid pandemic. yet, despite the same, the Respondent maintained on its commitment of payment of assured return.

That on 06.07.2OZO, the payment of assured returns was d ts of 500/o each and the same were made payable in nner: a.

Payment of part;I AR , .t , , . the succeeding date of the Lockdown Period (AR Restart Date). .

45 days period from the AR Restart Date shall be moratonum period for payment of Part-l AR The cumulative part-l AR of the Moratorium Period shall be paid in 4 equal installments along with the assured return of 4 months starting from the end of the Moratorium Period, .

The payment ofassured return as per the monthly payment cycle shall resume from 46th day from the AR Restart Date. b.

Adiustment of Part lI AR: .

The balance 500/o Assured Return shall accrue from the succeeding date of the Lockdown period along with an interest@120lo till [a] due date of next installment; or (b) till the date of filing of application for grant of Occupancy Certlficate for the Unit/Project, whichever is earlier, shall be accumulated and adjusted from the demand amount due at next installment or Complaint no.

1910 of 2022 and another Page 20 of36 HARERA ffi.

GURUGRAM demand amount due on date "f n;;;;;;;;;; 0ccupancy Certificate/0ffer of possession for the Unit/projecr, as the case may be. p.

That till June 2019, the assured returns were given through cheques and post June 2019, the Electronic Clearing Services were made mandatory. mandatory.

That it is further submitted that despite there being a number of defaulters in the proiect, the Respondent itself infused funds into the project and has diligently developed the project in question.

The Respondent had applied for 0ccupation Certificate on 09.05.2021.

Occupation certificate was thereaflter issued in favour of the Respondent vide memo bearing no.

Zp-322-Vd.- lI /AD(M) /202t/327'1,7 dated 24.L2.2021..

It is perrinent to note that once an application for grant of Occupation Certificate is submitted for approval in the office of the concerned statufory authority, the Respondent ceases to have any control over the same.

The grant ofsanction ofthe Occupation Certificate is the prerogative of the concerned statutory authority over which the Respondent cannot exercise any influence.

As far as the Respo ndent is concerned, it has diligently and sincerely pursued the matter with the concerned statutory authority for obtaining of the Occupation Certificate, No fault or lapse can be attributed to the Respondent in the facts and circumstances of the case.

Therefore, the time period utilized by the statutory authorify to grant occupation certificate to the Respondent is necessarily required to be excluded from computation of the time period utilized for implementation and development of the project.

1910 of2OZZ atrd, another PaEe 2l of 36 ffi GURUGRAI\4 r, HARERA Complaint no.

1910 of 2022 and, another q.

That the Complainants have intentionally distorted the realand true facts in order to generate an impression that the Respondent has reneged from its commitments.

No cause of action has arisen or subsists in favor of the Complainants to institute or prosecute the instant complaint.

The Complainants have preferred the instant complaint on absolutely false and extraneous grounds in order to needlessly victimize and harass the Respondent. espondent.

That pursuant thereto, the original all a request for transfer ofthe said allotment in the name o lainants.

Accord ingly, the parties submitted the 27.08.202L, along with affidavits.

It is pertinen inants in terms of the necessary requ indemnity declared and conditions of Allottees.

It was been substituted in ly and voluntarily by all the terms and favour of the Original mplainants that having ginal allottees, they were not any, in delivery of e under a scheme or otherwise or any other discount, by whatever name called, from the Respondent.

Furthermore, the Respondent, at the time of endorsement of the unit in question in their favour, had specifically indicated to the Complainants that the Original Allottees had defaulted in timely remittance of the instalments pertaining to the unit in question and therefore, have disentitled themselves for any compensation/interest.

The Respondent had conveyed to the Page 22 of 36 GURUGRAM HARERA Complaint no.

1910 of2022 ar,d another Complainants that on account ofthe defaults ofthe OriginalAllottee, the Complainants would not be entitled to any compensation for delay, ifany.

The said position was duly accepted and acknowledged by the Complainants.

The Complainants are conscious and aware of the fact that they are not entitled to any right or claim against Respondent.

The Complainants have intentionally distorted the real and true facts and have filed the present complaint in order to harass the Respondent and m ressure upon it. lt is submitted that the filing ofthe pres t is nothing but an abuse ofthe process of law.

That in the shoes ofthe nants stepped into the in their favour on 01.10.20 and hence, they were fully aware yet chose to purchase the unit in submitted that several alloftees, includ and CompJainants have defaulted in timely re ent of installments which was an essential, ble requirement for conceptual project in question. question.

Furthermore, when the proposed allottees default in their payments as per schedule agreed upon, the failure has a cascading effect on the operations and the cost for proper execution ofthe proiect increases exponentially whereas enormous business losses befall upon the Respondent.

The Respondent, despite default of several allottees, has diligently and earnestly pursued the development ofthe project Page 23 of 36 Complaint no.

1970 of 2022 and another HARERA GURUGRAM in question and has constructed the project in question as expeditiously as possible.

That the Complainants were offered possession of the unit in question through letter ofoffer ofpossession dated 15.01.202 Z.

The Complainants was called upon to remit balance payment including delayed payment charges and to complete the necessary formalities/documentation necessary for handover of the unit in question to the Complainants.

The Respondent earnestly requested the Complainants to obtain possession ofthe unit in question and to further complete all the formalities regarding delivery ofpossession.

However, the Complainants did not pay any heed to the legitimate, just and fair requests of the Respondent and threatened the Respondent with institution of unwarranted litigation.

It is relevant to note here that the Respondent company had complied with its obligations by offering the possession well within time.

That it is pertinent to mention that the Complainants did not have adequate funds to remit the balance payments requisite for obtaining possession in terms of the Buyer's Agreement and consequently in order to needlessly linger on the matter, the Complainants refrained from obtaining possession of the unit in question.

The Complainants needlessly avoided the completion of the transaction with the intent of evading the consequences enumerated in the Buyer's Agreement.

Therefore, there is no equity in favour ofthe Complainants. plainants.

Without admitting or acknowledging in any manner the truth or correctness of the frivolous allegations levelled by the Complainants and without prejudice to the Page 24 of 36 ffiURENA #eunuenllr ofabove-me Complaint no.

1910 o12022 and another contentions of the Respondent, it is submitted that the alleged refund frivolously and falsely sought by the Comptainants is illegal and bereft of logic.

The Complainants is not entitled to contend that she is entitled for any sort of refund even after receipt of offer for possession within stipulated time.

The Complainants have consciously and maliciously refrained from obtaining possession of the unit in question. v.

That it was an obligatio to make the payments against the Unit, how lainants have gravely defaulted in the same.

The to pay Stamp Duty and Registration 45,003/-, respectively either seek the refund Duty and Registration as stated a Charges or s and pay the balance e Authority has no dues.

That it .iurisdiction to to leasing.

That the Act is entirely silent on the legislature intended the leasing arrangements, the same is a settled prlnciple that what cannot be attained directly, cannot be attained indirectly.

Accordingly, the Hon'ble Authorify has no iurisdiction to deal with the present matter and the present Complaint need to be dismissed at the outset. w.

That in any manner whatsoever, as has been noted in the preliminary objections to the maintainability, the Hon'ble Authority has no power to deal with cases pertaining to assured return.

Page 25 of36 HARERA GURUGRAM Complaint no, 1910 of 2022 and, another Additionally, similar issue regarding jurisdiction of Hon'ble Authority for deciding the complaints pertaining to assured return is already pending with the Hon'ble Haryana Real Estate Appellate Tribunal, Chandigarh as the Hon'ble Tribunal has granted stay in the matter titled as "Venetial LDF Proiects LLP vs.

Mohan Yadav [Appeal No.

Appeal No.

95 ot 20221" against the judgment passed by this Hon'ble Authority granting the relief of assured returns to Mr.

Mohan Yadav [Complai That on perusal of the t by the Complainants, it can be seen that delay assured returns, interest, compensation thout prejudice to the above-menti noted that giving both assured t be justified and amounts to Respondent. ry objections to maintainability that assured returns cannot be adjudi Authority for lack of subject matter jurisd banned.

Th cal burden on the payments asGhl R'[email protected]* have gravery defaulted in the same. y.

That it is submitted that the Respondent has acted strictly in accordance with the terms and conditions of the Agreement between the parties.

There is no default or lapse on the part of the Respondent.

The allegations made in the Complaint inter-alia that the Respondent has failed to comply with the obligatlons under the Page 26 of36 HARERA MGURUGRAM agreement.

On the contrary it is the Complainants who is in clear breach of the terms of the Agreement by not remitting the outstanding amount of the said unit in question within the stipulated time.

That the Respondent has duly fulfilled its obligations under the Buyer's Agreement.

There is no default or lapse in so far as the Respondent is concerned.

The allegations levelled by the Complainants are totally baseless.

Thus, it is most respectfully submitted that the pres very threshold. t deserves to be dismissed at the 11.

Copies of all the relevan been filed and placed on the record.

Their authe ce, the complaint can be decided on the ts and submissions made by the parti 12.

Written submis taken on record and n the relief sought by considered by the the complainant. furisdiction of the as subject matter the reasons given Complaint no.

1910 of 2022 and another ;is of ;. :rs fik E.

13. below.

E.

I Territorial iurisdiction 14.

As per notification no. \/92/2017-ITCP dated 74.12. ted 74.12.20t7 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.

GURUGRAM Page 27 of 36 Complaint no.

1910 of 2022 and another Therefore, this authority has complete territorial iurisdiction to deal with the present complaint.

II Subiect-matter iurisdiction 15.

Section r1(al (a) ofthe Act, 2016 provides rhat the promoter shall be responsible to the allottees as per agreement for sale.

Section 11(4J (a) is reproduced as hereunder: agreement for so the case moy plots or b the com tions, responsibilities ond this Act or the rules and to the qllottees os per the association of ollottees, os ofoll the opartments, to the allottees, or allottees or the s cost upon te ogents made 341 the 16.

So, in view of the pro oted above, the authority has ..,,, complete iurisdiction int regarding non-compliance ofobligations by the promoter leaying aside compensation which is to be decided by the adjudic if pursue the complainants at a latersrage.

II In" F.

Findingsonthe {ftffid""., F.l.

Obiection regarding maintainability of complaint on account of complainant being investor 17.

The respondent took a stand that the complainants are investors and not consumers and therefore, they are not entitled to the protection of the Act and thereby not entitled to file the complaint under section 31 of the Act.

However, it is pertinent to note that any aggrieved person can file a complaint against the promoter if he contravenes orviolates any Section 77(4) (a) Be responsible for functions under Page 28 of 36 HARERA Complaint no.

1910 of2022 and another provisions of the Act or rules or regulations made thereunder. hereunder.

Upon careful perusal ofall the terms and conditions ofthe allotment lefter, it is revealed that the complainant is buyer, and they have paid a considerable amount to the respondent-promoter towards purchase of unit in its proiect.

At this stage, it is important to stress upon the definition of term allottee under the Act, the same is reproduced below for ready reference: "2(d) "allottee" in relation to o reol estote project means the person to whom.o.ploq apartment ot building, as the case may be, hos or leosehold) or ld (whether qsfreehold by the promotpr, and includes the subsequently qcquires the soid allotm does not i ch plot, aportment orb on rent' 18. ln view of the a ottee" as well as all the terms and cond t executed between the complainant are promoter and co allottee(sl as the by the promoter.

The in the Act.

As per the concept of investor definition given under ere will be "promoter" and "allottee" and th s of "investor".

Thus, the contention of ng investor are not GURUGRAM entitled to protection of this Act also stands rejected.

G.

Findings on the relief sought by the complainant, G.I.

Direct the respondent to pay delay possession charges at prescribed rate ofinterest from the due date ofpossession till actual handing over of the physical possession ofthe subiect uniL 19. ln the present matter the authority observed that the buyers' agreement executed befween the original allottees & respondent entered into buyers' agreement on 13.09.2017.

Thereafter the complainants endorsed the said agreement and the respondent issued letter ofassignment ofthe Page 29 of 36 ffiHARERA S-eunuenntr,r offered the constructive per the BBA was obl unit.

On the co there was a le per application is not for self-occu 27.

The authority herei aware of the fact that Complaint no. l97O of 2022 and another subiect unit in favour of the complainants on 01.10.2021.

1.10.2021.

Clause 44 provides for the handing over of possession of the subject unit within a period of 54 months with a further grace period of 6 months, from 1 September 2017.

Accordingly, the due date ofhanding over ofpossession of the subject unit comes out to be OL.Oq.ZOZ\.

As per the documents available on record the respondent offered the possession of the unit on t5.01.2022 after obtaining OC from the competent authority on 24.L2.202L.

20.

The complainants in the p pleaded that the respondent whereas the respondent as ical possession of the that as per clause 33 es and moreover as 43 that the said unit of leasing. lainants were very well not for the purpose of self- occupation rather is to be put on lease as clear from clause 43 of application form and 33 of the agreement.

Further nowhere in the agreement it is specifically mentioned that the respondent shall handover the actual physical possession of the unit rather the terminology used is handing over ofpossession.

The relevant clauses are produced herein below for the ready reference: "Clouse 43 The opplicont has clearly understood that the unit is not for the purpose oI self-occupation and use by the opplicant and is for the purpose ol leosing to third porties along with combined units as larger area.

The applicont has given unfettered rights to the compony Page 30 of 36 Clouse 33 involved in glving ony premises on l;ase to third parues and has undertaken to bear the said risks exclusively without any liobility whatsoever on thr booking ofthe unit unit dated 15.01.2 read in continua allottee wherein purposes and not handing over the p established and acco out.

G.IL Direct the buyer,s agreem as promised in tbe The complainants are seeking unpaid assured returns on monthly basis as per the builder buyer agreement read with the addendum to agreement at the rates mentioned therein.

It is pleaded that respondent has not complied with the terms and conditions of agreement. 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 Unregulated Deposit Schemes Act, 2019 (hereinafter referred to as the page 31 of36 the the the port ol the Compony...,..." Accordingly, the physicar possession was never the intent at the stage of Complaint no.

1910 of2022 and another structive possession of the clauses have to be ed by the original e unit is for leasing findings no delay in on part of respondent is possession charges is made Complaint no.

1910 of 2O2Z and another Act of 2019J, citing earlier decision of the authority (Brhimjeet & Anr.

Vs.

M/s Landmark Apartments pvt.

Ltd., complaint no 141 of 201g) it was held by the authority that it has no iurisdiction to deal with cases ot assured returns.

Though in those cases, the issue of assured returns was involved to be paid by the builder to an allottee but at that time, neither the full facts were brought before the authority nor it was argued on behalf of the allottees that on the basis of contractual obligations, the builder is obligated to pay Thereafter, the authority after detailed hearing and co f material facts of the case in CR/8007/2022 titled k and anr.

Vs, Vatika Ltd. re,ected the objecti t with respect to non- payment of as e force of BUDS Act, 2019.

The autho payment of ass berated that when of builder buyer's agreement [ma cument or by way of addendum, memo terms and conditions of the allotment of a unit), s liable to pay that amount as agreed upon.

So, t for assured returns between the proffieFa$a*r*tlDt&*ile${t & th" sr." relationship and is marked by the original agreement for sale.

Therefore, it can be said that the authority has complete iurisdiction with respect to assured return cases as the contractual relationship arises out of the agreement for sale only and between the same contracting parties to agreement for sale. for sale.

Also, the Act of 2016 has no provision for re-writing of contractual obligations between the parties as held by the Hon,ble Bombay High Court in case .iveelkamal Realtors Suburbon private Limited and Anr, PaEe 32 of 36 HARERA MGURUGRAM with or without Complaint no, 1910 of2O2Z and another V/s Union oI India & Ors., (supra) as quoted earlier, So, the respondent/builder can't take a plea that there was no contractual obligation to pay the amount of assured returns to the allottee after the Act of 2016 came into force or that a new agreement is being executed with regard to that fact.

When there is an obligation of the promoter against an allottee to pay the amount of assured returns, then he can,t wriggle out from that situation by taking a plea ofthe enforcement ofAct of 2016, BUDS Act 2019 or aw.

Section 2(4) of the above- mendoned Act defines the sit' as an amount of money received by way ofan ad y other form, by any deposit taker with a promi a specified period or of a specified service, bonus, profit or in any otherwise, either i other form.

Fu e exception wherein 2(a)fl)(iil sp t include an advance received in connecti an immovable property, under an agreement or to the condition that such advance is adj perly as specified in terms of the a t matter the money immovable property and its possession was to be offered within a certain period.

However, in view of taking sale consideration by way ofadvance, the builder promised certain amount by way of assured returns for a certain period as agreed between the allottee and the builder in terms of buyer's agreement, MoU or addendum executed inter-se parties.

Moreover, the developer is also bound by promissory estoppel.

As per Page 33 of 36 ffiHARERA ffiounuennri,r Complaint no.

1910 of2O2Z and another this doctrine, the view is that if any person has made a promise and the promise has acted on such promise and altered his position, then the person/promisor is bound to comply with his or her promise. r promise.

So, on his failure to fulfil that commitment, the allottee has a right to approach the authority for redressal ofhis grievances by way offiling a complaint.

The Act of 2019 does not create a bar for payment of assured returns even after coming into operation as the payments made in this regard are protected as per section 2 e Act of 2019.

Thus, the plea nable in view of the aforesaid advanced by the respondent reasoning and case cited 24.

The builder is liable upon and can't take a plea that it is nor return, Moreover, an agreement p.

So, it can be said that the agree promoter and allotee ked by the original agreement for sale.

25.

It is not disputed thar the estate developer, and it had arises out of the not obtained reg question.

Howeve 16 for the project in has been received by the developer from the allottee is an ongoing project as per section 3(1) of the Act of 2016 and, the same would fall within the jurisdiction of the authority for giving the desired relief to the complainants besides initiating penal proceedings.

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

In view ofthe above, the respondent is liable to pay assured return to the Page 34 of 36 ffiHARERA S- aiRuGRAr,/ Complaint no.

1910 of 2022 and another complainants-allottees in terms ofthe builder buyer agreement read with addendum to the said agreement.

26.

On consideration of documents available on record and submissions made by the complainant and the respondent, the authority is satisfied that the respondent is in contravention of the provisions of the Act.

As per the agreement executed between the parties on 13.09.2017, the assured return is payable to the allottees on account of clause 32 of the buyer's agreement.

The p d to pay to the complainants allottee 137,583/- on month 04.03. nth 04.03.2017 till the date ofissue of notice of possession o of record that the amount of assured return promoter till December 2021.

Thereafter ssion of the said unit in lanvary 2022 ility w.r.t. payment of assured return possession. ofnotice for offer of 27.

Accordingly, the re the outstanding accrued assured return amount e agreed rate within 90 days from the date of tanding dues, if any, from the complai t would be payable with interest @ 9.10% p.a. till the date of afiual realizarion.

28.

In the present case, the authority fShri.

Arun Kumar, Hon,ble Chairperson, Shri.

Vijay Kumar Goyal, Member & Shri.

Sanjeev Kumar Arora, MemberJ heard the complaint and reserved the order on L4.05.2024, the same was fixed for pronouncement o[ order on 27.08.2024.

The same could not be pronounced on that day and the matter was adjourned to 22.10.2024 and then to LO.7Z.2OZ4.

On Page 35 of 36 HARERA MGURUGRAM Complaint no.

1910 of 2022 and another 16.08.2024,one ofthe member Shri.

Sanjeev KumarArora got retired and presiding officers ofthe Authority have pronounced the said order.

H.

Directions ofthe authority: 29.

Hence, the authority hereby passes this order and issues the following directions under section 37 ofthe Act to ensure compliance ofobligations cast upon the promoter as per the function entrusted to the authority under section 34(D: a.

The respondent is directed to p date ofissue ofnotice ofpossession ofthe unit i.e., till lS.0L.ZO22. b.

The respondent is directed to pay the outstanding accrued assured has been discharged from his duties from the Authority.

Hence, rest ofthe file of each 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 the complainants and failing which that amount would be payable with interest @ 9.700/o p.a. till the date ofactual realization.

30.

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

31 True certified copies of this order be placed on the case matter.

32.

Files be consigned to registry. ,t1--/ (Viiay Kumar Goyal) Member Haryana Real Estate Regulatory Authority, Gurugram Datedt 1o.t2.2024 t{r,,-ro (Arun Kumar) Chairperson Page 36 of 36