SONALI RAY AND ORS vs VATIKA ONE INDIA NEXT PRIVATE LIMITED

ffiHARERA *iS- eunuennnr BEFORE THE HARYANA REAL ESTATE REGUTATORY AUTHORITY, GURUGRAM 1.

Sonali Ray 2.

Nikhil Sahni Both RR/o: 8478, Secror, C, Pocket 8, Vasant Kunj, New Delhi-110070.

M/s.

Vatika Ltd. (Formerly known as Vatika Ltd.) Address; Vatika Tri Sushant Lok, Phase M.G.

Road, Guru COMM: ShriArun Kumar APPEARANCE: Cornplaint no.2295 of 2024 ComplaintNo. : 2295 ofZOZ4 Date of filing t 17.O5.2O24 Date of decision: 09.O5,2O2s Complainants Respondent Chairman Shri Thribhuwan Sinh Shri Venket Rao rha C( f ounsel for the complainant Counsel for the respondent ORDER 1.

The present nant/allottee under Section 31 ol the lopment) Act, 20L6 (in short, the Act) read with Rule 28 of the Haryana Real Estate [Regulation and Development) Rules, 2017 (in short, the Rules) for violation ofSection 11(4J[a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities, and functions under the provisions of the Act or the rules and regulations made thereunder or to the allottee as per the agreement for sale executed inter se.

Page 1 ol 22 HARERA M GURUGRAN/ Complaint no.

2295 of2O24 A.

Proiect and unit related details 2.

The particurars ofthe project, the details ofsale consideration, the amount paid by the complainant[sJ, date ofproposed handing over the possession, delay period, ifany, have been detailed in the following tabular form: S.no.

Particulars Details @ Gurugram, Haryana.

1.

Name of the project 2. ;J.

4. -5.

Nature of project Commercial colony !22 0f 2008 dated 14.06.2008 Valid up to 13.06.2016 DTCP License no, Unit no.

114, 1.tfloor, Tower A IPage 28 of complaint] -:/50 sq. ft. [Page 28 of complaint] 434 on 4,r,floor Block C IPage 5B of complaint) z5'Orzo1r- [Page 30 of complaint] Unit area [in super area] 7.

6.

8.

New Unit no. allotted by the respondent on 1_5.04.2013 Date ()f execution of buyer's agreement Due date of Possession No clause of possession in BBA 9. in BBA 9.

Assured return clause as per ciause 12 of the BBA 12 ...the Develope. has ag.eed tu p"y Rs.65/- per sq. ft. super area of the said Commercial Unit per month by way of assu.ed returtr to the Buyer from the date of execution of this agreement till the completion of construction of the said Building... (D The Developer will pay to the Buyer Rs.65/- per sq. ft. super area of the said Commercial Unit as committed return for up to 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. [As per BBA at page 44 ofcomplaint] Page 2 of 22 |-.-.+--- Basic sale consideration of the unit as per builder Rs.58,50,000/- [Page 32 of complaint] Amount paid complainant by the Rs.58,50,000/- IPage 32 of complaint] Assured return paid by the respondent from 09.07.2012 till Iune 2018 0ffer of possession Rs.35,72,903/- [Page 22 of reply] Not offered 0ccupation certificate Not obtained HARERA GURUGRA[I Facts ofthe complaint The complainants have made the following submissions: a.

That in the first week of May, 2072, the complainants received a marketing call from the office of the respondent, and the caller represented himself as the sales manager of the respondent and marketed commercial prolect namely Vatika INXT CITy CENTRE, at Sector-83, Gurgaon Manesar Urban Complex, District Gurgaon, Haryana.

The respondent asked to book a commercial unit in the said project.

The respondent allured the complainants with proper specifications and assured that committed assured return will be paid by the respondent to the complainants on the super area from the date of execution of buyer's agreement till the completion of construction and thereafter for up to 03 years from the date of completion of construction ofthe said building or till the commercial units put on the lease. the lease.

The respondent assured that possession of the unit will be handed over very soon, since the construction of the project is at an advanced stage.

The respondent gave them a brochure and a pre- printed form. b.

That, believing on the representation and assurance ofthe respondent, the complainants booked a commercial unit.

The responclent allotted a unit no.114 on First Floor jn Tower_C, having super area of 750 sq. fts.

Complaint no.

2295 of 2024 B.

Page 3 ot 22 HARERA MGURUGRAII in the said project.

The commercial unit was booked for a total sale Complaint no.

2295 of2024 consideration of Rs.58,50,000/-.

The same was duly paid by the complainants to the respondent.

The payment plan and price included basic price, EDC, IDC, IFMS, Club membership and car parking.

On 25.05.201,2, a pre-printed, unilateral, arbitrary builder buyer,s agreement was executed inter_se, the respondent and the complainant.

Since the buyer has paid the full basic sale consideration for the commercial unit upon signing ofthis Agreement and has also opted for leasing arrangement after the commercial unit is ready for occupation and use, the Developer has agreed to pay Rs.65/- per sq. fts. super area per month by way ofassured return to the buyer from the execution of this agreement till the construction of the said commercial unit is complete.

Thereafter, vide letter dated 15.04.2013, the allotment ofthe flat was changed to Flat no.434, 04e Floor, TOWER_C, in the same premises. d.

That the respondent informed the complainants, stating therein that "we ore pleased to inform you that the construction work of Tower_C of INDIA NEXT CITY CENTRE, at Sector-73, Gurgaon Manesar lJrban Complex, District Gurgaon, Haryana is completed, and the buitding is operotional and reody for occupotion.

Further, we are in active discussion with a prospective tenantsfor the properO/ and expect to lease out substantial orea in the building in due course. ue course.

Thereafter, the complainants personally visited the office of the respondent alleging that TOWER-C is not ready for occupation and operation and asked for a joint inspection, It is matter of fact, the complainants verified the information from the website of DTCp, which states that till now the respondent has not received an occupation certificate trom the authority, and the license has also expired.

Page 4 ot 22 HARERA ffiGURUGRAIV e.

That it is highly germane to mention here that the respondent has assured to give committed assured returns to the complainants as per the clause no.12 of the BBA, but the respondent has paid assured returns to the complainants only till Jul_2018 and thereafter the respondent has stopped paying assured returns on the pretext that the construction has been completed, which is clearly not the case.

Even otherwise for the sake ofargument, the respondent has failed to Iet out the units in terms of the Clause 16.

Despite paying the entire consideration amount i.e.

Rs.5g,50,000/_, the respondent has failed to honour the terms of the BBA.

Moreover, till today, which is almost 11 years from the date of execution of the BBA, the respondent has not completed the construction and procured the OC from the concerned department.

That as per the Section 12 of the Act,2016, the promoter is liable to return the entire investment along with interest to the allottees of an apartment, building or project for giving any incorrect, false statement, etc.

As per the section 18 ofthe Act,2016, the promoter is liable to pay the interest or return of amount and to pay compensation to the allottee of a unit, building or proiect for a delay or failure in handing over of such possession as per the terms and conditions of the builder buyer agreement.

As per the Section 19(4) of the Act of 2016, the promoter is entitled to a refund ofthe amount paid along with interest. interest.

That the respondent has been continuously served with reminders and persistent requests were made telephonically, written intimations and by personal visits by complainants, to abide by the terms of the agreement entered between the parties and make the payment of the assured returns as per the terms of the agreement.

The respondent kept on reassuring complainants that they will shortly make the Cornplaint no- 2295 of 2024 PaEe 5 ol 22 URUGRA[I ffiH Se Complaint no.

2295 of 2024 and failed to adhere and make the payment of assured returns.

Therefore, the respondent is liable to compensate the complainants on account ofthe aforesaid act ofunfair trade practice. h.

That the complainants through its counsel issued the legal notice dated 05.70.2023, calling the respondenr to (aJ provide proper ledgea [bJ to pay outstanding/arrear of assured return, (cJ to cancel the allotment and refund the entire sale consideration, and [d) to pay compensation for the loss.

Even to this, the respondent paid no heed.

Again, the reminder notice dated 0().!2.2023 was also issued by the counsel.

Hence, this complaint.

Relief sought by the complalnints; During hearing datea ds.OS.Zd23, the cou nsel for the complainants clarified that the complainants are seeking the following relief(s): i.

Direct the respondent to refund of entire consideration amount of Rs.58,5 0,000/- along with 190/o per annum from the date of allotment till date. ii.

Directing the respondent to pay the sum of Rs.10,00,000/_ damages, loss, compensation for causing mental pain, financial loss to the complainants. iii.

Direct Respondent to pay the cost of litigation as well C.

9. to the Complainants.

10.

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[4) (a) of the act to plead guilry or not to plead guilty.

D.

Reply by the respondent 11 By virtue of reply dated 20.og. ted 20.og.zo24, the respondent has contested the complaint on the fbllowing grounds: i.

That the complainants had erred gravely in filing the presenr complaint and misconstrued the provisions of the Act.

The ARERA payments as required.

However, the respondent has willfully neglected towards the agony and as advocate fees Page 6 of 22 HARERA P_GUI?UGRAII complainants had booked the said unit, in the project 0f the respondent for steady monthly returns first in the form of assured return and subsequently in the form of lease rental.

Since starting the Complainants booked the unit in question considering the same as an investment opportunity.

By no stretch ofimagination, it can be concluded that the Complainants herein can be refeffed as " allottee".

It is a matter offact, that the Complainants are simply an investor who approached the Respondent for investment opportunities and for a steadv rental income. ii.

That in the year 2OlZ, the Complainants learned about the project launched by the Respondent titled as "VATIKA INXT CITY CENTRE" situated at Sector 83, Gurugram and visited the office of the Respondent to know the details of the said project.

The Complainants further inquired about the specifications.

After having dire interest in the project constructed by the respondent, the complainants booked a unit under the assured return scheme, on their own judgement and investigation.

It is evident that the Complainants were aware of the status of the project and booked the unit to make steady monthly returns, without any protest or demur. iii.

That as per the Builder Buyer Agreement dated 25.05.201,2, the respondent was allotted a unit no.

114 on 1$ Floor of building Block A, having a super area of 750 Sq.

Ft. in the said project for a total sale consideration of Rs.

58,50,000/-. iv.

That the Respondent had sent a letter dated 15.04. ted 15.04.2013 to the Complainant's titled as "Allocation of the unit number in INXT City" wherein final allocations of the areas in the complex had Complaint no.

2295 of2024 Page 7 of 22 ffi HARERA ffi eunuennll completed and pertinently the unit number was shifted from unit Complaint no.

2295 ofZ024 vi.

Block C in favour of the Complainant,s in place of the earlier allotted Unit. v.

That the Complainants are trying to mislead this Ld.

Authority by concealing facts which are detrimental to this Complaint at hand.

That the Complainant's had approached the Respondent as an investor looking for certain investment opportunities.

Therefore, the said Allotment of the said unit contained a ,,Lease Clause,, which empowers the Developer to put a unit of Complainant,s along with the other commercial space unit on lease and does not have "Possession CIauses", for physical possession.

The Complainants herein had authorized the Respondent to further lease the Unit(s] upon completion of the same however, the construction of the proiect was obstructed due to many reasons beyond the control ofthe Respondent and the same are explained in detail herein below: .

Construction activities have also been hit by repeated bans by the Courts/Tribunals/Authorities to curb pollution in Delhi-NCR Region.

In the recent past, The EPCA, NCR vide its notification dated 25.10.2019 banned construction activity in NCR from 26.10.2079 to 30.10.2019 which was later on converted to complete ban from 01.11.201,9 to 0S.11.2019 vide notification dated 01.11.2019 o Hon'ble Supreme Court vide its order dated 04.11.2019 passed in wrir petition no.73029/1,995 titled as ,MC Mehta Vs.

Union of India' completely banned all construction activities in Delhi NCR which restriction was partly modified vide order dated 09.f2.2019 and was completely lifted by Hon'ble Supreme Court vide order dated 1,4.02.2020.

4.02.2020.

These bans forced the migrant labours to return to their native villages creating acute shortage of labourers in NCR region.

Due to shortage, the construction activity could noi be no.

114 on Lst Floor to unit no.

434, 4th admeasuring 750 Sq.

Ft., PaAe I ol 22 ffiHARERA S- eunuennvr Complaint no.

2295 of 2024 resumed at full throttle even after the lifting of ban by the Hon'ble Apex Court. o C0VID-19 pandemic including imposing curfew, lockdown, stopping all commercial activities.

Also, HAREM has extended the registration and completion date by 6 months for all real estate proiects whose registration or completion date expired and/or was suppo.ed to expire on oi after 25.03.2020. vii.

That the issue pertaining to the relief ofassured return is already pending for adjudication before the Hon,ble punjab and Haryana High Court, in the marter of,Vatika Limited vs. llnion of India and Anr.' in CWp No.

26740 ol 2022, wherein the Court had restrained the respondent from taking any coercive steps in criminal cases registered against the Respondent herein, for seeking recovery against deposits till next date of hearing and the same has now been listed for 16.0g.2023.

The Hon,ble Up_ REAT while adjudicating an appeal titled as ,Meena Gupta Vs.

One Place Infrastructures M.

Ltd. (Appeal No.

277 of 2022)" has held that the issue ofAssured Return does not fall within the ambit of the Act of 2Ot6 and dismissed the appeal filed by the Appellant/Allottee.

Also, the Real Estate Appellate Tribunal of other states while adiudicating upon the similar issue ofassured return had taken a similar view by observing the said issue is out of the purview of the Act of 201G.

The Hon,ble Uttar pradesh Appellate Tribunal (UpREAT) had evidently held that there is no provision under the Scheme of Act 2016 for examining and deciding the issues relating to the provision of assured return/committed charges or commercial effect in an allotment letter/builder buyer agreement for the purchase o purchase of flat/apartment/plot.

PaEe I oi 22 ffi HARERA S- eunueirnH,r vIl.

That the Respondent cannot pay .,Assured Returns,, to the Complainants by any stretch of imagination in the view of prevailing laws.

An act titled as .,The Banning of Unregulated Deposits Schemes Act, ZOlg,, (hereinafter referred to as ,,the BUDS Act") was notified on 31.07.201.9 and came into force.

Under the said Act, all the unregulated deposit schemes have been banned and made punishable with strict penal provisions.

Being a law-abiding company, by no stretch of imagination the Respondent could have continued to make the payments of the said Assured Returns in violation ofthe BUDS Act.

The BUDS Acr is a central Act came subsequent to the Companies Act and the RERA Act,2016, therefore, directing the Respondent to pay Assured Returns shall be in violation of the provisions of BUDS Act.

It is also pertinent to note herein that for any kind ofdeposits and return over it shall be tried and ad.iudicated as per the relevant provisions ofthe BUDS Act by the Competent Authority constituted under the Act.

Therefore, the Agreements or any other understanding of these kinds, may, after Feb ZOtS, anj if any assured return is paid thereon or continued therewith may be in complete contravention ofthe provisions ofthe BUDS Act.

That the Respondent vide Letter dated 27.03.2018, intimated the Complainant's regarding the completion of construction of the respective Unit comprising in Block F of the proiect and also stated that they are in discussions with various tenants and expect to lease out the Unit in due course.

That vide said Letter dated 27.03.2079, the Respondent also informed the Complainant's that the commitment charges payable under the Complaift no.

229 5 of ZO24 lx.

Page 10 ot 22 xl. xll. ffiHARERA #-eunuennttl Agreement shall be revised to Rs.65/- sq. ft. per month w.e.f.

01.03.2018.

1.03.2018.

That the Respondent herein was committed to complete the construction ofthe Project and subsequently lease out the same as agreed under the Agreement.

However, the Respondent in due compliance of the terms of the Agreement has paid assured return till June 2018, and the same has been very well accepted by the Complainant's in the Complaint.

That right from the date of booking of the unit, the Respondent herein had been paying the committed return of Rs.43,g75/_ every month to the Complainants without any delay.

As on 07,06.20LA, the Complainants herein have already received an amount of Rs.

35,72,903/- as assured return as agreed by the Respondent under the aforesaid agreement.

Since starting, the Complainants has always been in advantage of getting assured return as agreed by the Respondent.

It is an admitted fact that the Complainants have received an amount ofRs.43,B7S/- every month as assured return right from the date of allotment up to 07.06.201a.

It is an admitted fact that since starting the Respondent has always tried level bestto complywith the terms ofthe agreement and has always intimated the exact status of the pro.lect.

However, the delay caused in the payment was bonafide and purely out of the control of the Respondent and the same has been explained in detail herein above.

That the complainants have suppressed the above stated facts and thus, none of the reliefs as prayed for by the complainants are sustainable before this Ld.

Authority.

Complainl no.

229 5 of 2024 xlr l.

Page 11 ot 22 HARERA MGURUGRAM 12.

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

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of these undisputed documents and submission made by the parties.

E. furisdiction of the authority 13, The respondent has raised preliminary objection regarding iurisdiction of authority to entertain the present complaint. complaint.

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

E.

I Territorial jurisdiction 14.

As per notification no.

1/92/2017-lTCp dated 14.1,2.201,7 issued byTown and Country Planning Department, the .iurisdiction of Real Estate Regulatory Authority, Curugram shall be entire Curugram 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 authority has complete territorial jurisdiction to deal with the present complaint.

II Subiect matter jurisdiction 15.

Section 11(4)(al of the Acr, 2016 provides thar the promoter shall be responsible to the allottee as per agreement for sale.

Section 11(4)fal is reproduced as hereunder: Section 77 (4) The promoter shall- (a) be responsible for qll obligotions, responsibilities and functions under the provisions of this Act or the rules and regulations made thereunder or to the ollottees as per the agreementfor sole, or to the association of ollottee, as the case may be, till the conveyance of all the qpartments, plots or buildings, as the cqse may be, to the q ottees, or the common oreos to the association of ollottees or the competent outhority, os the case may be; Section 34-Functions of the Authority: Complaint no.

2295 of2024 Page '12 ol 22 ffiHARERA S- eunuennvr Complaint no.

2295 of 2024 34U) of the Act provides to ensure cornpliance of the obligations cast upon the promoter s, the allottees d;d the real estate agents under this Act qnd the rules ond reg ulqtions mad e the reunder.

16.

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.

F.

Findings on the obiections raised bythe respondent: F.

I.

Obiection regarding the complainants being investor.

17. estor.

17.

The respondent has taken a stand that the complainants are investor and not allottee/consumer.

Therefore, they are not entitled to the protection of the Act and are not entitled to file the complaint under section 31 ofthe Act.

The Authority observes that any aggrieved person can file a complaint against the promoter ifthe promoter contravenes or violates any provisions of the Act or rules or regulations made thereunder.

Upon careful perusal of all the documents, it is revealed that the complainants are buyer, and have paid total price of Rs. g7 ,65,400 /- to the promoter towards purchase of a unit/space 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 relotion to a real estate project means the person to whom a plot, apartment or building, os the case moy be, has been ollotted, sold (whether os t'reehold or leasehold) or otherwise tronskrred by the promoter, and includes the person who subsequently ocquires the said ollotment through sale, transfer or othetwise but cloes not incIude a person to whon such plot, qpartment or building, as the case may be, is given on rent;,, 18. ln view of above-mentioned definition of ,,allottee,, as well as all the terms and conditions of the agreement, it is crystal clear that the complainants are allottees as the subiect unit was allotted to them by the promoter.

I,urther, the concept of investor is not defined or referred in the Act.

Moreover, the Maharashtra Real Estate Appellate Tribunal in its order dated 29.01,2 019 in Page 13 ot 22 ffi HARERA #- eunuennHl appeal no.

00060000000105 s7 titted as IW/s Srushti Sangam Developers PvL Ltd. vs. sanapriyo Leasing (p) Lts.

And onr. has also held that the concept of investor is not defined or referred in the Act.

In view ofthe above, the contention of promoter that the allottees being investor are not entitled to protection ofthis Act stands re. stands re.iected.

F.ll Obiection regarding pendency of petition before Hon,ble punjab and Haryana High Court regarding assured return 19.

The respondent-promoter has rais=ed ,n "oUl".tlon it"iihe Hon,ble High Court of Punjab and Haryana in CWp No.

26740 of ZO2Z titled as ,,Vatika Limited Vs.

Union of India & Ors.,,, took the cognizance in respect of Banning of Unregulated Deposits Schemes Act,2O1g and restrained the Union of India and State of Haryana for taking coercive steps in criminal cases registered against the company for seeking recovery against deposits till the next date of hearing.

20.

With respect to the aforesaid contention, the Authority place reliance on order dated 22.LL.2023 in CWp No.

262 40 of 2022 (supra), wherein the counsel for the respondent(sl/allottee(s) submits before the Hon,ble High Court of Punjab and Haryana, ,,that even after o rder 22.17.2022, the court,s i.e., the Real Estate Regulatory Authority and Real Estate Appellate Tribunal are not proceeding with the pending appeals/revisions that have been preferred." And accordingly, vide order dated 22.1,1.2023, the Hon,ble High court of Punjab and Haryana in cwp no.

26740 of z02z crarified thar there is not stay on adjudication on the pending civil appeals/petitions before the Real Estate Regulatory Authority and they are at liberty to proceed further in the bngoing matters that are pending with them.

The relevant para of order dated 2 Z.11.202 3 is reproduced herein below: "...it is pointed out thot there is no sta! on adjudication on the pending civil appeals/petitions before the Reol Estate RegLtiotory Aurhority os olso ogainst the investigqting agencies and they ore oi lherq, rc proceid Surtiner in the ongoing motters that ore pending b,tth them.

There is no scope jor ony further clarification." Complaint no.

2295 of 2024 Page 14 ol 22 * HARERA #, eunueRnu 21.

Thus, in view of the.above, the Authority has with the present matter.

229S of2024 decided to proceed further F. further F.III Obiections regarding force Majeure 22.

The respondent-promoter has raised the contention that the construction of the unit of the complainants has been delayed due to force majeure circumstances such as orders passed by the Hon,ble Environment Protection Control Authority, and Hon,ble Supreme Court and COVID_19.

The pleas ofthe respondent advanced in this regard are devoid of merit.

The orders passed were for a very short period of time and thus, cannot be said to impact the respondent-builder leading to such a delay in the completion.

Furthermore, the respondent shourd have foreseen such situations.

Thus, the promoter respondent cannot be given any leniency on the basis of aforesaid reasons.

23.

The respondent-promoter also raised the contention that, the Hon,ble Supreme Court vide order dated 04.1L.2019, imposed a blanket stay on all construction activity in the Delh j_ NCR region and the respondent was under the ambit of the stay order, and accordingly, there was next to no construction activity for a considerable period and other similar orders during the winter period 2077-201,9.

A comprete ban on construction activity at site invariably resurts in a rong-term hart in construction activities.

As with a comprete ban the concerned Iabours reft the site and they went to their native vilrages and look out for work in other states, the resumption of work at site becomes a slow process and a steady pace of construction realized after long period of it.

It is pertinent to mention here that buyer's agreement was executed between the parties on zs.0s.2o1,Z and as such there was no possession clause in the said agreement.

In Fortune Infrastructure and Ors. vs.

Trevor D,Lima and Ors. [L2.O3.2OLA - SC); MANU /SC/OZSJ /2018, Hon,ble Apex Court Page 15 ot 22 *HARERA #-eunuennnr observed that "a possession of the Cornplaint no. plaint no.

2295 of 2OZ4 person cannot be made to wait indefinitely for the flats allotted to them and they are entitled to seek the refund ofthe amount paid by them, along with compensation.

Although we are aware of the fact that when there was no delivery period stipulated in the agreemen! a reasonable time has to be taken into consideration.

In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract.

Thus the due date of completion of the project comes out to be 25.05.2015 which is way before the abovementioned orders.

Thus, the promoter_respondent cannot be given any leniency on based of aforesaid reasons and it is well settled principle that a person cannot take benefit of his own wrong.

24.

Further, the respondent-promoter has raised the contention that the construction of the.project was delayed due to COVID-19 outbreak, lockdown due to outbreak of such pandemic and shortage of labour on this account.

The authority put reliance iudgment of Hon,ble Delhi High Court in case titled as M/s Halliburton Olfshore Services Inc.

V/S Vedanta Ltd. & Anr. bearing no.

O.M.p (I) (Comm.) no.

BB/ 2020 and LAs 3696- 3697/2020 dated 29.OS.20ZO which has observed rhat_ "^69..The past non-performance of the controctor cannot be condoned due to the COVID-19 lockdown in March 2020 in India. fn" Cortro*ii iorln breach since september 2019, opportunities were given to the contrqctor to cure the same repeatedly.

Despite the same, the.Contractor could not complete the project The outbreak ofa pandemic cannot be used o, on "rruu So, ,Li- pirlormince o1a contract for which the deodlines were much before the outbre;k iaef, 25.

In the present complain! the respondent -". li;I" i; complete the construction of the project in question by 25.05.2015.

The respondent is claiming benefit of rockdown which came into effect on 23.03. on 23.03.2020 whereas the due date of completion of the proiect was much prior to the event of outbreak of Covid-19 pandemic.

Therefore, the authority is of the view that outbreak of a pandemic cannot be used as an excuse for non_performance of a contract for which the deadlines were much before the outbreak itself Page 16 ot 22 G.

26, HARERA M GURUGRAII Complaint no.

2295 of2024 and for the said reason the said time period is not excluded white calcutating the delay in handing over possession.

Findings on the reliefsought by the complainants: G I Direct the respondent to refund of entire consideration amount of Rs-5a,50,000/- along with lBolo per annum from tne Aaie of allotment till date.

In the present compraint, the comprainants intends to withdraw from the project and is seeking return of the amount paid by them in respect of subiect unit along with interest at the prescribed rate as provided under section 18(1J of the Act.

Sec.

1g(1) of the Act is reproduced below for ready reference. "Section 7B: _ Return of(tmount and compensotion 1B(1). tf the promoter fails to complete ir is unoble to .que possession ofan aportment, plot, or building. (a) in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the daie specified therein; or (b) due to discontinuqnce of his business os o developer on account of suspension or revocotion of the registration under this Actorfor any other reason, he shall be liqble on demdnd to the qllottees, in cose the allottee wishes to withdrqw from the project, without preiudice to ony other remedy available, to return the amount re;eived by him in respect of thot qportment, plot, buildins, as the case mqy be, with interest ot such rote as -mdy be prescribed in this behalf including compensotion i; the mqnner qs provided under this Act: Provicled that where an allottee does not intend to withdruw from the project, he shall be paid, by the promoter, interest for every month ofdelay, tillthe handing e handing over ofthe possession, at such rote os may be prcscribed.,, zz. on rhebasis or the documents placed on ,r"1?:Hfif:lid,].,irrior, ,udu by the parties, the authority observes that the complainants had booked a commercial unit in the project namely,,,Vatika INXT City Centre,,, Sector 83, Gurugram, Haryana by submitting application form to the respondent company.

Thereafter, a buyer,s agreement was executed inter se parties on 25.05.2012 allotting a unit bearing no.

114, 1,r floor, Tower A admeasuring Page 17 ot 22 750 HARERA GUl?UGRAM sq. ft.

The complainants have paid an Cotnplaint rc.

Z2gS of2024 amount of Rs.58,500,000/- towards the sale consideration of Rs.58,50,000/_.

Subsequently, the respondent has allotted a new unit bearing no.434 on 4rh floor Block C in favour ofthe complainants vide letter dated 75.04.2013.

28.

Further, clause 12 ofthe buyer,s agreement dated 2i.Oi.2ol|provides for the terms of payment of assured return and committed return and the relevant para of the letter is reproduced as under for ready reference: "12. .__the DeveloDer has o ;;.;';i,;;;;ii;";';"x':;;i,;;,lf y",,:k!;;":,,:,{:::,;iT:;":i;l;i;! date of execution oS this agreiemeit lilt tne conpi"tio, oiSi,oiirrrtion o1 tn" said Building.... t:)^!: ^?:.,":,,? f : .,,t pay @ the Buyer Rs.6s/. per 5q. ft. super oreq o] the 50id Lommerctol Unit as committed return for up to thro;e yeirs from the dote oI compretion of construction oJ the sqid ts;itaiig or titt tii saii tonmercia! (Jnit is put on leqse, whichever is earlier..,, " ' -1e.piosu ,upptieal 29, In view ofthe aforesaid terms, the respondent was obligated to pay Rs6S/_ per sq. ft. per month on super area of said unit w.e.f ZS.OS.ZOTZ [i.e., when the buyer's agreernent was executed) till the completion ofthe construction of the building.

It is matter of record that the respondent has paid Assured Return up to June 2019 as admitted by the respondent and has stopped paying the same thereafter.

30. after.

30.

In the present complaint, the respondent has contended in its reply that the respondent has intimated the complainants that the construction of Block F is complete wherein the subject unit is located vide retter dated 27.o3.zo7}.

However, admittedly, the OC/CC for that block where the unit of the complainants is situated i.e., Block C has not been received by the promoter till this date.

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

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 Page 18 of 22 DA *X, @;,""rr"s"trdl s, the construction of the pro,ect is not complete till date The HARE GURUG ect.

Thu ffi& pro) Complaint no.

2295 of 2024 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.lnViewoftheabove-mentionedfacts,theallotteesintended to withdraw from the project and are well within their right to do the same in view ofsection 18(1) ofthe Act, 2016.

Moreover, the Hon'ble Supreme Court of lndia in the cases of Newtech Promoters and Developers Private Limited Vs' State of U'P' and Ors' fsupral reiterated in case of M/s Sana Reoltors Private Limited & other Vs llnion ol India & others SLP (Civit) No' 13005 of 2020 decided on 72.05.2022 observed as under: 25.

The unqualiJ'ied right ofthe allottee to seek refund referred Under Section tafi)(a) ind Siction 1g(4) of t'he Act is not dependenr on anv ,oitiigencies o, stipulotioni thereof lt oppears thot the legislature hos ,i,nsriusty proriaia this rightofret'und on demand as qn unconditional absolutu ;ight to the ollotie, if the pronoter foils to giue po,5session of iii opoui iii opoui"rc plot or buildiig within rhe time stipuloted under the terms ofthe agreement regardliss ofunforeseen events or stoy orders of the Coirt/rrlbunol, whiih s in either woy not oftributable-to the ollottee/htome buyer, the promoter is undet an obligotion to refund the o.ourt on demind with interest at the rote prescribed by the Stote Government including compensation tn the monnet frovtded under the ict with the proviso that if the allottee does not $)tsh to withd"ratN from the project, ie shall be e; ed for interest t'or the period of delay till handing over possession at the rate prescribecl " rne promoter"is responsible for all obligations' responsibilities' and functions under the provisions of the Act of 2016' or the rules and regulations made thereunder or to the allottees as per agreement for sale under section 11(a)tal.

The promoter has failed to complete or unable to give possession ofthe unit till date Accordingly, the promoter is liable to the allottees, as the allottees wish to withdraw from the project' without prejudice to any other remedy available, to return the amount received by it in respect of the unit with interest at such rate as may be prescribed' 31.

32.

Page 19 of 22 33. ffiHARERA #*eunuennu Admissibility of refund along with complainants intend to withdraw from Complaint no.

2295 0f 2024 prescribed rate of interest The the project and are seeking refund of the amount paid by them in respect of the sub,ect unit with interest at prescribed rate as provided under rule 15 ofthe rules Rule 15 has been reproduced as under: Rule 15.

Prescribed rqte of interest- [Proviso to section 12, section 1B and sub-section (4) and subsection (7) of section 1el (1) For the purpose of proviso to section 12; section 18; ond sub'sections [4) and (7) of section 19' the "interest ot the rate prescribed" shall be the Stote Bank of lndia highest morginal cost oflending rote +20,4 : Provided that in case the Stote Bank of India motginal cost of lending rote (M ng rote (MCLR) is not in use, it shall be replaced by such benchmork lending rates which the Stqte Bank oflndia moy frxfrom time to time for lending to the general Public 34.

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.

35.

Consequently, as per website of the State Bank of India i.e., https://sbi co in the marginal cost oflending rate (in short, MCLRI as on date i e, 09 05 2025 is 9.10%o.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2 o/o i.e., lt.LOo/o.

36.

During proceeding datect 09.05.2025, the counsel for the complainants requested for allowing refund of full amount deposited along with interest as no AR has paict by the respondent post June 2 018 and hence, the allottee does not wish to continue with the project.

The respondent has submitted that there has been no clefault on their part as it has duly paid assured returns to the complainants till the enactment of the BUDS Act after which it became illegal due to the Iegal position over unregulated deposits post the Page 20 ol 22 ffiHARERA S-eunuennur Complaint no.

2295 0f2024 enactment of the BUDS Act.

The authority observes that if the allottee does not wish to continue with the project, he is not entitled to the benefits of assured return as the purpose of assured return is to compensate the allottees for the amount paid by him in upfront and which is continued to be used by the promoter for the period specified in the agreement and the payment of assured return as well as the prescribed interest on the amount paid up would result in double benefit to the complainants and would not balance the equities between the parties.

37. rties.

37.

In view of the above, the respondent/promoter is directed to refund the amount received by it from the complainants along with interest at the rate of l7.7Oo/o as prescribed under rule 15 of the Rules, 2017 from the date of each payment till the actual date of refund of the amount within the timelines provided in rule 16 rif the Rules.

Out of the amount so assessed, the amount paid by the respondent on account of assured return shall be deducted from the refundable amount.

H.

Directions ofthe authority 38.

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

The respondent/promoter is directed to refund the amount received by it from the complainants along with interest at the rate of 11.100/o as prescribed under rule 15 ofthe Rules,2017 from the date ofeach payment till the actual date of refund of the amount within the timelines provided in rule 16 ofthe Rules ii.

Out of the antount so assessed, the amount paid by the respondent on account of assured return shall be deducted from the refundable amount.

PaEe 21 ot 22 MHARERA S- eunuennu Complaint ro.

2295 of 2OZ4 iii.

A period of 90 days is given to the respondent to .orffiiti, tt* directions given in this order and failing which legal consequences would follow.

39.

The complaint as well as applications, ifany stand disposed of.

40.

Files be consigned to registry.

Dated: 09.05.2025 {*ur-t (Arun Kumar) Chairman Haryana Real Estate Regulatory Authority, Gurugram .t!# "trft W HARERA Page 22 ot 22