VIKAS GOYAT AND SARITA GOYAT vs TULIP INFRATECH PVT. LTD.

Complaint No.

6439 of 2022 BEFORE THE HARYANA REAI ESTATE REGULATORY AUTHORITY, GURUGRAM ffi ,{Hk tcitlli*/ rwia vlil IJ i7 ABEB& Ul?UGRAM Complaint no.: Date of filing: Order pronounced on: l.Vikas Goyat 2.Sarita Goyat Both R/oz-A7 -703, Tulip Voilet, Sector 69, Gurugranl, Haryana Versus l.Tulip Infratech Pvt.

Ltd.

Regd.

Office at=- 1,201"-1.20 4, Indraparkash Building, 21-Barakhamba road, New Delhi- 1 10001 2.Brahm Parkash R/o:- Tyagi Street, V.P.O Badshapur, Gurugram, Haryana- 12'2001, 3.M/s Apple Facility Services Pvt.

Office at:- 1204, Indraparkash Building,2l-- Barakhamber road, New De'lhi- 1 1000 1 CORAM: Shri Vijay Kumar Goyal APPEARANCE: Shri Sukhbir Yadav (AdvocateJ Shri Sudesh Ranjan Singh fAdvocate] None 6439 of 2022 t4.L0.2022 29.02,.2024 Complainants Respondents Member Complainant Respondentno.l&3 Respondent no.

2 ORDER 1.

This complaint has been filed by the complainant/allottees under section 3l of the Real [istate (Regulation and Development) Act,2016 (in short, the Act) read with rule 2B of the I-laryana Real Estate (Regulation and Development) Rules, 2017 (in short, the Rules) for violation of section 11,(4)(a) of the Act Page 1 of 10 ffiHARERi', W- GURUGRAM Complaint No.

6439 of 2022 wherein it is inter a/ia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provision of the Act or the Rules and regulations made thereunder or to the allottees as per the agreement for sale executed inter se.

A.

Unit and proiect related details.

2.

The particulars of unit details, sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: S.

No.

Particulars Details 1.

Proiect name and location "Tulip' Violet, Sector-69-70, Gurugram 2.

Proiect area 25;44 acres 3.

Nature of the proiect Residential group colony 4.

DTCP license no. and validity status 78 of 201,0 dated 15.10. ted 15.10.2010 valid upto 1,4.10.2025 5.

Name of licensee Amit andT others 6.

RERA registration details Registered Vide registration no.

36 of 201,8 daterl 18.12.2A18 valid up to 31,.1,2.2020 7.

Unit no.

703,7th floor, tower-A7 fpage 62 of complaintJ B.

Unit area admeasuring 201,0 sq. ft. (super area) fpage 62 of complaint) 9.

Date of execution of agreement 31,.01.2022 fpage 56 of complaint) 10.

Possession clause t0 (a) Schedule for possession of the said apartment. fhe go,;nsgr:uction af the said building/said apartrnent Is completed, ond the landowners/vendor has already applied for occupation certificate.

The landowner/vendor will offer the physical possession of the said apartmentwithin 30 daysfrom the obtoining the 0C from concerned authority. fpage 65 of complaintJ _ 11.

Basic sale consideration Rs.85,00,000/- fas per BBA pase 62 of reply) 12.

Amount paid by the complainant Rs.85,00,000/- (as alleged by complainant page 14 of complaint) Page2 of 10 ffiHARER,+ ffi- eunuennrv Complaint No.

6439 of 2022 13.

Letter for allotment of subject unit by respondent no.2 to respondentno.1 08.04.201,9 (submitted by complainants with written arguments) 1,4.

Possession letter t8.02.2022 fuqee 77 of complaint) 15.

Conveyance deed 18.02.2022 [page 42 of complaintJ 16.

Maintenance agreement 10.02.2022 fpage 79 of complaint) B.

Facts of the complaint.

3, The complainants have made the following submissions: - I.

That an agreement to sell was executed bet'uveen the [collaboratorf authorised vendor) Mr, Brahm Parkash and the complainants vide datecl L2.1,2.2021 for 4BHK, trlat no.

A7 /703 admeasuring L210 sq. ft. in Tulip Voilet, Sector 69, Gurugram, Haryana where it w:rs clearly mentioned ancl agreed by the parties that the total sale consideration was Rs.85,00,000/- inclusive of 1 covered car parking, 1 open car parking, GST, IFMS flnterest Free Maintenance SecurityJ, Electricity Maintenance Charges, External Development Charges, Internal Development Charges, VAT etc. , VAT etc.

The complainants paid Rs.3,00,000/- on the same day.

II.

That the conveyance deed was executed by M/s Tulip Infratech Pvt.

Ltd. ancl Mr.

Brahm Parkash in favour of complainants vide registration of conveyance deed no.

12702 dated 18J2.2022.

All the payments amountin6; to Rs.85,00,000/- of the total sale consideration was paid by the complainants as per ther demand by the respondents.

IIL Further, the respondents demanded an amount of Rs.1,50,000/- in the name of IFMS charges.

The complainants wrote several emails datecl 07.02.2022, 12.02.2022, 09.03.2022, 1,1,.03.20221,7.04.2022, 20.06.2022, 31..07.2022 and 06.09.2022 raising objections regarding IFMS demancl raised, No dues certificate, account statement and car parking.

The complainants' parents being senior citizens suffering from severe diseases Page 3 of 10 ffiHARER,q ffi" GURUcRAM Complaint No.

6439 of 2022 are facing difficulties to walk for car parking in another tower f tower basement.

IV.

That 9 car parking slots are free and lying vacant in the basement in subject unit tower i.e.

A7.

The slots have been reserved for tower Bl-1 flats.

But, builder/collaborator has not sold any flat from tower 811 so far.

Further, there are 16 open car prarking slots in front of Tower A7, which have been reserved for Tower A5/A6 flats.

The tower 46 flats are not sold b:r builder/collaborator and the parking slots are lying vacant.

V.

That all the requests merde by the complainants went in vain and there were no positive reply ?nrC solutions offered by the respondent[s), Thr: complainilnts left with no option approached the Authority Gurugram, seeking justice as per RERA Act,20t"6 and Rule s 2017 .

C.

Relief sought by the complainants: 4.

The complainant has sought following relief(s): i, To revoke or cancellation of demand of IFMS Charges amount Rs.

1,50,000/- from conveyance deed. ii.

Direct the respondent[sJ for issuing a No Dues Certificate. iii. cate. iii.

Instruct the respondent for allotment of covered/basement car parking's in the same tower in r,rrhich unit is allotted to the complainants.

D.

Reply by the respondent.

5.

The responclent contesteclthe complaint on the following grounds: - a.

That the complainants entered into a buyer agreelnent with the respondent no.2 on 31.01.2021 whLerein the respondent no.

1 was only the confirming party and post execution of the said agreement the subject unit had beer:r allotted to the complainants subject to the performance of the obligations obligated upon them.

It has specifically been appended therein that the consideration of unit shall not include IFMS and other incidental charges which includes but not limited to payment towards stamp dutie:;, registration charges etc.

The clause L sub-clause 1.1 to 1.13 duly set out the terms ancl conditions of the payment, tax and other ancillary charges whicLr bind the complainants with respect to said transaction.

Page 4 of 10 ffiHARERA ."-e*. gufiugnnrrlr Complaint No.

6439 of 2022 p V b.

That the conveyance deled was executed between the respondent no.

1 & 3 in favour of complainants, every aspect has been made crystal clear therein that the price of the unit doesn't include Interest Free Maintenance Security flFMS), other related, incidental and/or contingent charges etc.

The parie 2(c) of the conveyance deed states: "That the above price of the flat does not include membership fee for the re-creational club/gym, poyment towards lnterest Free Maintenance Security (IFMS), Stamp Duty and other incidental or allied charge payable towards the execution of Conveyance Deed, proportionate charge towards instruments/security deposits required for pipe gos supply (if provided), taxes, GST & or VAT (as applic:able) and/or any other impositions or levies any Govt. or local Authorities and Agencies from time to time and all other charges or levies not specifically defined in the terms of the egreement but levied or imposed by an. sed by an.v authority under any relevant Rules, Act or Notiftcation etc. as per its proportionate impctsition thereupan" c.

That the complainants are under an obligation to make payment at towards 'lnterest Free Maintenance Security' flFMS) which shall be separately maintained by respondent no.3.

The IFMS is not a part of sale consideration of the unit.

The amount of IFMS has to be charged in addition to thr: consideration of the unit along with other charges as defined and revealed therein the transactional documents signed and executed by thr: complainants.

However, herein the IFMS has neither been charged b,yz respondent no.1 nor by respondent no.

3 at any point of time.

As a tradr: practice, if any such charges have been charged from the allotteefs), ;a separate receipt depicting the receipt of such charges will be issued to the concerned.

If any such documentary proof is in the possession of th,: complain;rnts, they are supposed to adduce the same to corroborate their version fcrr all intent and purposes.

6.

The present complaint was filed on L4.10.2022 in the Authority.

On 14.02.2023 the respondent no.2 was directed to file the reply within 2 weeks in the registry of the Authority.

However, despite specific directions and roviding an opportunity of being heard, no written reply has been filed by Page 5 of 10 ffiHARER,q W- cl:RUcRAM Complaint No.

6439 of 2022 the responclent no.Z.

Thrus, keeping in view the opportunity given to the respondent, the respondernt failed to file the reply in the registry.

Thereforer, in view of order dated 2",7.07.2023, the defence of the respondent no.2 was struck off.

E.

Written submissions by the complainants.

7.'fhe complainants have filed the written submission on 26.1,0.2023 and madr: following submissions: i.

That the maintenance agreement was executed between the M/s Apph: Iracility Services Pvt.

Ltd. and complainants on 1,0.02.2022.

0.02.2022.

Tht: complainants were asked to asked to execute the maintenance agreement wherein clause no.4 of the agreement categorically stated: "ln )rder to secure timely payment and due performance, by the Buyers) if its obligati'cns, under this ag,vsgrnent, the Buyers) has deposited with the maintenance Company o sum of Rs.

1-,00,000/- (Rs. )ne Lac )nly) for 2 BHK, Rs.

L,00,000/- (Rs. )ne Lac )nly) for 3 BHK Rs.

L,50,000/- (Rs. )ne Lac Fifgt Thousand only) for 4 BHK" ii.

The complainants were assured that the IFMS charges are already by thenr to respondent no.3. iii.

However, when the respondent no.3 was asked to execute the sairl agreement, the respondent no.3 overwrite the IFMS charges with use of blue pen and wrote'IFMS NIL' and provided same to the complainants.

B.

All other averments made in the complaint were denied in toto.

9.

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

Their authenticity is not iin dispute.

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

F. jurisdiction of the Authority: 10.

The authority has complete territorial and subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

F.l Territorial f urisdiction: Page 6 of 10 ffiH ffin *qiq uqi V URUGRAM Complaint No.

6439 of 2022 ARERit 11.As per notification no.

1.,192/2017-ITCP dated 14.12.2017 issued by Town and Country Planning De,partment, the jurisdiction of Real Estate Regulatory Authority, Ciurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

In the present case, the project in question is situated within the planning area of Gurugram District.

Therefore, this authority has complete territorial jurisdiction to deal with the present complaint.

F.II Subiect-matter f urisdi ction: 12.Section 11(a)(a) of the Act, 2016 provides that the promoter shall be responsible to the allottr:e as per agreement for sale. for sale.

Section 11(4)[a) is reproduced as hereunder: Section 11ft)(a) Be responsible for all obligations, responsibilities and functions under the provis'ions of this Act or the rules and regulations made thereunder or to the allottees as per the agreement for sale, or to the association of allottees, as the case may be, till the cctnveyance of all the apartments, plots or buildings, as the case may be, to the allottees, or the common areas to the association of allottees or the competent authority, as the case may be; Section 34-Functions of the Authority: 3a(fl of the Act provitles to ensure compliance of the obligations cast upon the promoters, the allottees and the real estate agents under this Act and the rules and reg u lcr ti ons m a d e th e reu nd er.

13.

So, in view of the provisions of the Act quoted above, the authority ha:s complete jurisdiction to decide the complaint regarding non-compliance of obligations by the promoter leaving aside compensation which is to bt: decided by the adjudicating officer if pursued by the complainant at a later stage.

G.

Findings on the relief sought by the complainants.

G.l.

Direct the respondent to revoke or cancellation of demand of IFMS charges amount Rs.1,50,000/- from conveyance deed.

G.lI Direct the respondent to issue no dues certificate.

14.The above-tnentioned relliefs sought by the complainants are being taken together as the findings in one relief will definitely affect the result of the other relief and the same being interconnected.

Page 7 of 10 M ffiH #,-e,UI?UGRAM Complaint No.

6439 of 2022 ARTRI; 15' I'he facts pre'sented in thir; case reveals that the respondent no.

Z (Mr.

Brahm Parkash) entered into an agreement to sell date,d L2.1Z.ZOZ1 with ther complainants for the sale of a 4BHK flat unit no.

A7/703 admeasuring 121Ct sq. ft..

As per the terms of the agreement to sell, the total sale consideration for the unit was Rs. it was Rs.85,00,000/-, which included charges for IFMS flnterest Freer Maintenance Security) and other charges.

The relevant portion of ther agreement tr: sell is extracted below: "WI-IEREAS THE VE,NDOR has agreed to transfer all his rights and interest in the said property and the VENDEE has agreed to purchase the same for a total sale consideration of R5,85,00,000/-(Rupees Eighty Five Lacs only).

Inclusive of 7 covered car parking & I open car parking, 'GST, IFMS (lnterest Free Maintenance Security), Electricity Maintenance Charges, External Ltevelopment Charges, Internal Development Charges, VAT etc." 16.

Prior to the agreement to sell, the respondent no.

1 (M/s Tulip Infratech Pvt, Ltd,) issued a letter dated 08.04.2019 to the respondent no.2, wherein it was clearly staterl that before handing over possession of the flat, the respondent no.2 shall have to pay the IFMS and other charges.

This indicates that the respondent no.

2 was contractually obligated to pay the IFMS charges to the respondent no.

1, befone completing the sale transaction with the complainants.

The relevant part of the abovesaid letter is extracted below: 1. "Before handing over the possession of the Jlot, you shall enter into flat buyer agreement with the company and shall have to pay GST/VAT, Elec:tricity Connectictn Charges, lnterest Free Maintenence Security Deposit (lFIt4S) and maintenqnce charges etc " 17.

However, the respondent no.Z has failed to put in appearance during proceedings and provide any documentary evidence to show that the IFMS charges have, in fact, been paid by the respondent no.2 to the respondent no.

1.

This lack of evidence is further compounded by the complainants' allegations that they have made several requests through emails, dated 07.02.2022, 12.02.2022, A9.03.2022, 1.1,.03.2022, '1.7.04.2022, 20.06.2022, 31..07.2022, and 06.09.2022, to the respondent no.1, raising objections regarding the IFMS charges being paid to respondent no. ondent no.3 by the respondent Page B of 10 ffiHARERs, ffi" euiiuenAM Complaint No.

6439 of 2022 no.2 and seeking a "No Dues Certificate" and account statement, but have received no positive resp(lnse, 18.

A, burden of proof lies on the respondent no.2 to demonstrate that the IFMS charges have been paid to the respondent no.

1, as per the terms of the allotment letter and the agreement to sell.

In the absence of such evidence, it is clear that the respondent no.

2 has failed to fulfil his contractual obligation to pay the IFMS chargers to the respondent no.

1 before handing over possession of the unit to the complainants.

19.

Therefore, the respondent no.2 (Mr.

Brahm Parkash) is required to pay the IFMS charges to the respondent no.

1 (M/s Tulip Infratech Pvt.

Ltd.J within a period of 30 days from the date of this order.

Upon receipt of the IFMS charges from the relspondent no" 2, the respondent no.

1 shall be responsible for passing on the IFMS charges to the respondent no.3.

Further, the respondents shallprovide the complainants revised account statement within 30 days from the date of this order.

G.lll.lnstruct the respondent for allotment of covered/basement car parking's in the same tower in which unit is allotted to the complainants.

20.'l'he complainants have raised concerns regardingthe allocation of car parking slots, stating that there are 9 free and vacant car parking slots in the basement of the subject unit tower (A7J that have been reserved for the flats of tower 811-, even ttrough the units in tower 8L1 have not been sold yet.

There are also 16 open car parking slots in front of tower A7 that have been reserved for the flats of towers AS /A6, where the units have not been sold.

This allocation of car parking slots raises concerns about the accessibility of the parking facilities for the complainants.

21. nants.

21.

The Authority, after carefully considering the submissions presented by the parties, fincls that the complainants have failed to substantiate their claims with any documentary elvidence or established agreements regarding the allocation of car parking slots.

In the absence of such material proof, the v Page 9 of 10 ffiHARERI\ ffi- ct,lRt;cttAM Complaint No.

6439 of ZO22 Authority is unable to ascertain the legitimacy of the complainants' concerns about the claimed difficulties for the parking facilities.

Furthermore, th,: Authority otlserves that, in the absence of any binding contractual obligations;, the respondent appears to have exercised its discretion in the management and distribution of the parking slots, which falls within the scope of tht: respondent's right.

Hence,, the Authority cannot accede with the above sought relief in absence of any agreed terms between the parties.

H.

Directions of the authority ZZ.Henc9 the authority hereby passes this order and issues the following directions under section 37 ofthe Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority under section 34(f.l: i.

The respondents arrg IFMS from the complainants and to issue fresh aecount statement to the complainants for the subject unit, the complainants which ii.

The respondent shall not charge anythir is not the part of the buyer's agreement.

Complaint stands disposed of.

23.

24.

File be consigned to registry.

Dated: 29.O2.2O24 \l - z) ,__!t __ ?- lVijay Kuffiar Goyal) Member Haryana Real Estate Regulatory Authority, Gurugram Page 10 of 10