TANUJA VARDHAN KRISHNATRAY vs VATIKA ONE ON ONE PVT. LTD.

HARERA BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM GURUGliAN/ Ordcrpronounccdon: 02.r2.2022 vrtika Clty INX CityCertre cR/sl31/2021 I 'ranuja vardhao xnshnrkat v/s v,rkroneonOn.Pnv .Ltd.&ore L 5hrL.

Santeev Kumar Arora + Shfl V lay Kumar Coyal ORDER This order shalldispose ofboth the complaints tided as above Iiled bclorc this authority under section 31 of the Real Estate (ltegulation and Developmentl Act, 2016 [hereinafter.efcrred as theAct"l readwith rulc 28 of the Haryana Real Estatc (llegulalion and Devclopmentl Rules, 2017 (hereinafterreferredas thcrulcs Jforviolatronolsection 11(4){x)orthe Act wherein it is inter alia prcscribed that the prorroter shall bc responsjble for all jts oblgations, rcsponsibilities and lunctions to the allottees as per the agrecmcnt for sale cxccuted inter se b(twe.n p.rtics EHARERA S-crnrcnm,t E"",pb.,""r133,5 omplarntno 5113 51ll l 3 The co.e issues emanating from them are similar in nature and thc complainant(s) in the above reicrred matters are allottees ofthe projcct, namely,Oneon one-Phase I (conrnrercial complex) beingdeveloped by thc same respondent/promoter i.e., va tika One on one Pvt.

Ltd.

The terms and olthe builder buyers aereements fulcrum of the issues i.volved in both the cases pertains to failure on the part ot the promoter tt, deliver timely possession ofthe units in question, seekingaward ofassured r€turn, etc. 'lhe details oi the complaints, reply status, unit no., date of agreemcnt, assured return clause, assured return rate, possrssion clause, due datc of possession, total sale .onsideration, anroLrnt paid uP, and reliefsought ar. given in the table below: Proiect One on one Phas€.1, sJcto!

1q!!!.89 silokhe ra, GuruEMr Assured return clruse i. conDlaint bearing nos.5131/5133 ol2021 ali .e15.AssuredReturn althe Develope. tr t\luthet rote?d thot The Developet oy, where the buyer hos poid 100% oJ the rotu| sole conside. e conside.ation ond othetchoryetlorthe Connerciol Uni, upon signing ofthis, ASrune pa!

Rs 151 55/' (Rupeet o;e iundred ond flt! ond sixry-five pois ontv) pet sq. ft t tupet ar@ per honth br war ol o$ured t.tum to the BuleL ol en"in co|egor!1as) ol connerciol Unt os per i'ts poiicy, Jrcn the dote ol ae.udon ol this ogr@me ritt the .on.toction oJ the Soid Conmercldl Unit i5 conplete Such Palitv of the Developer nav chonge lron ttne to tihe where the DeveloPer ma! ||ithdtow the ossured retun schente Clause 16, LeasingArrang.mcnr At the requesr ol hc Auy* o\ oforcso l, Lhe Develoqet ogrees tu prt the Sa ttnn individuollyorinconbindtionwithathet odjoinng untts on leose,Iot and on behol olthe Buler, asond when the soid unita rea(lt ond lt Ior occupotion.The Btvet hot cteoru understaod the generulnsk it inwleedin givingonypteniteson leose lo hnd portesond ho\ L ndertoken to be o t the sold d e exclusivelv wi thoLt o nv liobilitv w notsoevu on th e po n 'rhe d eveloper w nl pay ta the buler Rs.130/ nanth os cannitted teturn lor up to three ore! ofthe v l unt per dote ol conptetion ol ffHARERp S- clnltcnnu LI [c-,pbi tr..s133,51] t "f ,ori .onstructim of the Ml.l Building or th. sa unit is put @ Leose, whichever it eorliq.

The Bulet will stort rcceiwns leose rcntol in rapat ofthe eid Unit in oc.a.Aance with the leo docuhent os noy be executed ond os described hereinofter ton the do? ofconnencement ofteose rcntol. tfthere is d provision in the leose dodment fu onr rent. free penod on occouat oI lit out by the tessee or any other accaunt, then the Buler shall notbeehnded lot any rent dutins the sone.

Unit rclarcd dctails ^lloh I l-' The aforesaid complaints werc filed by the complainants agarnst the promoter on account of violation of the bujlder buyer's agreement executed between the parties irrerse in .cspect ofsaid unitlor not handinB overthe possession by the due date, seeking award ofassured return. ed return.

It has been decided to treat the said complaints as an appli:ation lor non- compliance oa statutory obligations on thc part ol the promotcr/ respondent in terms ol section :14(0 ot rhe Act whjch mandatcs rhc authority to ensure compliance ofthc obligations c.st upon lhe pronrotcrs, HARERIi GURUGRAI,/ 6 thc allottee(s) and the real estatc agents undcr the Act, thc rules and the regulations made thereunder. 'lhe facts of all the complaints filed by the complainant(r/allottec(r.rro also similar.

Out of the abovc-nrcntioned crse, the particulars ollead case CR 5131/2021 titled as Tanuia vordhon Krishanatray vs.

M/s vatiko OneonOneltil.&A r. are being takcn into consideration for deternrining the rights ofthe allottee(sl qua delay possession charges, assured r.lurn, execution olconveyance deeds.

Proiectand unit related details 'lhe particulars ofthe proJect, the dctails oI salc coDsrderaiion, t lc.nroLrnt paid by the conlplainanl(sl, datc oiproposed handiDg over rhc posscssnn delay period, ilany, have been detailed rn the following tabular form: CR 5131/2021 titled as Tanuia Vordhan Ktishanotroy Vs ll/s vatika One on One ltd. & 4ff. l l (Asallcsed by the complainant !

Narureolthe proj.ct Area olthe proje.t 12.1.r125 acres DTCP r.icenre i 05 ot2015 dated 06.08.201 3105.2016 Oneon One Phase.1, Sectotr 16,villagc l 5 IARER GI]liUGRAN/ Conplaint no.

5133, 5131 of 2021 31.05,2016 (As pcrannexure P-s on pat!. no 6l oathe Unit no..436 on 4,h floor of block 3 (As perannexure P'5, BBAon page no.62 oathecomplaintl Rs.

42,7 7 ,955 /- complainnnt on page no Rs.42,77 Rs.

42,77 ,9sS / oaBBA at pase 63 of lruse 2(b)(i) 31.05.20151 021, 09.2 lvl 06 (^ 8BA i.e.,31.05.2016 till (ompletion 01 construction i.e., 01.09.2021 Rs.

72,825 per month I 54 months = Rs.

Till constru.tion of s,id Dnir i( complctc.

IsinLc lhe burldcFpronror.r has.pplicd lor obtaininl o.cuplh) .crlilicate on 12 08 2021 & 01.09 2021 ll shall bo presumed that by that ti. y that ti.io the construdon ot rhe towcr nmsr bc Assurcd retu.n Lom date ol.x..xri.n ,il 46,60,800/ Date of execunon of Datc ototfer of.oss.sc Totalamount paid by the Due date oadeljveryof Calculation ofassured B, 11s.6,U2125/ ) ,.

I 12.

Oc.upationertificate *HARERA l$-cLlnLnnnrr,r 8.

That the respondents approached thc complainanr for inveshn.nr rn commercial unit in VatikaOneon One oiapproximately 50rl sq. feetsuper area and handed over th. prospectus enricing him ro invesl in rhe projc.r 9. 'lhe respondents assured thc conrplainant paymenr of monthly return ar the .ate of Rs.

151.65/, pcr sq. ft. per month on super area on the investment made in the project upon rcceipt of full down paymcni. 'the said assured return was to be paid t,llthe completion oirhe construcrjon of the said burlding and thereafter, Iease rentaloi Rs.

130/ per sq. fr. p.r month was to be paid on superarea for up to (hrecycars iiom the dirto of completion olconstrucnon of rhe said burlding or tillrhe sard un rr Ls !ur ol 1ease. whichever is earli$. '10.

That abuyer's agreementwas executed between the parries on 31.05.2016 and a unit bearing no.436 on the 4,h floorofblock no.3 admeasuring 500 sq. ft. was allotted in his favour, for a total sale consideratjon ol Rs.

42,77,955/- agajnstwhi.h he has already pajd the ent,re amount 11.

That it is submjtted that as per clause 15 ol a builder buyer agreenre|t dated 31.05.2016, the complainanr was cnrirled ro assurcd retunr nr thc rate oi Rs.

151.65/'per sq. ft. per month till the completion of thc construction of the building.

Iiurther as per clause 16.1 of: buildcr buycr agreement, he was entitled to an amount @ Rs.

130/ per sq. ft. per month on super arca tor upto thrcc years irom thc datc of complction ol construction ofthe said building or th. said unit is put of le]se, whichcver 5131or2021 HARER GURUGRAI/ 12.

UGRAI/ 12. 'lha! as per the rerms of rhe atoresard builder buyer agreemenr the respondents started paying the complai na nt, assured retum amounting ro Rs.75,825.00 /- per month trom 08.12.2014 and contin!ed to pay rhc same.

However, it lasrly paid the said assurcd rerurn on 07.D8.2018.

13.

That it as per the te.ms of the albrcs.i.l agreement for rhe Lrnir, thc respondents have duty made payments of assured return ro thc complainant till Scptember 2018.

However, abruptly, since october20l8 it has stopped making payments rowards the assured rerurns rn contraventioh with the agreed t.rms and conditions.

Irurthsr. in re.nrs ot a builder buyer agreement entered bythe comptainant with respecr to, rhc respondents were under obligarion to pay him assured.erurn from th. date of execution of this agreement rill the constructiox of rhe said commercial unit is complere.

Ilowever, they have failed to pay rhc assured return since October 2018 rill Dccembcr 2021 amounnng ro Rs 29,57,175 / calnnai.'d @ tts.

75.{l2sl.per month 14.

That rhe complainant received an .malt dat.d 31.10.2018 from rh. respondents informing about suspension of alt rerurn-bascd sacs.

Thereafter, in 2019, the rcspondents started pressuris,ng him to srgn a fresh builder buyer agreement, which ilegally and wrongfrlly sought to omjt the assured return p.onrised undcr agreement, wirhcut explaining the terms and conditions olthe same afd impticarions ofth. same. l5 That the respondents vidc cmarldarcd 22 04 2019, senr an addendurn t. r builder buyer agreemcnt. tlowevcr, rttcgatty and wrongtuly soughl !o onrir the assured return promised undcr thc buildcr bLryc agrccnrenl EHARERA S-euntnnnv Thereafter, severalemaits were cxchaDgcd between rhe parties inctudinE the reminders wherein he souBhr serrlcmenr ot accounts qua assured returns.

Bu hey faited ro scrtle the accounrs towards rhe a:isured relu.ns despite various assu.ances.

16.

That the respondents vide emaitdated 06.12. ted 06.12.2019 sought rhe sjgned copy oithe addendum.

The said addendum was rejected by comptainant vide separare email dared 08.12.2019 and the o.ig,nal agreemcnts rher.ibre continue to remain in torce and the rcspondcrrs are fultv bound bv lh.

17.

That the comptainanr tinds it rathcr shocking that after having p.rid assured return aor two years as pcr rhe agrced rerms and undersranding the respondenrs are abusjng thcir dominant position and are unilatefu y seeking to coerce rhe complainant to sign an addendum wirhout assurei:l 18.

That the action ofrhe respondents for non,payment ofassu_ed rerunrs ts completely untathomabte since rhey have already recerved hr consideration as down paynent torthe said unrr 19.

Further, itisalsoclearthatrhe.espondcnrswjsh io rcnegeon theexecutcd builder buyer agreenlenr in order ro dcprive the conrplainanr ot assured return and lease rental as promised.

Atmost atl buyers haye been senr either fresh builder buyers agrecment or addendums atier stoppins payments ofassured returns in order to srop payment ofassured returns completely which form rhe fundamental term ofinvestment.

573r o12027 .,.

HARER GURUGRA|\/ 20.

That the complainant is ent,tled foran assured returns with interesr.t rh. rate ol18 % p.a., in as much as the same rate ofinreresrwas being charged for delay ,n paymenr in terms ot the alr.ady execured buitders buyer agreement, and keep paying further payments ofassured returns in ternrs ol a builder buyer agreernent atrcady exccured as the unir is sriI under 21.

Thatthe lresh builder buyeragreemenr does not mcnrion about the do!\rn payment plan made by complainant and insread only mentioned oi constn'ction mjlestones linked plaD oI payment, whereas jn terms ot thc allotmenr lefter and previousty signed buyer agreement, he has pard fult amount by way ofdown payment plan. ment plan. trurther, itdoes nor mention about assured return to be given by the respondcnts as provided jn terms ofrhc allotment letter and builder buyer agrccment already signed by hirn an.l the same has in fact been paid ro him tor almost iwo ycars i.c. p ro September,20l8.

Thus, by way of fresh buitder buyer agreeDenr. rh. respondents are seeking ro renege on rheaqreed ternN as conraincd,D ihe said two documents w.r.t. assured return & tease renrats.

22.

That the present complaint is without prejudice to the rights of rhe complainant to approach appropriate forunr seeking compensarion ibr delay in completion ot consrruction and handurg over the unit by rhe respondents within the rimc period sp.cificd in rh. atready excculcd builder buyer agreemcnt rn as much.rs rhc construcrion has nor b.en complered within rhe sakl tine trmir.

HARERA GURUGRAM 5131of2021 I 23.'lhafthecomplainantisconsrrainedtoiitcthispresentcomptainrrosecurc and ensure rhe payment oi rhe anroLrnr ot Rs.

29,57,t7: / - atotlg,Nith interest @ 180/0 per annum duc and payable by rhe respondents to hjnl which is duly acknowtedged by it towards the assured return and furrher continue to pay the assured return in rerms of the agreement dated 31-05.2016.1n viewoirhe aforesaid facrs and circumstances. he is lefr wth no other alte.nat,ve but to fite the presen r compla int.

24.

That rhe present comptainr is wirhin rhe prcscribed perioit ot trmitxtio since despite repeared rcquesrs madc by the comptairrnts.

0rc respondents have failed ro pay rhe amounr of Rs.

29,57,175,L ourstanding since october, 2018 to him till dare.

Irurther, in view of th(, directions oI the Hon'ble Supreme Court of lndia passed jn SMW[C) No.

3 of 2020. rhe limitation period from 15.03.2020 r t 02.10.2021 is er(ctuded tronr commuring the period of Ijmitation and limiratjon perjrd is furrhcr extended for 90 days w.e.t 03.10.2021 vide order dated 23. dated 23.092021 Therelore, there is no impediment jn fiting thc comptaint as such, rhc complaint is liled within the limiratjon penod in t€rms ot th€ suo moto orders passed by the Hon,bte Supreme Court ot India.

C.

Reliefsought by the comptainants: The complainants have sought fotlowine rctiei[s): i.

Dired rhe respondenrs ro rcfrain from cancelting the buitder buycr agreemenr/ cancellation of rhe unit of rhe comptainanr.

HARERA GURUGRAIV ,i.

Direct the respondents to pay the committed assured returns as builder buyeragreement from october 2018 til the 3 yearslrhe lease from the date ofcompletjon ofthe project. iii.

Direct the respondents toget 0C by rhe competenr au tho n ty.

29.

0n the date ol hearing, the authoriry exptained ro th€ respondenr/ promoter about rhe conrraventions as aLlesed to have bcen conrmrtted jn .elation to secrion 11(41 (a) oirhe act to ptead guitty or nor to ptead guitry D.

Replybytherespondents The respondenh have contesred the comptainr on rhe iolov,,inB grounds a.

That the complainant hasgot no locus standior cause otactron to f c the complaint.

The complaint is based on an crroneous nrerprerntron ol the provisions ofthe ct as welt as an incorrect understanding ot th. terms and conditions otthe tJBA dated 31.05.2016. b.

That at the very outset it is submrtred that the comptainr is nol tenable in the cyes of taw.

The conrplarnant h,rs mhdirected themselves in filing rhe above caprjoned conrplarnr bcrbre the authority as the reliefs being claimed by him cannot be said to fa within the realm oljurisdictjon ofthe authority.

As rhe enadment ofthe Eanning of Unregulated Deposit Schemes Act, 2019, the assured return'and or any commirted returns,,on rhe deposit lichemes h.rre been banned.

The respondents having nor raken regjsrrat on from SEIII Board cannot run, operarc, conrinue nn assurcd return schenrc. .t. henrc. .t.he implicatlons oi enadment of BIJDS Ad read with the Ccmpanies Act, 2013 and Companjes (Acceptance of Deposits) Rutes, 2014, resutted in HARERA GURUGl?A[/ making the assured return/commifted rcrurn and simiLar schemes as unregulated schemes as being wjrhin rhc definjtion ot,,deposir,,. c.

That as per section 3 of rhe BUDS Act, all unregulared deposit schemc has been strictly banned and deposit takers such as bujtders, cannot, directly or indirectly promore, operate, issue any advertisemenr solicitingparticiparion o. enrotment in oracceprdeposit.Thus,section 3 ofthe BUDS Act, makes the assured return schemes. rf rhe huit,l.rs and promote.s, illegal and pun,shabtc under taw Irurther as per rh.

SEBIAct, 1992, collcctive investmcnt schcmcs as dcfined under scctroI 11 AA can only be run and operated by a regist€red per:on. llencc, rhc assured return schemes hav€ become illegalby rhe operarion oftawand the respondent cannot be made ro run a scheme which has become infructuous by law.1r rsalso important to rely upon clause 35 ofthe BIIA dated 27.07.20L1. wh,ch specifica y caters to the siruation where certain provisions of the agre€menr become inop€rable due tu application oflaw.

Thus, the complaint dcserves to bc dismissed at thc very outset, without wasting precious rime ofthis aurhorjty. d.

The complainant has not come beforc rhc authoriry wirh clean hrnds The complaint has been tiled bythem jLrsr to harass the respondcnr rnd to gain the unjust enrichrn.nt.

1t is pertinenr to mention herc rhar ibr the lair adjudication of grievance as alleged by them require detaitcd deliberation by leading thcevidenccand cross-€xaminat on.Thus, onty the civil court has jurisdiction ro deal with the cases required detajlcd evidence for proper and fair adjudication.

Further, it is crystal ctear 5:3r "fMr l ffLIA&ERA S- GURUGRAII 137 ol2021 from readingrhecomptaintthat the complainants are nor.allo$ees,. bur purely invesrors', who are only seeking assur€d return tronr th. . ronr th. .espondent, by way of present petition, which is not raintainabt. as the unit is not meant tor personaluse and rather, it is nernt for earning e.

Thatinvrewofrheiudgmentandorderdaredt6.l0.20lT passedbyth.

Maharashtra RERA Authority in the complaint ritted Mohesh parioni vs.

Mofiarch Soli@tre in, camplaint na: CCOO60OOO0000O7| ol2017, wherein it has been obsewed thar in case where the comptainanr hasinvesred money in the project with sote intenrion oigaining profirs out of the projecr, then rhe comptainants are in the Fosirion ot co promoter and cannot bc tre:red as an.a otree,.1,he authortrv ther.in "hneonsfiot tr,eCanp@nont, hate the.@tu\ot Co- proaotet ol th? p,otett. it ^ eldent tndt the dt\pu@ betue?n the Cohplotnonts ond ne Fetpandent trota ttvt notLte betw.?n the pronoter qnd co.prcnotea and does not petoin n, on! coitdventio4 o[the Reol no@ (Res,lanon ond Dovctopnent) A.t_ 2016- lhe@nplohr ts therelore, dllnised_" complainants could not and beinga co-pronoto. l Thus, in view oftbe aforesaid decision, the ought not have Rled th€ present comptaint f. tn a mattet ot Brhhjeet & Anr. vs.

M/s tandmark Apaftment pvl Ltd. (complaint no.

1a1 of 2o1g), decided on 07.08.201t| the hon,ble Haryana Real Estate Regularory author,ty has taken the same view as observed by Maharasthtra RERA in lvtahesh parianistated that.

9HARERA S-eunuen,cr\r "fhe Lonplonoas hove ode o .naptoht dated t5 | zot| w,th reqa'd to-the teturd otthe o{u.pd,"t u q ot Rs 55 ooa/_ pet 4o4th. ol the ttteao4ndLa ol uhda^Lah.ttlg doted t44.2010. thp Laapbhant: d," ,"t.t,,o inot t" arlr/ tr oo,,ry nat gpt th.o$r.ed etu,4ot R\.S\,1OA.. pet non$ rcteosed ohn.

A pe'6a1oJ the Rcol Laote tR?qutotor & Dcvptop ?4t)A,t,2016 nveatstnota\ p4 thp ^tpnaenrJLh ot Urdet\t.ndns,the n$ukd rc.u.1 6 4ot o to,nol daae w h ,esaru b aiv,ng or tahng ol r:sesto4 ot m to, wn.\ the buver na\ pod on onoLnt (t R,st Lokht to the butlde. rhicn ^ 4ot w htn thp putv;pw ol RtlA A.l Ro.het i D a dqt nafii tntp Rt. i tntp Rt.iM a\t dpo! a h fie \Litd<, b,tet,?tona4-hiptathee,@nr.t tn?tv da^et) olpolp.raa n \ ptotrton, ol 5ptn.n )A fi t ot the r',- t A\.tt 4 the bbye. \ d recLed t o pu e th? note, wth t pgo.d h ge,n! o$u pd rptu, n o\ At t he \4.nuoldLn ul Uadc,\tondno by [,l,ng o \"e helatp oh oppropnote larun/Ad1udtcd ns alJicet any matterrelated toassured reNrns in thesajd orderstated as underl t hot o. olreod\ dp. to?d D, anpht.t n- I 4 I nt zu I r 4, o\\, nodt odt At th. fl4ptinod r4-t tt ptr.on,t.ittt,a.LurL l\t.i otnu r ea,\p, v. na,"o obo,. tt" at,tt,tv.o)n,t oo rLyo,a,t view taken olreotly ]n \rh r/pes af a$rrcd return fhetus. th. outhoriE has natrns(lntion, ossLch thec.nplonants are athbe ! to oppraach theopprapnotelorun to kek rcn.dy,. g.

It is submitted that the assured rcrurn ol Rs.

151.6S/- per sq. tt. was to be payable tillcomptetion otthe building thereaarer committed return was to be paid to the complainanr post complction ofthe buildjng (@ ot Rs.

130/- per sq.ft. oisuper area pcr monrh. up to rhree ycars trom the Thus, the RERA Act,2016 cannot deatwith issues ofassured rerurn rnd hence rhe present comptarnr deserves to be drsmissel ar rhe very 2',7 _71.201A, entertaininS outset.

Further in the matter of Bhorom Singh &Orsvs.

Venetion LDF Proiectr LIP (Complalnt No.

17S of 2018), decided or the Authoriry, curugram upheld its eartier d€cjsion ofnot 5ttt, HARERT\ GURUGRAI!/ date of completion of construction of the commercial unit or t,ll the same is put on lease, whicheveris earlier. circumstances, yet the respondents h:ve complercd the construction work with full vigour reply.

Thc conrplarnt thus, not having: speck ot truth and genujneness ought to be dismissed and heavy cosr be imposed upon the complainant ior wasting th. precious time ofthe authoriry. i.

That the present complaint has bccn liled on the basis of incorrect understanding of the object and reasons of enactment ol the Act 2016.

The legislature in its great wisdom, understanding th€ catalyti. catalyti. role played by the real estate sector in lullilling thc nc.ds and demands lor housing and inirastructure in thc country, and the absencc ol a regulatory body to provide professionalism and standardizatron lo rlrc said sectorand to addr€ss allth€ concerns ofboth buyers and promotcrs in the realestate sector, drafted and notified the Act,2016 aiming to gain a healthy and orderly growth ofthe industry.

The Act har been enacted to balance the interests ofconsumer and promoter by irposing ccrtain respons,bilities on both.

Thus, while sections 11 to section 18 of the RERA Act, 2016 describes and prescribes the tunction a.d duties of the promoter/developer, section 19 provrdes the nghts and dutics ol allottee.

Hence, the Rl:llA Aci,2016 was never intended to be biased legislation preierring the allottce, ralher the intcnt was to ensurc that both theallottee andthedeveloperbekeptatparand eitherolthe party should not be made to suiler due to act or omission ot part ofthe other. h That even though the respondents suffered trom setback Iue to cxtem.rl : HARERA GURUGRAIV 30.

Copiesofall the relevanr documents havc been tited and ptaccd on thc record.

Their authenticity is not in dispure.

Ilence, thc conptainr can bc decided on the basis ofrhese trndisputed documents and su rmission nradc [. lurisdictiorl ofthe authority 3l.

Ihe respondenthas raised pretiminary objcction regardingjurisdiction ot authority ro entertain th. present comptajnr.

Ih€ authorit) obscrves thar it has terrirorial as wctl as subject martcr jurisdiction to adjudicrrc rhc present complaint for rhe r.asons givcn bctow E.

I Territoriat iurisdiction 32.

As per notiaicauon no t/92/20t7-1.tCpdatedt4.12 2017 i:isuedby].ow and Country Plan n ing Depa rtment, Haryana rheju.isdicrion ofReatUstrtc I{egulatory Aurhority, cu.ugram shal be enrire CLrrugram Disrrict tor atl purposewirh offices situated in curugram. curugram. tn the present case, the projecr in question js situated wrthin the ptanninE area of Gurugram District.

Therefore, this authoriry has comptete territoriit jurisdicticn ro deat wirh thc pres€nt complaint.

E.II Sub,ecr-ma rrer iu sdicriotl 33 Section 11(a)(al oi rhe Act, 2016 provides thar rhe responsible to the allorree as per agreement ior sate. reproduced ashereunder: Section 11(4)(al is ae tesponnbte lo. otl obttsotto4s. rcvontb ie\ ond luncnonj u4det thp prot^,an\ ol thi< Ad o, the ,ulps ond .eoutat@r.. nade thereunder ot to the dtlouees os per the ogrceh tlot HARERT, 6URUGRA[/ sole,artothe osociotionofatloueetasthe coy no, be, tilt the convelohce alall theapottnents, plots buildinss, as the case noy be, ro the olhttees, ot the.onnanarcarta theussocto ol oldllottees orthe.ampetentouLha.ny, as the @se tudy be; The prcvabn olosured @ttn\ 6 port olthc britder buyers ogrceneht, os per clor\e 1s olt)E Bu,,t dated Accollingt),, the pranater it respansblc lot ott .bhsotnns/rcspohstbtttues ond lunctinns n.luding toynent of osurcd retuoll os provtdel tn Bunaet Bulet s As rcetnent Sectiot 34.Fun.tions ol the Authority: 344 olthe Act provtd* to ensure cohptiance aJthe abligatians cost upan the pronaters, the ollottees ond Lhe /eot estate oge ts under thlsAct ond the tules ohd regulotnns mode thereunder 34.

So, in view of the provisions of the Act of 2016 quored above, rh. :uthority has complete jurisdict,on to decide rhe comptaint regarding non-compliance of obliSations by lhc pronrorcr leaving asrde compensation which is to bc dccided by the adjudicaring oificer if pursued by the complainantat a later stage.

F, Findings on the obiection raised by th€ respondents.

F.l Obiection regarding entltlement of assured return on ground of .omplainants being lnvcsrors.

35.

The respondent submitted that the complainants are investo. e investo. and nor ronsurner/allottee, thus, the complainants are not ent,tled to the protection of the Act and thus, thc prescnt conplaint is rot maintainable.

36.

The authority observes rhat the Act is cnacted to protecr the interest ol consumers of the real estate sector lt is settled f,rinciple ol interpretation that preamble is an introduction of a statute and states HARERA GI,JRUGRA[4 l main aims and objecrs of enacting a stature bur at rhe sanre rinrc preamble cannot be used to defear rhe enacring provisions oi the Acr Furthermore, it is pertinent to.ote rhat under section 31 ofrhe Afi, any aggrieved person can file a complainr againsr rhe promoter jt th. promoter contravenes or violates any provisions oirhe Act or rutes or regulations made thereunder.

Upon careful pcrusat oiall the terms and conditions olthe buyer's agreement, it js revealed thafthe complainants are an allottee/buyer and rhey have paid rotat price otRs.4277,9SS/. to the promoter towards purchase oi the said unit in the prolecr ot thc promoter.

At this stage, ir is imporranr to stress upon the definition of term allottee under the Act, the same is r€produced betow ior ready '2(d) ottottee'tn rctot@n ta o reot estote praject neonstht) persan to whorn o ptot, oponneht or builtling, os th. .ose nay be, hos been ollottcd, sold (whether o.i fieehold or leasehold) or athetwise t.an,fered b! tht pronoter, ohd includes the pe6an who subsequentu acqunes the eid ottotnent thtouah sok, tronsler ot otheNtse but dacs nat n).htle u pc6on to\|han su.h pbt opattnehta. butldhg,os the tuse n)a! b!, tsltNer an rcnt 37. ln view ol above-mentioned dcfinirion of 'altottee" as we I as a rhr terms and condirions of the buyer's agreement executed bctwedn respondent and complainants, it is crystal clear rhat the complainants are allottees as the subject unit was allotted to them by rho promoter.

The concept oainvestor is not defincd or referred in the Act. n the Act.

As per rhe definition given undersecrion 2 of rhc,^ct, thcre witt be,promotef, and ''allottee" and there cannot be a parry havrng a status of,inyesror,,.'l,he PaBr l8 ur 33 rt& HARERA GURUGl?A[/ 5131of2021 Maharashrra Real Esrate Appellare Tribunat in its crder dared 29-01.2079 in appeat no.0006000000010SS7 titted as N/s srushti Sangom Developers pvt.

Vs.

Sarvopriya Leaslng (p) Lts.Andanr has also held that the concept of rnvcstor is not defined or rcterr.d ,rr the Act.

Thus, rhe contenhon of promoter that the comptainanrs- allottees being invesrors are not entjtlcd to protection otrhisAcr srands G, 38 to delayed possession charyes, assu.ed involved in borh ihe cases.

Findings on the reliefsought by the comptainantsl The common issues w,th regard return and litigation charges are F.l Assured return 39.

The complainanr has soughr assured rcturns on monthty basis as pcr clause 15 at the rate ofRs.1S1.65/ persq.ft. otsuperarea per month tilt the completion oiconstruction of the said building. lt was also agrced as per clause 16 that the developer wjllpay to the buyer Rs.130/ persq.tr. superareaolthesaidcommcrciat unitascommitred return furuptothre. years from rhe date of completion oiconst.udion oithe sajd building or till the said commercial un,t is pur on tease, whichever is earler.

It is pleaded that the respondent has not comptied with the terms and conditions of the agreement.

Though for some time, the amounr oi assured rerurns was paid but tatcr on, rhe respondent relus€d ro pay rhc same by rakinga ptea of rhe Bannjng oiUnresutated Dcposit S.hemes Acr.

2019 [herein alter reierred to as the Act oi 2019).

But rhat Acr does not create a bar for paymenr of assured rerurns even after coming inro HARERA GIJRUGRAIV 5t 3l oll021 operation and rhe payments madc in rhis r.gard are pro:ected as pcr sect,on 2(4)(iii) of the abov€-menrioned Act. ioned Act.

However, the plea ot respondent is otherwise and who rook a stand thar thou€h ir paid rhe amount olassured returns upro the year 2018 but did not pay the same amounr afrer coming into forc€ of rhc Act of 2019 as ir was declarcd r1lesa1.

40.

The Act of 2016 defines ,,agreement ior sate,, means an agrcemenr entered into between rhe promorer dnd ttre a ortce lsect on 2tc)1.

Af agreement for sale js defined as an arrangement entered between rhc promoter and altotree with freewj and consent oiboth the parries.

An agreement deftnes the righrs and Iiabilitjes of both rhe parties r.c., promoter and the allottee and marks rhe start of new contracruat relationship berween them.

This contractual relationship gives rise to future agreements and transactjons berween rhem.

The dife.ent kinds ot payment plans we.e in vogue and lcgat within the me:ning ot rhc agreement ior sale. one oi rhe inrcSral part ot rhrs a8reement is rhc transaction oiassured rerurn ,nler se parties.

The ,,agreenlrnt for sale,, after coming into force of this Acr (i.e., Act of 2016) shall be in rhe prescribed form as per rules but rhis Ac! of 2016 does not .ewrite thc "agreement" entered between promoterand allotree prior to coming into iorce of the Act as hetd by the Hon,ble Eombay Hieh Ccurt in case Neelkamol Realton Suburban private Limited and Anr. v/s Union ol lndia & Ors,, {Wtit Petition No 2737 of20t7l decided on 06.12.2017 Since the agreement defines rhe buyer promorer retat,onship thcrcfore, HARERA GURUGRAI\I it can be said that the agreemenr for assured returns berween the p.omoter and allottee arises our of th. same .etarionship.

Therefore, it can be said that the rcal esrare rcgulatory authoriry has complctc jurisdiction to deal wirh assu.cd return cases as rhe contractuat relationsh,p arise out olagreemenr ior sate only and between rhe sanrc parties as per the provisrons ofscct,on 11(41(al ofrhe Acr c f 2016 whrch provides that the promoter would be responsjble for all the obUgations bUgations under the Act as per the agreement lor sale till the executioD ot conveyance deed ofrhe unit in favour of rhe altotrees.

Noa, three issues arise for consideration as to: Whether authority is within the jurisdiction ro vary its €artier stand regarding assur€d returns duc to changed facts and circumsrances. ii.

Whethertheauthorityiscompetcnrtoallowassu.edfrturns to the allottees in pre-ltL-RA cases, afrer the Act oi20I6 came into operatjon, iii.

Whether the ct of 2019 bars payment oiassured returns ro the allottees jn prc-RERA cases 38.

While taking up the cases ol Brhimieet & Anr.

M/s Londmork Aportments Pvt Ltd. (complaint no 141 ol2018), and Sh.

Bhoron Singh & Anr.

Vs. yenetain LDF Projects LLP' (comptaint no 175 ot 2018)decided on 07.0U.2018and 27.1I 20lU.especrively itw.s hel(l bythe authorityrhatit has nojurisdicrion todeatwirh cases otJs$red I'aBe 2l or 33 HARERA GURUGRA]V rcturns.

Though in rhose cases, thc issue of assured .erurns was involved to be pa,d by the buitder to an altottee butat rharrime. neither the full facts were broughr beto.e rhe authoriry nor u was argued on behalf oi the allottees thar on the basis oi contractual obtigarions, rhe builder js obligated to pay thar amounr.

Itowcver, rhere is nr bar ro take a difierent view from the eartier one it new iacts and lavr' have been brought before an adjudicaring authoriry or rhe court. .the.e is a doctrine ol "prosp.ctive overruting,, and which provjdes lhar the taw declared by rhe court applies to the cases arising in turure onty and r(s applicabiliry to the cases whjch have atlained finatiry is saved because the repeal would otherwise work hardshjp to rhose who had kusred to jts existence.

A reference in this regard can be made to the casc of Sorwan Kumor & Anr ys.

Madan Lat Aegatwat Appeal (civit) 1058 ot 2003 decided on 06.02.2003 and wherein the hon,ble apex court observed:s mentioned above.

So, now the plca raised wirh regard ro maintainabiliry of dre conrptainr in rhc tnce of ea. nce of ea.Uer orCcrs ot rhc authority in nor renable. l he aurhoriry can take a difierenr view {ronl the earlier one on rhe basis of new facts and lavr' and the pronouncements made by the apex court ol the land. tt is now wetl settled preposirion ollaw thar when payment ofassured rerurns is part and parcel ofbuilder buyer's agreemcnr (maybe there is a clause in that document or by way oladdendum, memorandum ot understandi.g or terms and conditions ofthe allormcnt ot.r unirl, then rhc buitdcr is tiablc to pay that amount as agreed upon and cant rake a plea tlat it is not E.pr"., ""1131 *HARERA S- ounuenql,r liable to pay the amount ofassured return.

I4oreover, sale defines the builder-buyer relarionship.

So, ( can agreement lor assured rcturns berw.en the promoter and a orrec arises out oi the same retationship and is nrarked by :he originat agreement for sale.

Thereiorc, rr can be said that th. alrhority has complete jurisdiction wjth respect to assured rerurn cases as the conkactual relarionship arises out of the ag.eement tor srle only arrd between the same contradjng parties ro agre.menr for sale.

In the case in h:nd, the issue of assured rerurns is on the basis of conrracrual obligatjons arlsing between the parrics. .1hcn rn case ot pioneer Urban Lond and Inlrastructure Limited & Anr. v/s Union ol tndta A Ors. (Writ Petition (Civil) No.43 oJ 2019) decided on 09.0A.2019, ir v,)as observed by rbe Hon'ble Apex Courr ofrhe land that,,...a ott€es who hnd entered into "assured rerurn/committed returns aeree renrs with these developers, whereby, upon payment ofa substa ntiat pc rtion ofthe total sale consideration upironr ar the tjme oiexecution oiagreement, the developer underrook ro pay a cerrain amount to a o:tees on a monthly basis from the date olexecution otagreement till the dare ot handjng over ol possession ro the allortees,,. lortees,,. tt was iurther hetd rhar 'amounts rajsed by devclopers undcr assurcd rerurn schemes had thc "commercial effect of a borrowing' which bccame ctear from rlrc developer's annual retu.ns in which the amount raised warj shown as ''commitment cha rges ' u nder the h ead , fina nciat cosrs,,.

As a resuh, such allottees were held to be "financiat credjtors,,within the meaning of 5133, i.;nla,ir no.5l lt,,il ll ofl0tl section 5(7) ofthe Codc, rncludinB irs treatment in books otaccounrs ot the promoter and for the purposcs ot income tax. .then in rhe t.r.sr pronouncement on this aspect in casc.laypee l(enstngton Boutevord Aportments wethre Associotion and ors. vs.

NBCC (tndto) Ltd. and 0r' [24.03.2021-SC]r MANU/ sC/0206 /2021, the same view rvas followed as taken earlier in the case of pioneer Ltrban Lond lnJmstructure Ld &Anr.with regard to rhc a ofte.s of:ssrred retu E to be financialcreditors wtthin the nreining ofscctjon 5{7) ofrheCod. lhen after coming into fbrcc thc Acr ot 2016 w.ci 01.ir5.2017. ttrr builder is obligated to register thc prolect with th. authoriry betnS rn 0ngo,ng project as per provjso to secrion 3(11 oi rhe Act cf 2017 read with rule 2(o) of the Rules, 2017.

The Act of ZO16 has no I rovision tor re-writing ofcontractuatobligarions bctween the parties as held by the Hon'ble Bombay High Court in casc Neetkomat Realtors Suburbon Private Limited ond Anr. v/s Union ofrndia & Ors., (supnt) as quored earlier.

So, the respondenrs/builders canl t:k. a pler rhat rhcre was no contractual obligarion to pay the amounr ot assured rerurns ro thc allottee after the Act of2016 camc inro force or that a new agreemenl ii being executed wirh regard ro rhar fact.

When rhere js an obtigation of the promoter against an atlottce ro pay the amounrotassured returns, then he cant wrjggle our trom rhat siruatron by taking a plea ot th. enfo. th. enfo.cement ofAct ot 2016, IIUDS Act 2019 or any other ta!r' 39 It is pleaded on behallofrespondent/buitdcr rhar after rhe Banning ol llnregulated Deposir Schemes Acr of 2019 came Lnto force. there is bnr l]ARE&A GI]RUGRAIV Conplainr no 5133, !i131 of 202r for paymenr ofassured .etu.ns ro an alottee. llut agarn, the ptea raken in th,s regard is devoid oi m€rit.

Secrion 2[4) or rh. above mentioned Actdefinestheword,dcposit as on omaunt oJnoney recei.ed bv ||or ol on odvelnce or laon ar in an! ather forn, bf.tny depostt taker wtth o pronise to return whether at'tero specilied period ot otherwise. eirh.r in cash or in kind or in rhe fo.m ota specifred service, ry ith or wthout anr beneltin the form olinterest, banus, proJi or in ony other forn, but tjoes or oqnunt rec.Ned i thc t aur\a nl ut t.)rrn, putpo,Lot DU5tncs\ oFd bportng o qpnunp r\e\t .4 to LtLt, business including- advance received in connecLion with considerotion ot oh Ftmovoble prnperD und on o Anert ot orrotoenpn subject to the coneltian that such odvance is adlusteLt against such innovoble propcrg, as specied in terms oi thP agrcPnenr or attonapnenl 40.

Aperusaloatheabove m.nrioneddefi njtion of theterm,deposit,shows that it has been given rhe same meaning as assjgned to it under the Companies Act, 2013 and the same provides under secrion 2(311 includes any receipt by way otdeposit or toan or in any other torm by il company bur docs not inctudc such c.rrcSorics of nmount ls nay tr. prescribed in consuttarion with rh. ttcs$vc llank o ndia Silnitarty ru c 2[c) ofthe Compan,es (Acceptancc of Deposits) Rutcs, 2014 defines the meaning of deposit whjch inctudcs any receipr of money by way ot deposit or loan or in any other form by a company bur does rot inctude. ttHARERA dh eunuennv HARERA GURUGRAN/ asa advonce, occountedfor in received in connection with Complaint no 5133, Ii131 of 202r l ony monner who tsoever, considefttion lor on ti. os on. ti. os on.advonce rec?ived ond os attawed by ony sectorlt rcgulator or in accordonce with directions ofCentrolar St(!te Gavernnen, 41.

So, keeping in vjcw the above-mentioncd provrsrons ofrhcAcr of20t9 and the Companies Act 2013, it is to be sccn as to wherher an a ottee rs entitied to assured rctu.rrs in a case where he has deposired substantirl amount of sate consjderation agaiffr thc a otment oi a unit with rhc builder at the time ofbooking or immediately thereafter and as agreed upon between them.

42.

The Covernmenr of India .nacrcd thc Banning oa Unregula:ed Deposit Schemes Act, 2019 to provide tor a comprehensive mechanjsm to hirn the unregulated deposit schemes. orher than deposirs taken rn ihc ordrnary course ofbusrness and ositorsand lor marters connected therewirh or incidentat thereto as defincd in section 2 (4) otthe BUDSAct 2019 mentioned above.

43 It is evident from the perusat of section 2(4)tl)iji) of rhe above_ mentioned Act rhar rhe advances received in connection wrth conside.ar,on of an jmmovable property under an agreem€nt or arrangement sxbject to rhe condirion rhat such advances are adjusted against such immovable property as speciticd in terms ofrhe rgreenrent 0rarrangement do nor lallwjthtn rhc term ofdeposit, which have been banned by the Act of 2019.

HARERA GURUGRAII 44.

Moreover rhe devetoper is also bound by promrssory esk,ppel.

As per thjs dodrine, the view is that ifany person has made a prornise and rh. promisee has acted on such promrse and atrercd his position, rhen rhc person/promjsor is bound ro complywith his orherpromi:re.

When rhc builders faited ro honour their conlmitmenN, a number ol.cases w.re liled by rhe credirors at.lifferent torums such as l/ik hit Mehto, pioneer Urban Land and hlrastructure wfiich utrimately ted rhe cenrral government ro enacr the ltanning ot Unregulated Deposit Scheme Act, 2019 on 31.07.2019 jn pursuanr to rhe BanninS oiUnregulared Deposit Scheme Ordinance, 2018. nce, 2018.

However, the moor question to br decidcd is as towhetherthe schemes floated earticr byrhebuitders and promrsinB as assu.ed rerurns on rhe basis oia otmcnr ot units are covered by ttrr abovementioned Act or not.

A simitar issue ior considerrtion arosc before Hon'ble RERA panchkuta in case Boktev Cautam VS Rise Projects Private Limited (REM.pKt..2068-201g) where in it was hctd on 11.03.2020 that a builder is liable to pay monthlyassured returns to the complainants till possession of respective apartments stands handed over and there is no illcgality in this regard.

45 The definirion olterm deposif as givcn jn the BTJDS Act 2019. has rhr same meaning as assigned ro it under rhe Companies Act 2013, as per section 2(41(ivl{r) i.e, exptanation ro suh-ctause [iv). rn pursuant to powers conterred by clause 31 otsection 2, section 73 and 7(; read iv h sub-section 1 and 2 olsecrion 469 oirhe Companies Acr 2013. the Rutes with regard to acceptance otdeposits by rhe companies wer€,framed in HARERA GURUGRAIvI the year 2014 and rhe same cam. into force on 01.04.2014. .the definition of deposjt has been given under section 2 (c) cf the above mentioned Rules and as per ctause xii tb), as advance, accounted for in any manner whatsoever received in connecrion wirh conslderation tor an immovable propefy under an agrcenrent or arrangemenr, prov]ded such advance is adjusted against such property in accordance wirh rhc terms oiagreement orarrangemsnt shal nor bc n deposjt.

Though rhe.c is proviso to this provisjon as wel as ro the amounrs reccived under heading'a'and'd'and theamount becoming refundabtewith orwithout interest due to the reasons thatthecompany acceprjngthe money does not have necessary permissjon or approval whenever req!ired ro deal in the goods or properties o. services for wh ich th e money i: taken, then the amount received shall be deemed to be a dcposit under these rutes how€ver, the same are not appticabte in the case in hand..t. n hand..t.hough ir js contended thatrhere is no necessary permission orapprovatro takc the sale considerarion as advance and would be considered as d€posit as per sub-clause 2().a)(b) bur rhe plea advanced in this regard is devo,d of merit.

First ofall, there is exclusion ctause ro section Z tj(i,4(b) which provides that unless specificatty exclu d cd unde. this ctause.

Eartier. thc deposits received by rhe companics or rhe builders as ad,/ance were considered as deposits but w.e.t 29.06.2016, it was provided thar thc money received as such woutd not be dcposit unless specifica y excluded under this clause.

A rcference jn rhts rcgard may be gjven ro HARERA GURUGRAIU clause 2 of the First schedute of Regulared Deposit Sch€mes iranred under section 2 (xv] ofthe Act of z0t 9 which provjdes as under:- (2) The lalta hs shall otso be treoted os t?esulotetl Depo:n Schehes utuler this Actnahel!i (a) depasits occepte.t und;r onr schene, regi.te,od, h onr,"oulrtr1 ba ty n tFJto - oFrr.rcd,, estdblished underastatutc: a l (b) ony oth* schctue as noy be rotiled b! the t:ehtrcl cove tu ne n t u n d er th is Act.

46.

The money was raken by rhe builder as deposir in advance againsr allotment ol immovable property and its possession was ro be oftered within a certain period.

Howevcr, in view oiraking sale consideration by way ofadvance, the buitder promiscd ccrrain amount by way oiassured returns for a certain period. so, on his iajture ro fullii rhar cDmmitmcnt. the allottee has a right to approach the authority Ior redressat of hrs grievances by way offiling a comptainr.

47.

It h not dispured that the respondent is a real estate developer, and it had nor obtained registration under the ,/\ct ol20l6 ior rhe project in qL'estion.

However, the proied in which the advance has b€en receive. n receive.l by the developer from rhe atlotrees is an ongoing project as per secrion 3 [1] of the Act o12016 rnd, rhe sanrc woutd ta wirhin the Jurisdictjon ofthe authority for giving the dcsjred rctieito rhe conrptainanrs besdes initiating penal proceed ings.

So, thc amount paid by the complainants to the builder is a regulated depos( acccpred by rhe later from the former against the immovable property to bc translerred to rhe a lotree later !;131 *HARERA S- eunLrcnnlr li131of 2071 48.

On consideration of documents avaitabte on record and submissions made by the paroes, the assured return of Rs.

1S1.65l_ per square |eet permonth is to be paid tiltrhe construction ofrhe said corrmerciatunit is complete.

The respondenr has obtained rhe occupation cerriticate on 06.09.2021.

Arcordingly, rhe promoter is Iiable ro pay assured returrr of the unpaid period i.e., Octobcr 2018 tiI Scpt.nrbcr 2021 ;t tho r.r.

01 Rs.

151.65/ per sq.ft. per month of the supff arca.

49.

The due date of possession is 31.05.2020.

Keeping in view the lact rhat OC has been obtained on 06.09.2021, the promorer is lable ro pay assured return @151.65/-per sq. feet. otrhe super area tillSeptenrber 2027.

50.

Thecounsel fortherespondents submrtted rhatassured return has been paid uptil September 2018, rhe assured r.rurn rhereafter be pajd ls 51.

It is further provided under clausc 16 of rhc buycr,s agr.emenl that developer would also pay to the buyer Rs.

130/ par sq.tt. per month ot super area ol the allotted unir as commirred return upto three years kom the dare of completjon oathe const.ucnon ofthe said bu,tding or the said unit is put on lease whicheve. is eartier..the buyerwould srarl .eceiving lease rentatin respecr ofrhe said unit in acco.dance with teas. document as may be execured with prospecrive tenant. ve tenant. ti there is any rent-free period on accounr ofiir out or orherwise, then rhe buycr shdll not be entitled lor rent during the samc So, in vicw otthat agreemcnt between the parties, thc develop€rs arc also under an obtjg tion ro pay HARERA GURUGRAI\I to the allottee commi$ed return (d130/- per sq tr. per monr:h for 3 years lrom the date ofcompletion of rh..onstruction olbujtding or the unit is put on lease whichever rs earlier.

F.U Direct th€ respondenrs to refrain from canc€Iine the builder buyeragre€ment/carce ation of the untt of th€ compl.inant.

52.

The complainant atteBed thar in 2019, rhe respondents pressured the complainant ro sign a fresh BBA wherein omirting the ctau:e ofassur.d return, but she has refused to sign the samc.

53.

Upon perusal of documents on record, it was observed rhat rhc complainant has not signed rhe addendum agrecnrenr (t esh agreementl and rhesamc is evidcnr tronr pagc no l35otrhecomptajnr 1t is pertjnent to nore tharanyaddendum agreement can be regarded as an addit,on ro the orjginat agreenenr but not an insrrumenr to altcr rhc substantive parr olrhe originat agrecment.

The promoter- builder has misused its domjnanr positjon and trjed to rake advanrage olinnocenr allonee(sl after taking 100% of the totat sale consideration.

Such practice is notacceptabte.

Ihe originalagreemenr hotds irs,,,atidjty, and the respondenr rs directed to not to forcc any tresh agreemrnt over thc F.llI Litigation cost 54.

The complainant is also seeking rctjei w.r.t. litigation rxpenses & c0mpensation.

Hon'ble Supremc Court oflndia in civit appe:t nos.

674S 6?

49 of 2021 tit:ted as M /s Newtech ptomoters and Develope$ pyt Ltd ve$us Stote olU.P. ond Ors,202t.Zo22(1) RCR (C) 357 has hetd that til rl an allottee is enr,tled ro claim compensation & litigat,on charges under sections 12,14,18 and secrion 19 which is to be deci. o be deci.led by the adjud,cating omcer as per sectron 7t and the quantum ofcompensation & litigation expense sha beadjudged by the adjudicarinsomcerhaving due regard to the tacrors menrioned in section 72.

The adjudicatiDg officer has exclusive ju.isdiction ro denl wrth the conrptainrs in rcspect oi compensation & tegat expenses.

Thcretore, rhe comptainanrs amay approach the adjudicaring officer for seeking thc retief ol titigation G.

Dircctions ofthe authority 55.

Ilence, the authority hereby passes this order.nd jssues rhe *HARERA dh eunuennv directions under section 37 of rhe Act ro ensure compliance ot obligations cast upon the promoteras perthe function entrusted to the authorjty under section :J4(0: i.

The respondent js directed ro pay rhe arrea.s ofamount ofassurcd return amount from September 20i8 tjltseptenrber 2021 as per clause 15 of the buycr,s rg.eement.

Further, the respondent/ builderwould also be tiable ro pay monthly tease rentaliat agrced rate ofthe super area up ro 3 years or rill the unit is put on lease whicheveris earlier. ii.

The respondent is atso direcred to pay rhc ourstanding accrueij assured return amounr rilt date ar rhc agreed rate within 90 days irom the date ofo.der afier adjusrnienr oiourstandine d res, rf any.

Pdgc 12 ot33 PHARERA *eunuemll from rhe complainan(sl and railing whrch rhat amounr wout.l be payable with interesr @8.3S91j p..r. ti rhe date oiactuat reajizarion iii.

The respondent sha norcharge anythins rrom rhe corptainan(sl which is not the part ofrhe agrecmenr oisate.

56 This decision shal Drror6 nrtorda appty to cases menrioned th 51.

Complaints stand disposed ol True certified copy ot this order shall be placed in the case fite of each mattcr There sha be separate decree in individual cases. files beconsigned to regrsrry tjte be consigned ro rhe regrsrry. ",i^)aafi, HaryanaReal Estate RegulatoryAurhority,Gurug.am 02_12.2022 58. ] complainr no.

5133, 5131 of 2021