KIRAN NANDAL AND ANR vs VATIKA ONE ON ONE PVT LTD

Complaint No.

241 of 2022 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGMM Complaint no.

241 of2022 Date of complaint 31.0,..2022 First date of hearing 13.05.2022 Date of decision 03.01..2024 CORAM: Shri Ashok Sangwan Member APPEAR/INCE: filed by the complainants/allottees tate (Regulation and Development) d with rule 29 of the Haryana Real Sector 77, Complainants 1,.

2.

V'atika One on One Pvt Ltd Rlegistered Address: Vatika Business Cenl.re, Thapar House, 3rd Floor Eastern & Central raring, Gate no.

1, 724lanpath l{oad, CP, Ne'nv Dtelhi-110001.

Vatika Ltd.

R.egistered Address: Unit No.

A-002, INXT' City Centre, Ground Floor, Blor:k A, Sector []3, Vatika India Next, Gurugram -122012.

Respondents Shri Vaitrhav Sandeep Advocate Ms.

Ankur Berry Advocate Complainants Respondents ORDER Page 1 of 18 l A.

2. and Development) of section 11[a)(a) 2017 [in sho the the Act wherein iLt inter r all Act asr Un ERA (Regulation r] for violatio prescribed the promoter be responsible ilities, and under the provisio of the r the rules an regulations made under or to the the for sale executed and proiect- particulars of of sale considera the t paid by the ofproposed handi over of ion, ng tabular ?ageZ of 18 L, Sector- 16, 08.2015; dated 20.09.2077 nd floor, 001 of Complaint) Complaint No.

241 ave been detailed in the s.

N.

Particularr Details 1.. ccation of 2.

Nature of tl e project Commercial colony 3.

Project are: 12.13 acres 4.

3l no.

5.

Name of licr nsee Keshav Dutt anrl others.

6.

RERA Regis registered ered/ not 7.

Unit no.

241 of [super area 1700 sq. [Page no. of ComplaintJ Date of 23.1,0.201, of complaint) Date of builder agreement 72. and Ors" vs.

Trevor (72.03.2078 SC); fB Hon'ble Apex Court person cannot be made to for the possession of the flats they are entitled to seek poid by them, along Ithough we zre aware there was no delivery in the agreement, a has to be taken into In the facts and of this case, o time period ild have been reasonable for the le for the contract period reasonable of3 years completion F'age 3 of 18 8. area 9. ing 10.

7L.

Possession r lause Due de possession te of ERA Complaint No.

241 of In view of the date of ought to be the due due date the unit (6 months above-mentioned the booking dated 2 ken as the date for ca of possession. handing over the out to be 23.04.202 10.2018 lating r, the sOA dated 73.L2.2018, on page no.

46 of Amount complai 73.1,2.2018, page no.4€i of Assured received /- (on1.3.12.2018) Request cancellati /refund (Page no.

02.02.202 complaint) of complaint) (annexure C12, page 72 of Page 4 of 18 13.

Total considerati 1,4.

15.

1,6.

ERA Complaint No.

241 of Undertaki regarding cancella unit/comm return.

26.04.201 Iannexure The develo 13,60,000 compensa -4,page 30 of repl paid an amount to the complai for delay in f Rs.

Money compla 28.0L.2021 ved AS 71, of complaintJ 3.

B. mplainants the the name and Distr real estate project known r 16, Village Silokhera, n eh 2018, rep tative of the respon fell into their trap of ich were pu forth as lucrative deal in form of assured returns 10 till the tion of the unit and red rental @8o/o after representations and That ng on the sed representati of the responrJents, the and disbursed a sum of y the shrewd girmmicks of pl ties of the a retail space in the pro Page 5 of 18 t/ Haryana. the authorised 06.09.2021 [Page no.27 of reply) complainants flE{s ili 5.

7.

HARERA Complaint No.

241 of 202?

GURUGRAM INR 4,45,53,600 through RTGS on 23.10.2018 as is evident fnom the account statement dated L3.L2.20L8.

That in respect of the huge sum of money paid by the complainants, no allotment of any unit had been made by the respondents till date.

Allotment of the unit is considered to be a done at the time of booking, i.e., payments made against the unit, as evident from section 11[3) of the Ar:t. the Ar:t.

That not only did the in the allotment of the unit and the e>:ecution of the agreem e but consequently also failed in makirrg available the information of the unit and the project, as per the section 11[3) of the Act therebyr ylolrting the same.

The account unit with the bifurcation of the carpet and super , : i"l Havilrgtaken LOOo/.s.{)Tthe sald.pplasiderfition6:om the complainants and not rnaking the allotment or executing the agreement for sale/builder- buyen agreement as per the Section 13 of the Act, the respondents have been in violation of the same.

Further, no agreement for assured returns was executed with the complainants.

The complainants, put their trust in the respondent, which was shattered by the utter malaftde and unlawful acts of the respondents.

Page 6 of 18 /1/ Complaint No.

241 of Z0Z2 8.

9.

GURUGRAM eived a sum of 9,44,516.13 against assured o.

001130 dated l3.LZ.Z01g drawn on Kotak returns were paid by either of the respondents nts constantly requesting the same, tinne and e delaying tactics of the respondents and not mised assured returns, alrotment of the unit and plainants decided to get from the respondents, s acknowledged by the resporrdents, as is evident from the inter office memo dated ZO.I2.ZOlg.

10' That nlaking the booking of the complainants on the basis onr payment of assrrred returns and cancelling the same, is a grave viplation of section 1,2 of the Act and allows the complainanfs to get refurrd of their deposited amounts along with interest.

1L'Therezrfter, after multiple meetings, upon the illegal, mal2fide and unlawlul conduct of the respondents, they acceprted their obligation 1o refund the amount paid, as is evident from emails dated o2.o42o1,g, 06.02.2'.01,9 and za.l1,.zozo.

However, the same w,zls again unreasonably delayed for two years throughout wh:ich, the complaLinants were in constant communication with the res;pondent.

The cotnplainants, shocked by such mala fide conduct of the rerspondent no. ondent no.

2, expressed their discomfort vide email dated 0L,04.2019.

However, no action was taken thereafter, as is revealed frorn further emails.

Page 7 of 18 r' and also deci the ERA ,more than years of enjoying the money of the complainants misa the same, the complainants made te an unde dated 28.0L.2021 through which the interest nent to be by the respondents was intentionally left out te knowing the same is unfettered right of the lainants, as the provisions of the Act, which, the complainants to the ts.

That it was ca cally that the ents in three instalments: 30% at me of execu of th ng, 20o/o was bound to be paid 15 days fro the undertaking and 50% 90 days the undertaking, as is from That till date, the following manner: ainants in making p nts, as above men rece'ived thereafter by the ng dated 28.0L.2021, upon ,hed, the respondent no.2 by 'J.lo/o interest on the Page 8 of 18 nts.

The ts failed in o liging their responsibilities the unde ng and payment of remaining amount of Rs.

3,600 /-. re, as per use 4 of the und iable to co te the claiman 72 complaint No.

241 of ?02?

13.

That rro payment Amount received Rs.

15,00,000 Rs.

1,80,00,000 (Rupr:es One Cro.re Eighty Lakh only) r' 201 sh two That com I ded, The Di of of ERA ing value.

T however, despite be entitled to as per section , according to n of the sum.

Th ; wro nant the ng with i seek the refund the same, the com with interest on a ainants ro-rata 18 of the Act read wi rule L5 of the H Rules, which, the rate of in payable to the allottee be the State k of India highest I cost of lending plus respondent n 2 failed to repay remaining amoun to the lainants and to sign on the lation dated 02.02.2 the e deposited amount Ils.

4,45,53 /- by the complai from 23.L0.2018 till date nd. by respo mplainants ha got no locus standi cause of action to file the present complaint s based on an erroneous : as well as an incorrect Page 9 of 18 no.2 to pay Complaint No.

241 no. o.

241 no.2 communicated the for reimbursement of the absolve itself from any on was on account of plainants have been t of Rs.

3,75,53,600/- t complaint. provisions of the GURLIGRAM personal reasons, C.

Relief sought by the interpretation of as per sec 18 of Act of 20'.16. understanding of the terms and conditions of the application form dated 76.1,0.2078.

LB' As per clause 9 of the terms and conditions of the application form the respondent company is authorized to forfeit the earnest money along with other non-refundable amounts.

That the complainants, admittedly, on 05i.02.201'9, requested for cancellation of the booking, thus the Complaint No.

241 of Z02Z requires detailed examination, thus casesrequired 20.

The complaint has respondent and to of the present the real estate intentilon to earn to thinLk beyond the the cost of others. and vexatious complainants of [rame, good will Page 10 of 18 its rights to deduct, earnest money.

Further the has alsb e0fnpleted the construction, applied of grievance as alleged by the compllainants, it unjust enrichment.

The actual reason for filing legal way and to attempt to gain finirncially at complainants have instituted the present false against the respondent company as the own free will cancelled the allotment within 4 for allotment of commercial unit in the One with respondent company owing to the reputation of the respondent company, That the / HARIERA GURUGRAM application form was filled and submitted on 16.10.2OL8,however even before the BBA could be executed the complainants chose to exit the project, and thus cancellation request dated 0S.oz.zo19 was sent by the complainants, thus the respondent became empowered to deduct the earnest money from the consideration amount before refund.

That it is pertinent to submit that the respondent has diligently worked for the the construction of building was has already been received on 06.09.2021.

24L of 2022 Z2.Furthrlr vide undertaking dated 26.04. ted 26.04.2019, the complainants have admittedly received an amount of Rs.

13,60,000/- from the respondent company, in lieu of the delay caused in refunding the amount, Thus, the complainants were already intimated and were aware of thel delay that would be faced while refunding the consideration and thus the respondent company duly compensated the huge amount of Rs.

13,60,000 / -.

E. furisdiction of the authority: 23.

The plea of the respondents regarding lack of jurisdiction oIAuthority is rejected.

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

E.

I Territorial jurisdiction As per notification no.

L/92/2017-ITCP dated 1,4.12.2017 issued by Town and Country Planning Department, the jurisdiction of lleal Estate Regulartory Authority, Gurugram shall be the entire Gurugrarm District t/ Page 11 of 18 E.

II 11( for the ject in qu di dea rvvith the !iubiect on 11(a)(a) nsible to th J[a) is reprod fi@)(a) as per the be, till the be, to the competent 34-Fu s4a the Act the cose CASE or th and So, co co the liance of obl istobed purposes wi offices situated in is situated within t.

Therefore, authority has com t complaint. iurisdiction the Act, 20L6 provid allo ent for sale.

Section AS for all of this Act functions under the thereunder or to the of allottee,s, as the or buildings:, os the of allottees obligations cast upon the under this Act and the rules tereunoer. sions of the Act quo above, the authority has to decide the :omplaint regarding non- jurisdi ons by the pro leaving aside compensation by the adjudicati officer if pursued by the ntatala stage. complainant for the respo to refund the along with Complaint No.

241 t case, rugram that the prom as per sec 18 ofAct of2OL6. amount paid l>age 12 of 18 HARERA GURUGRAM F.

Entitlement of F.I of the Authority: URUISRAM complaint No.

241 of 2022 F'II Direct the respondent no. ondent no.

2 to pay interest on the deposited amount lof ns.

4,45,s3,Go0 /-by the complainants from z3.Lo.zolg tilt date I refirnd.

24.The aforesaid reliefs sought being connected are taken up together.

25.

The cormplainants booked unit bearing no.

001, ground floor, block 4 in Itt e resRondent's project "vatika one on one,, by paying an amount of Rs. rssess:fon of the flats allotted to them and they are entitled to seek the fund of the amount paid by them, along with compensation.

Although are aware of thefactthatwhentherewqsno delivery period s;tipulated the agreemenl a reasoneble time has to be taken into conside,ration. ln t to be taken as the date for calculating the due date of possession. erefore, the due date for handing over the possession of the unit mes out to be 23.L0.2021.

Further, an extension of 6 months is rovided to the respondent in view of HAREM notification no.

9 /3- 020 dated 26.05.2020 whereby an extension of 6 months was iderd for projects having a completion date on or after zs.o3.zozo.

I, Palge 13 of 18 have b,C€h RA for completictn of the contract.

In view of the wortll Rs.8,44,516/- on1.3.12.201,8 and thereafter defaulterd in paying HARERA complaint No.

GURLIGRAM The completion date of the aforesaid project in which the subject unit is being allotted to complainants is 23J,0.2021 i.e. after zs.o3.zozo.

Therefore, an extension of 6 months is to be given over and above the due date of handing over possession in view of the aforesaid notification on account of force majeure conditions due to outbreak of Covid L9 pandemic.

Therefore, the due date for handing over of possession comes out to be 23.04.2022.

The r:omplainants contend ndent failed in alllotment of unit rand signing the agree with them.

Furthermore, the surrendered the unit by requesting for refund on 05.02)..2019, way before the due date of possession, and hence it was empowered to dedur:t the earnest money before making refund. ng refund.

Further, the respondent contends that vide an undertaking dated 26,04|2019 given by the complainants, they themselves opted to opt out of the project since the assured return could not be paid to them in vie'*, of the new "/ Page L4 of 18 whereby the unde,rtaking.

The Rs.

1,80,00,000/- on its promise to 27.On the other led them requesting for a refund.

Further, they the remaining amount. the respondent contends that the complainants HARERA complaint No.

241 of 2022 GURLIGRAM statutory compliances.

Further, a compensation of Rs.

13,60,000 f - was provided to complainants in lieu of time required for refunding the amount paid.

The respondent contends that the occupation certificate of the unit has already been obtained on 06.09 .zozL.

On consideration of the documents available on record and subrnissions by both parties, the Authority is of the view that the complainants have paid ar sum of Rs.

4,45,53,600/- t.g Lhe respondent against the total sale consideration of Rs.

3,97 that the complainants requested for rellund vide e-mail dated 9, and then on 26.04.2019, they tg the statutory compliances.

In lieu of this new development and on our request, the Developer has cancelled the booking of the lLnit. we have received a sum of Rs, 73,60,000/- (Rupees Thirteen Lakh Sixty Thousand )nly) from the Developer towards the compensation in lieu of the time period required for refunding the Consideration paid by us against the iaid unit. with the receipt of this amounl we undertake that we shall not have any claim against the Developer of whatsoever naturewith respectto the committed return Page 15 of 18 received a sum of Rs.

13,60,000/- as a.

That we 0ne' Vatika ,after referred to as "[Jnit,,) devetoped by on One Pvt Limited having its Corporate Floor, Vatika Triangle, Sush,rant Lok-1, ; consideration of Rs.

4,45,,53,600/- ") upfront on the condition of getting )ffice at Gurugram the total monthly on such Unit. b.

Thatwe Nov.'2078 committed I 29.

30.

I 29.

241 of 2022 GURUGRAM qua the booking of unit except the Consideration amount., Since, the said request was made by the complainant before tlhe due date of possession, the respondent is empowered to deduct earnest money before making a refund.

Thereafter, an undertaking dleed dated 28.01-.2021 was executed by both the parties regarding the tenurer of refund.

However, the respondent failed to pay the complete amount as per sraid deed and paid only a part sum of Rs.

1,80,00,0 00 /-. return the paid-up amound, 1/ Page 16 of 18 Estate Re by the ffi HAFIERA Complaint No.

Z4j. of Z0ZZ GURUGRAM theye:ar 2079was framed known as the Haryana Rear Authority Gurugram fForfeiture of earnest money Regulations, 11(5) of 2Ol,B,providing as under ,,5.

AMOUNT OF EARNEST MONEY 32. ... q vtttrvL0t wl manner or the buyer intends to withdrc,w from the l<eeping in vievr the aforesairl provisions and the facr[s detaile,d ut of l;he amount so assessed, the respondent shall deduct thre amount 'hich has already been paid to the complainants. irections of the Authority: {enc!, the authority hereby passes this order and issues the following irections under Section 37 of the Act to ensure compliance with bligations cast upon the promoters as per the functions entrusted to e Authority under Section 34(0 of the Act of 2016.

Page t7 of 18 fl 31. above, the deductin g 1.0o/o of t ony agreement containing any clause the aforesaid regulations shall be void and bqd rate.9hg. the date of cancellation i.e., of actual realization.

ERA 34 35 File Complaint No.

24L of is directed to refun the paid-up amou t after ucting 1 of the sale co being earnest ney ng with i t at the prescrib rates from the ate of lation 05.02.2019 up to the of actual real t of the t so assessed, the ndent shall ded the which already been paid the complainants. period of 90 is given to the res ents to comply th the irections legal conseq follow. eq follow. laint stands consigned Haryana ', Gurugram UreUGR PaLge 18 of 18