DR SUMAN YADAV AND DR HARISH YADAV vs VATIKA LTD

*HARERA S,ounGnnvr .umplJrnrno ll20 or 20ll & l uther s BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM OrderproDouDced on: 30.05.2023 cA/4220/2022 cR/4s33/ron Dr.

Sufran Yad.v& Ha shyad;v ! v7"v,tin r-i,nr"a Seema6oyal&NnmatCoyat sunanda Roy Choud[trry & A]i] Ro] Choudh3ryV/s rrnkr r,n hl COR TI: sh.i.

Sanjeev (umar Arora 5h V ay KumJrcoyal Membd l. ?

ORDER This orderseeks to disposeofali theth.ee complainrs tittedas above filed before the authoriry Lrnder section 31 oi the Real Estate (Regulation and Development) Act, 2016 thereinafter reterred as ,the Act"l read with rule 28 ofthe Haryana Reat Esrate (Regularion and DevelopmentJ Rules, 2017 (he.einafter referred as .'the rutes,,l for violation of sectjon 11[a)(a] of the Act wherein it is ,nter alia prescribed that the promore. shatl be responsible for aU its obUgations, respoDsibilties and functions ro rhe alloftees as per the agreement iorsale executed interse berween the parties.

The core issues emanating from them are simitar in nature and the complainant(sl in the above referred marters are allottees ot rhe I Mr.a ch"h, I Ms AnkurBerv THARERA S oLrnuenlr,r Complarnt no 4220or1022 & I uthers project, namely, India Next Cty Centre (commerciat complex) being developed by the same respondenr/promoter i.e., Vatika Lrd.

The terms and cond,t,ons of the builder buyer,s agreemenrs, f,ulcrum of the issues ,nvolved ,n thesecases pertainsto fajlure on rhe partofthe promoter to deliver t,mely possession of rhe unirs ,n quesrion, seeking award of delayed possession charges, assured return and litigation charges.

3.

The details of the complaints, reply status, un it no., date ot agreemenf assured return clause, assured r€turn rate, possess,on clause, due date of possession, total sale consideration, a m o unt pa id u p, and retiet soughtare given in the rablebelow: Project:vatikalNxTCityCenrre,Se.torS3,Vatikarndi.

Ne*t,c,.ug.an, ltR 122012 Assured r€tu.n clause in comptaint bearidg no. earidg no.4220 of zozz,4SBt ot 2022 & 45AA ol 2022.

ANNEXUREA Addendum to the agreement The unrt has bee. aLlotted royou wirh an assured monlhty renrm or Rs 65/ per sq n Holvcv.r{lunngthecourseof.onstru.tjonrillsuchrimerhcburtdioErnwbr.hv.urunir .''..

Lrpo olle.

J rorpose..'on\. u$ t. h"pd ddn .

J' o., -cr'.1o.

H.,,, .

I, sq.ft.

Therefore,your.eturn payable ro you shaltbe as foltows: Thisaddendum fo.msan inregralpartolbuilderbuyerAgreem€nt A) Tilloifer ofpossession: Rs.7L.5O per sq.ft.

B) Aiter Completion ofthe butlding: Rs.65/- per sq_it You would be paid an assured return oo a monthly basis berore the 1Sh oi each The obligation ofthe developer shall b€ ro l€ase rhe premises otwhich you. nat N part @Rs.65l- pe.sq.ft lntheeventualirythe achieled return beinA hiAher ortowerthan Rs 65/- per sq.ft, the followinswould beapDlicable.

1. lfthe rentalislesthan Rs.6sl- persq.ft. rhanyou shaltbe.efunded @Rs.117l per sq.ft. (Rupees one hundred seventeen onlyl for every Rs.1/. bywhich a.hieved rentat is less than Rs.65/ pe.sq.ft.

2.

Iftheachiev€d rentalis hrshe.than Rs.65/- persq.tr rhao SO0,6ofihe inoeased.entaL shall accrue to you free otany addftional sate consid€rario!

Howeve., you wiltbe requested to pay additional sale consideration @Rs.

117l per sq.tL (Rupees one hundred seventeen only) fo.everyrupeeofaddirionatrentatachieved in rhe caseof batance 50% of ino€ased renr,l\ I The aioresaid complaints were filed by rhe complainants agajnsr the promoter on account of violation of the builder buye.,s agreement executed betrveeo the parties inr€r re in respect of said units fo. not handing over the possessjon by the due date, seeking award of delayed possession chargesi assured return, and Iirjgation charges.

It has been decided to trear the said complainrs as an application for non- compliance of starutory obtigations on the part of the promoter/respondent in terms olsedion 34(0 ofthe Actwhich mandates the authority to ensure compliance of the obligat,ons cast upon the HARERA he HARERA GL]RUGRAIV Compla nino 4220of 2022&3olhcB or [oNh.-do./ rutu- c,i:.- [monFil FrneG *Tr.-r- IT *HARERA S- eunrcnnvr Complaint no 4220 of 2022 & 3 others promoters, the allottee(s) and rhe real estate agents under rhe Act, rhe rules and the regulatjons made thereunder.

The facts olall the complainrs fited by the comptajnantG)/allorteeG)are also similar in nature.

Out ofrhe above-mentioned case, the particulars of lead case CR 4220/2022 titled os Dr.

Suman yoitav & Harish yadov vs.

M/s Votika Llmited arc bejng taken into consideration for derermining the rights ofthe allortee[s) qua de]ay possession charses, assured return and Ugation charges.

Proiectand unit related detaits The particulars olthe project, rhe detaits ofsate consideration rhe amounr paid by the complainanr(s), dare of proposed hand ing over the possession, delay period, ifany, have been deta,l;d in the iollowing tabular form: CR4220/2022 titled as Dr.

Sunan yadav & Harish yd.tov Vs.

M/sVotiko ''VatikalNXTCilyCent.e atsecrorS2, 122 of2008 dated 14 06 2o0B vahd 13 06.2016 7. .l 11', ---l-l [EaEe 20 olcomptaint BBA, paee 20 of Nahe and locarion ot tlc 2 NJrureotthEtrolecr RERA Resjsrered/ not no.

J15,ld oor, tow D"t" "f brrild". brJ,e.

335,blockC ZS.TO.ZOTO ia* 8.

Due date of 25,10.2013 ns.

SO.00Poof Total sale ffr]aRERA 9F- Gunucnau t1 O.LUpauon.ertificate t-l 14 Assu.ed retu.n ahounr paid by the rcspondenr tacts otthe complainr 'l hatin theyear2010, rhecomplairanisrecerve.laca , t onr the marketing departmen r of the respondcnr for investmenr in the project na m e ty ,Vnn ka INXI City Centre, siruated in Secror 82, Curgaon (Haryanal.

It was statcd by the respondents representarive rhat it is an extremetv successfi,l builder/developer whjch has conceptualized, imptemented and developed various projects in lndia.

It was furrher represented that the aioresaid commercial complex would comprise ot retait, hotels, seruiced apartments, corporate offices etc. fices etc.

It was assured to the complainants rhar the complex would include modern amenjties like 24x7 power backup, CCTV securty, recreational faciltjes etc. aod would be instrumenral in contributing to rheir life tt further invited rlem to visit its omce tor a detailed presentarion and overview ofthe project.

9.

That rhe complainanrs betieving the representations to be true in good faith, vis,ted the office of the respondent and mer its sales representative/agent.

The respondenf acting through its sales represenrative, assured rh€ comptainants rhatal the sanctions pertaining to the said projecthad been obtained by it.

They were turther assured that the possession of the unit would be delivered within 3 years by the Pase 5 oI32 Rs.50,00,000/- tcomplainants alleged that rhey paid addirional amounr ot Rs.

28,00,000/ in cash, but there is no evidentiary p.ooi of BBA, page 20 of J Rs.61,90,849/ replyl B, respondent and it would provide a pre-determjned sum of money per month to them for the entire period utilized jn completion ofrhe project.

Thus, an impression was generated by the respondenftharit is striving to deliver possession of the unit in a sho( period oi time.

The respondent further represented that the units in the project were seling out rapidly and jt would be in the inrerest ofthe complainants ro secure alotmenr ol r unir by pdyrng a cerlain sum of money to rr.

10.

That lured and induced by rhe rep.esenrations and assurances proffered by the respondenr, the complaimnts applied ior allotment ota unit in rhe said project.

In pursuance thereoi tley were altorted a unit bearing no.

315 admeasuriDg 1000 sq. tt. super area siruated on 3d Ftoor of tower bearing no.

A in the said project for a total sale consideration initially quantified at Rs.

50,00,000/. and rhe same was duly pa,d by them.

However, therespondent, thereafter, unjlatera y revised therate from Rs.

5,000/' per sq. ft. to Rs.7,800/- per sq. ft. and demanded an additional amount of Rs. unt of Rs.

28,00,000/- from the comptainants.

The respondent jnsisred that the add,t,onal amount ol Rs.

28,00,000/- be paid in cash by the complainants.

Ir was claimed by it rhar co ecting a p3rt of the sate consideration in cash isa prevalentp.actice in the reatestate industry and the same would allow it ro utilize the cash amou nt fo. mobitizing labor and constructio. materialon daily bash.

The comptainants proceeded ro pay Rs.

28,00,000/- ,n cash to the respondent in good faith.

The .espondenr insisted that the said rransa€rion be kept,nfo.mal and refrained from executing any receipts with rega.d to that amount.

They did not have any reason to suspect the bonafide of the respondent and beheved its representarions ro be rrue in good faith.

The respondent vide its terter dated 31st of luly 2013 replaced rhe unt, referre.t to above, with unit PHARERA S- eumcnaltr Complaint no.4220 or2022 & 3 orheri HARERA GURUGl?A]\I bearing no.335 admeasuring 1000 sq. ft. super area siruated on 3d floor oftower bearing no.

C.

11.

That thereafter, the respondent provided a pre-printed, arbitrary, biased and unilateral bujlder buyer agreemenr to rhe comptainants.

They, after perusingthe said agreemenf raised cerrain objections againstthe ctauses incorporated in the sa,d agreement but it did not budge.

As a resul! they had no choice but to go ahead and execute the said agreem€nr containing biased and prejudicial terms and co.dir,ons unilateralty incorporated by it 12.

That the complainanrs specifiijilly.objeded ro the aforesaid ctauses otthe buyer's agreement and requested the respondent to incorporate pariry between the parries.

How;ver the concerned representative oa the respondent stated $at the buyer's agreement in question was a srandard document and thesame js executed invar,ably by atl the altotrees.They, at the relevant rime, did nor have any choice but to proceed with the transaction and executed the buiider buyer agreement on 2S.10.2010.

13. .2010.

13.

That, without prejudice to the foregoing, it is submirted that as pe. clause 2 of the buyer's agreemen! the respondenr had undertaken to complete the construction of rhe proiect w,thin three years hom the date of execution of the bLryer's ageemenl Furth€rmore, the respondent had expressly agreed to pay Rs.71.50/-per sq. ft. ofsuper area per month as comm,tted return forthe period ofconstruction ofthe project. tt has been further stipulated in clause 32.2 that the respondenri on comptet,on ofthe project, would pay aminimum guaranteed rent at Rs.65/ persq.ft.rothe complainants per month for rhe first 36 months afrer the date of completion of the project or tilt rhe date the unir in questjon has b€en leased out and whicheverwas earlier.

I Conplarnt no.

4Z2Oof 2022 & : MHARERA 9P- eunucnnr,r 14.

Thatthe due date for delivery ofpossession ofthe un,t in question was 2Ss of October 2013.

However, the respondent consciously failed to offer possession of the unit in quesrion to the comptaina.rs w,thin the stipulared time period.

15.

That a letter dated 1sti ofMarch 2018 was dispatched ro the complainants bythe respondenr whereby irwas pleaded by irthat ithad completed the construction of block C in the project.

It was turther conveyed to rhe complainants that the respondent was supposedly in act,ve discussions with a numb€r ofprospective r€nants and was expectjng to lease out the area in due course.

Fu.thermore, itunilaterally revjsed rhe commirment charges due and payable to them hom Rs.71.50/, per sq. tr. super area per month to Rs.65/- persq. ft. superareapermonth.

The respondentassured that it would pay the aforesaid amount to the complainants f.om 01.03.2018 tillthe unit is leased ourto a tenanr 16.

That the unilateral and dishonesr act oithe respondent rn decreasing the commitment charges due and payable ro the complainants tronr Rs.

71.50/- per sq. ft. super area per month ro Rs.

65/- per sq. ft. er sq. ft. super area per month is illegal, unwarranted, whimsical and ilogical especial]y in l,ghtofthe fact thar rhe respondenthad norobtained occuparion cerr,ficare in respect of the tower jn which the said unit is located.

It is undeniable that the respondent could not have detive.ed possessjon ro a prospective lessee in the absence of the occupation certificate.

In fact, making rhe building operative without the granr oa occupation cerrificate rherefore is in itselfa culpable act.

The respondent, thus, cannot be lega y permitted to decrease the commitment charges as alleged in the letter, referred to above.

The build,ng has not been completed in accordance with law and on that count, the unilateraldecrease in rhecommirment charges dueand payableto them is premature, overhasty, illegaland uniustified.

Prgc I !r 32 17.

Thatafter receiptoftheaforesaid lerter, the complainants visired rhe otfice ol the respondent and further tried to communicate telephonically with the respondent on various occasions and had requested the officiats otrhe respondent multipletimes to disclose rhe exact status oithe completion of the construction ofthe said project but to no avail.

In fact, the omciats d,d not d,sclose to the complainanrs tilldate as ro whetherthe unit in question has been leased out or not.

The officiah ot rhe .espondent have kepr on evading the queries.aised by the comptainants on one prerext or the other.

They are completely uDaware ofthe status otthe unit in question and therefore reserae their right to amend the insta.r complaint upon revealing ofthe aforesajd facts pertaining to rhe unit in question by the 18.

That it is evidenlthat the respondent has miserably iailed to complete rhe project within the stipulared rime period.

Morcover, the respondent has wantonlystopped remitting the commitlnent charges to the complainants from July 2018 in complete contravention of irs express promise in rhe l€tter dated 15.03.2018.

5.03.2018.

Without admittingthe correctness and vatjdiry ot the letter dated 15.03.2018, it is submitted rhat it has ev,dently tailed ro offer possession ofthe unit referred to above, to rhecomptainants withjn the st,pulated time period and is consequently ltable to pay detay possession ,n accordance with the provisions ol rh€ Real Estate (Regulation and Developmen0 Act,2016.

Furthermore, rhe respondent is contractually and legally obligated to pay a minimum amount ot Rs.

6sl- per sq. ft. super area per monrh to the complainants from the actual date ot completion of the project for a period of 36 monrhs as has been stipulated in the buyer's agreement.

The complainants have requesred the respondent multiple t,mes to discharge its aioresaid financ,al liabilities *HA&ERA 9F- cunLrcmur Complaint no 4220 or 2022 & I orhe.s 1rHI\RERA S-eunuennu F..d,r,, *-4rro.r,ozzat*"1 19.

That the entire sale consideratjon of Rs.

7 8,00,00 0/, had been remitted ro the respondent in the year 2010.

However, it has tailed to provide any document to the complainants which indjcates thar rhe construction ofthe proiect has been completed nor the respondent has offered to execure a conveya.cedeed in favo r oi the complainants.

The respondent has iurther lailed to disclose to the complainants regard,ng any lease, iiexecured, in respect of the unit in question.

Addit,onally, it has mahciously and d€liberately withheld the commitment charges/ minimum guaranteed rent due and payable to the complainants.

The aforesa,d acts of the respondent are completely illogical and irrational in the facts and circumstances of the case.

20.

That it ,s submitted that the;e is inordinate delay in completion of the said p.oject.

The respondent has failed to deliver possession of the unit rn question or execute a conveyance deed in respect thereof till date.

The laith of the compiainants in the respondent has been eroded irrevers,bly. evers,bly.

Thus, the complainants are entitled to delay possession charges and compeDsation and compensation in the facts and cjrcumstances oi the case.

No lapse or default of any nature can be imputed to the complainants in the entire sequence of events.

They have fulfilled their contractual obligations arisiog out of buyer's agreement dated 25.10.2010 and have always been ready and willing to abide by the covenants incorporated in buyer's agreement.

They have been penalized, harassed and victimized without there beingany fault whatsoever on thei. part.

The complainants deserve to be compensated for loss oi interest by the respondent and as well as for the harassment and mental ago.y undergone by them on account ofdeceitfuland unfair trade practices adopted by it.

21.

That it needs to be highlighted thar the complainaDts ar rhe time oa purchase, had made a legitimate assessment regarding the future course Page 10 oi32 RA RAII/ HARE GURUG u oltheir lile based on the representation olthe respondent that the unit in question would be delivered by October 2013.

The complainants had considered that the unit in quesrion would start giving returns, as promised in the buyer's agreement, by 0crober,2013 andaccordinsly had planned their finances.

However, on accounr of unwarranted and excessive delay on the part oi the respondent in fulfitment of its contractual obligations, the complainants have been left in lurch and have suilered enormously without there beingany faulron thei. part.

22.

That the complainants have beenneedlessly compelled by the respondent to institute the present complai[t.

They requested the respondenr multiple times to remlt the amount due and payable to them by it.

However, it has ignored and evaded the requests oithe complainants on one pretexr or the other.

It is perrinent to rnention that there have been deliberate misrepresentations or its part.

Relief sought by the complainants: 23.

The complainants have sought following relief(sl: i. ief(sl: i.

Direct the respondent !o handover the possession along wjth Complaint no.4220 of2022 & 3 orhers delayed possession charges. ii.

Direct the respondentto pay t}le commitment charges lrom July 2018 t,llthe date ofpossession. iii.

Directto paythe balanceamount calcIlated @Rs.6.50/- per sq.ft. from for the month of March 2018 to July 2018 along with interestatthe rate of 120lo per annum calculated from the date on which the amount be€ame due and payable to thecomplainant. iv.

Direct to pay an amount of Rs.

1,00,000/- as litigarion expenses incurred by the complainants. ffiI]AREIA 9E Grnrcnmr Complaintno 1220of2022& I oihcrs 1:l On the date of hea.ing, the authority explained ro the respondent/ promoter about the contraventions as alleged to have been committed in relation to section 1t(4) [a] ofthe act to plead guitty or not to plead guitty.

Reply by the respondent The.espond€nt contested thecomplainton rhe following grou nds. a.

Thatthe complainants havegotno locus standi orcause ofaction ro file the complaint.

It is based on inrerprerarion of the provisions oithe Act as well as an incorrect unde.sranding ofrhe terms and conditions of the buyers' agreement, as shall be evident irom rhe subm,ssions made in following paras.

At the very ou tset, it is submirted that the complainants have misdirected themselves in filing rhe above captioned complaint before the authority as the .eliefs being claimed by them cannot be said to fall within the realm ofjurisdict,on of the authority. lt is humbly submitted that upon the enactment ol the Banning of Unregulated Deposit Schemes Act, 2019, rhe assured return'and any"committed returDs" on the deposit schemes have been banned.

The respondent having nottaken registration from SEBI thus cannot run, operate, continue an assured return scheme.

The implications ofenacrment of BUDA Act read with the Companies Act, 2013 and compaoies (Acceptance ofDepositsl Rules,2014,.esulted in making the assured return/committed retu. tted retu.n and similar schemes as unregulated schemes as beingwithin the definition ol"deposit".

As per sectio.

3 ofthe EUDS Act, all unregulated deposit schemes have been strictly banned and deposit takers such as bu,lders, cannot, direcdy or indirectly promote, operate, issue any advertisement soliciting participation or en.olment in or accept deposit.

Thus, s€ction 3 oithe BUDS Ac! makes the assured return schemes. ol the builders and promoters, illegal and punishable under law.

Further as per the SEB] I), PH Sc ARERA URUGRA[/ Act, 1992, collective investment schemes as defined under section 11 ,A,q can only be run and operared by a registered person.

Hence, the assured retu rn schemes have become ,llegat by the operatjon of taw a nd the respondent cannot be made to run a scheme whjch has become infructuous by law Also, it is jmporrant to rely upon ctause 35 oithe BBA dated 21.07.2011 which specifically caters to a situarion where certain provisions oithe BBA become inoperable due to applicarion of law.

Thus, the complaint deserves ro be dismissed at the very outset, w,thourwastingpreciousrimeof thisaurhoriry. b.

That the complainants atso enjoyed the monrhty returns ti seprembe.

2018.

The complainr has been nled by them jusr to ha.ass the respondenta.dtogainth€unjustenrichment.

Itis pertinenrto mention here that for the la,r adjudicarion oi grievances as a €ged by the complaina.ts requires detailed deliberation by leading rhe evidence and cross-examination, rhusontythe civilcou.t has ju.isdiction ro deal with the cases r€quired detailed evidence ior p.oper and fair adjudication. c.

That the complaint is not maintainabte betore the authority as ir is apparent from the prayersoughtin the comptaint.

Further, it is cryskl clear from readirg rhe comptaint that the complainanrs are not 'allottees', b ur purely 'investors,, who are only seeking retund from the respondentduetothedep.eciatingrealestatevatues. d. vatues. d.

That it is also relevanr to mention here that the commercial unit otthe complainants was not meant tor physical possession as the same was only meant for leasing the said conm€rcial space for earning rental income.

Furrhermore, as per clause 32 of the agreemen! the said commercial space was deemed to be legaly possessed by the Complarnt no a220oI2022 & 3 otheE Page l3 ol32 PHARERA S-c,rnrannrl aompla'nr no 4210 of2022 & J other s e.

That in view olthejudgment and order dated 16.10.2017 passed by the Maharashtra RERA Authoriry in the complaint titled Mohesh poriani vs, Monarch Solitaire iD, complaint no: CC00600000000079 ol 2017, in case where the complainants have jnvested money in the project with sole intention ofgaining profits our ofthe projecr, then rhey are in the position ola co,p.omoter and cannot be treated as,allottees,. t In the matters of Arriml€ et & Anr.

Vs.

M/s tandmark Apartment pvt.

Ltd. (complaint no.

141 ol Zo18), & Bharam Stngh & Ors vs. yenetian LDF Prolects tLP (Conplalnt No.

175 of 2018), decided on 07.04.2018 & 27 -17-207A tespectively, the hon'ble Haryana reat Esrate Regulatory authority has taleD the same view as observed by Maharasthtra RERA in Malesh Pd anistated earlier.

Thus. the RERA Act, 2016 cannot deal with issues of assured return and hence the present complaint deserves to be dismissed at the very outset. g.

That the complainthas been filed by thecomplainantslust ro harass the respondent and to gain unjust enrichment.

The actual reason ror filing ofthe complaint srems fiom the changed financial valuation of the real estate sector, in the past few years and the allottees malicious intenrion to earn some easybuck Th€ covid pandemic has given people ro rhink beyond the basic legal way and toattempt to gain fi.ancially at the cost oi others.

The complainants have instituted the present lalse and vexatious complaint against the respond€nt who has already ful6lled its obligation as denned under the BBA dated 25.10.2010.

5.10.2010.

Further, the construction ofunit was completed and the same was duly informed ro g.

That the present complaint has been nled on the basis of incorrecr understandi.s ofthe obiect and reasons oienactment ofthe RERA.

Acr 2016- The legislature in its great wisdom, understanding the caralytic !A RA[/ RE UG H G *IT A UR aomplarnr io 4.?ruot2022& J urher s 13.

14 role played bythe realestate sector in fulfiltingthe needs and demands tor housing and inirastructure in rhe €ounrry, and the absence oi a regulatory body to provide proiessionalism and standardization to the said sector and toaddress alltheconcerns ofboth buyers and promote.s in the realestate s€cror, drafted and norified the RERA Act, 2016 aiming to gain a healthy and orderly growth oithe industry.

The Act has been enacted to balancethe interests oi consumer and promorerby imposing certain .esponsibilities on both.

Thus, while se€tions 11 to section 18 ot the RERA Ac!

2016 describesand prescribes the function and durjes of the promoter/developer, sectlol 19 provides the rights and duries of allottee.

Hence, the REM Act 2016 was never intended to be biased leg,slation preferring the alloftee, iather the intent was to ensure that both the allotteeand the developer b€ keptatparaDd either ofrhe parry should not be made to sufferdue to act or omiss,on of part ofthe other. h.

The complainantsare attempting to seek a,] advantage olthe slowdown in the realestate sector, and it is apparent [rom the iacts of the present case.

The main purpose of the present compla,nt is to harass the respondent by engaging and igniting frivolous issues with ulterior motives to pressurize it lt is pertinent to submit that rhe complainanrs were sent letter dated 27.03.201a informinS ol rhe completion of conskuction.

Thus, the present complaint is without any basis and no cause of action has arisen till date in their favour and against it and hpnce. lhe complaint deleDe\ lo bp drsmr\:ed. drsmr\:ed.

All other averments made in the compla,nt weredenied in toto.

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

Their authenticiry is not in dispure.

Hence, the complajnt can be decided on the bash of those undisputed documents and submissrons made by the parties- Pasc 15 ul12 ffllaBERA 9F* eunucmr,l E. rurisdlctionoftheauthority 14.

Therespondent has raised preliminary objection regarding jurjsdifiion oi author,ty to entertain the present complaint.

The auth ority observes that it has territorial as well as subject matter jurisdidion to adjudicate the present complaint tor the reasons given below.

E.

I Territorial ,urisdiction 15.

As per notificarion no.1/92/zO7?.7TCp dated 14.12.2017 issued byTown and Country Planning Department, Haryana, thejurisdiction ofReat Estate Regulatory Aurhoriry, cu.ugram shalt be entire Gurugram District tor aI purposewith offices situated iqiculugram. rn the presentcase, theproject in question is s,ruared within the ptanniog area of Curugram District.

Therefore, this authortty has compleie territorial jurisdiction to deatwith the present complainL E. lI Subiect-matter rurisdtcfl otr 16.

Section 11(4)(a) of rhe Acr 2016 provides that the promoter shall be responsible to the allottees as pe. agreemenr for sate.

Sectjon 11ta)(al is reproduced as hereunder: 3" re,oan\ihle la, oll obtigatioas respons,b iLi6 ond tur. ton, undet tap prclhba\ ot t\t\ An o. th" tute" ond r;ltrbt,an, aode rhctpunde. ot ro rne atlare! a, per th" ogreene tal ete, or to the a$oclotion ol atotteet os the cae movbe, til the -aFvctoa.eorollthz 1pa,ta"nt. pto6 at b,tldna, u\ ttu tn . qat be_ b 'hp att"lpc\. o, op t ".., " ", ",, t" ti" ",,a.,.t,_ otorbtPe,at Lhe,aaDc,e41tt\a.n a\tne \v\p 4a,, bt The provision olasurcd returns n port afthe buitder buret,s og.eenent, as per clouse lsaIthe BBAddted...

Accatuingl]t, the ptonoter is responsible far olj obtigotions/rcspansibtlxjes an. tlxjes an.l lunctions including palnent al o$ured returns as prcvded in Bunder Buyet sAgreenenL section 34-Functions oI the Authoriry: r.mp arn, nu 4220u11022& lothers 344 oJ the Act providet to ensute canpliance olthe abhgoions @st upan the pramote\, the ollottees ahd the reot dtote ogen\ undet thk Act and the rulesand regulationsnade thereundet.

17.

So, in view of the provisions of the Act ot 2 0 16 quoted above, the authoriry has complete jurisdiction to decide the complaint regarding non_ compliance of obligarions by rhe promoter leav,ng aside compensarion wh,ch is to be decided by the adjudicating omcer if pursued by the complainants at a later stage.

I.

Findings on rhe relief sought by the complairlants: 18.

Earlier the complainants fited complainrs seeking retund oathe paid-up amount along with arr€ars ofassured returns and litigation charges etc.

But dur,ng rhe pendency ofrhe comptaints, they did not opr for refund of the paid-up amount from the respondent and soughr relief of detay possession charges, assured returns and titigation charges and thejr plea was allowed by way olamendment ofcomplainrs.

19.

The common issues involved in all the three cases are wirh regard ro delayed possession charges, assured return & Iitigation cha.ges and the same are beingdiscussed as under: F.I Assur€d retum 20.

Before taking up theissue ofdelaypossession charges aga,nst the aUorted units, the,ssue ofassured re!urn is beingdiscussed as findings on the same would effect that issue.

Whilefilingthe perition besidesdetayed possession charg€s of rhe allotted unit as per builder buyer agreemenr, the claimants have atso sought assured returns on monthly basis as per addendum to rhe agreemenr at the rates men tioned therein t,ll the completion ot the bu itding.

It is plead ed thatthe respo.denthas notcompliedwith theterms and conditionsoithe agreement.

Though ior some time, the amountofassured returns was paid PHABERA €6 clnrrcoal,r Complarnt no. plarnt no.4220 of2022 &'J orhers HARERA GURUGRA[/ but lateron, the respondent refused to pay the same by takins a ptea ofthe Banning ofUnregulaied Deposit Schenres Act, Z019 (herejn after referred to as the Act of 20191.

But that Act does nor create a bar ior paymenr ol assured returns even aftercoming into operation and the payments made in this regard are protected as per sectjon 2(altiii) ofthe above,menrioned Act.

However the plea otrespondenr is otherwise and who rook a stand thatthough it paid the amountotassured returns upro the year September 2018 but did not pay the same afrer comjng into force oithe Act of2019 as its payment was declared i[esal.

TheAct oi2016 defi.es "agreement for sate,,means an agreemenr enrered into betw€en rhe promorer and rhe auo$ee [Section 2(c)].

An agreement lor sale is denned as an arrangement enrered between the promorer and allottee wfth freewitl and consent of borh the parties.

An agreement defines the rights and liabilities ofboth the parties i.e.i promoter and rhe allotteeand mark thesrart ofnew contractual retationsh ip between them.

This contractual relationship gives rise ro future agreements and transadions between them.

The differenr kinds ofpayment plans were rn vogue and legal within the meaning otthe agreement for sale.

One otthe integral part ofthis agreementis the transacrjon ofassured return inter se parties.

The "agreement for sale,,after comjng,nto iorce ofrhis Act (i.e., Act of 2016) shall be in the prescribed form as per .ules but rhis Aft of 2016 does not .ewrite the ,,agreement, entered between promorer and allottee prior to coming into iorce oftheActas held by the Hon,bte Bombay High Cou.t in case,Veelkamat Reottors Suburban private Limited a d Anr. v/s Unionoltndio & Ors., (Writ petition No.2z37 ol2017) decided on 05.12.2077, Since the agreement defines rhe buyerpromoter relationship the. nship the.efore, ir can be said that rhe agreement for assured returns between the promoter and auotree arises out of rhe sahe ffi cs Cofr plaint no 4220 of 2022 & 3.thp^ relationship.

Therefore, it can be said that the real estate regutato.y authority has complete jurisdiction to deal wjth assured return cases as the contractual relationship arise out of agreement for sate only and between the same parties as per the provisions oisection 1t(4)ta) otthe Act of 2016 which provides rhat the promorer would be responsible for all the obligations under the Act as per the agreement for sale rrlt the execution of co.veyance deed oithe unit in favour of the alottee.

Now, three issues arise ior considerarion as to: i.

Whether the authorjty is within its jurisd,ction to vary jts earlier stand r€garding aslured rerurns due ro changed fa€ts and circumstances. ii. wherher the authority is €omperent to allow assu red retu rns to the allottee in pre-RERA cases, after the Act ot2016 came into ope.ation, iii.

Whether the Act of2019 bars payment ofassured rerurns to the allottee in pre-RERA cases 19.

While taking up the cases of BrhimJeet & Anr.

M/s Landmork Apartme s PvL Ltd. and Sh.

Bharom Singh & Anr.

Verc@in LDF Ptoje.ts LLP" tsupra), it was hetd by the autho.iry that it has no jurisdiction to deal with cases ofassured returns.

Though in those cases, the issu€ ofassured returns was involved to be paid by the bujlder ro an allottee but at that time, neither rhe full facts were broughr before the authority nor it was argued on behalf ofthe altottees that on the basis of contractual obligarions, the builder is obligated ro pay rhat amount.

However, there is no bar to take a different view from the eartier one if new iacts and law have been broughr befo.e an adjudicating authority or the court.

There is a doctrine of "prospective over. tive over.uting,, and which iPHARERA db eunuenml Cumplarnr no 4210 or 2022 & r others tr as HARERA GURUGRA[/ provides that the law declared by th€ court applies to the cases arising jn lutureonlyand its appticability to the cases which have aftained finality is saved because the repeat woutd otherwise work hardship to rhose who had trusted to its exisrence.

A reference in this rega.d can be made to the case of Sorwan Kumar & Anr ys.

Madon Lat Aggary/at Appeot lciyit) 1058 o12003 decided on 06.02.2003 and wherein rhe hon,ble apex courr observed as menrioned above.

So, now the plea raised with regard to ma,ntainabjlity ol the complaints in the tace of ea.lier orders oi rhe author,ty in not tenable.

The authoritycan take a different view from the earlier one on the basis oi new facts and law and the pronouncements made by rhe apex €ourt of the land. lt is now wellsetrled preposition oflaw that when paymentofassured rerurns is parrand parceloibuitder buyer,s agreement [maybe rhere is a clause in rhar documenr or by way of addendum,rnemorandumofunderstandingortermsandconditions orthe allotmentola unir),then thebuilder is liable.o paythat amountasas.eed upon and can't take a plea that it js nor tiabte to pay the amount ofassured return.

Moreover, an agreement for sale defines the buitder-buyer relat,onship.

So, it can be said that the agreement for assured rerurns berween the promoter and an atlotee arises out otthe same relatjonship and,s marked by rhe or,ginal agreement iorsale.

Therefore, ir can be said that the authorityhas comptetejurisdiction with respect to assured rerurn cases as the contractual relationship arises our of the agreemenr tor sate only and berween the same contracting pafties to agreement for sate.

1n the case in hand, the issue ofassured returns is on the basis oicontractuat obligat,ons arising between the pafties.

Then in case of pioneet Urban Lond and tnJrastructure Ltmited & Anr. v/s Union of lndia & Ors. (wtit Petition (Civil) No.

Civil) No.43 of 2019) decided on 09.08.2019, it was observed by the Hon'ble Apex Court ofthe land thar "...allortees who had entered into Complainr no.4220ot2022 &3 othpr( ff!aRERA * euntnnnnr ,assured return/committed returns, agreements with these develope.s, whereby, upon payment oi a subsrantial portion of rhe total sale consideratjon upfront at the time of, execution of ag.eemen! rhe developer undertook to pay a certain amoun o atlonees on a monthly basis from the date of execuhon of agreement ti the date ot ha.ding over of possession to rhe allottees,,.

Ir was turther held that .amounts raised by developers underassured rerurn schemes had the ,commerciateffecr ofa bo.row,ng'which became clear from the developer,s annual returns rn which the amount raised was shown as,,commirment charges,, under the head financial costs".

As a result, such altortees were held ro be ,,financjal creditors" within the meaning of section 5(7) oi the Code,, including its treatment in book of accounts ofthe promoter and for the purposes of income tax.

TheD, in the latesr pronouncement on rhjs aspect in case lowee Kenslngton Boulevod Aparttnents Wellare Associotion and Ors. vs.

NRCC [India) Ltd. and 0,|I,. (24.03.2027 SC]r r\,rANU/ SC/0206 /2021, the same view was followed as raken earlier in the case of,pioreer Urban Lond lnlrastructure Lit & Anr. with regard to rhe altottees of assured returns ro be financial creditors within the meaning of section 5(7) ol the Code.

Then after coming into torce the Acr ol 2Ot6 w_e.f 01.05.2017, the builder js obtigated to register the project wirh rhe authority being an ongoing proiecras per proviso to sect,on 3(11ofthe Act of 2017 read with rule 2(o) of the Rules, 2017.

The Act of 2016 has no provision for re,writing of contractual obtigatio ns berlveen rhe parties as held by the Hon'ble Bombay High Court in case Neelkamat Reattors Suburban Private Limited and Anr. v/s Union ol tadia & Orr, (supral as quoted earlier.

So, the respo. the respo.dent/bu ilder cant take a plea that there was no contractual obligation to pay the amount of assured returns ro the allottee after the Act oi2016 came into force or thar a new agreemenr is Complarnt no.4220 ot2O22 & 3 other ffrlaRERA CP- GURUGRAIV being executed with regard to that fact.

When there js an obtigation ofthe promoter againstan allottee to pay the amount ofassured returns, then he can'twriggle outfrom tharsituation by taking a plea otthe enforcement ot Act of2016, BUDS A€r 2019 or any other law.

It is pleaded on behala of respondenr/buitder rhat after rhe Banning of Unregulated Deposit Schemes Acr ot20t9 cane into force, there js bar fo. payment otassured returns to an allo$ee.

But again, rhe ptea taken in this regard is devoid ofmerit.

Section 2[4) ofthe above mentioned Actdefines the word ' d eposit' as ,n d nountof nokey received by woy ol on advance ar loan or in o y other form, by an! aleposit taker with o pronise to return whether alter o specfied period ororheMise, either in cash or in kind or jn the form of a specjfi€d serltice, with or without ony benefrt in the larm af intercst, bonus, prolt or in any other lorm, butdoes not include t. an anoun. lffiryd if qte tto4le aI pr dlr the purpose ot. *;ifll\?\4' fi "+'"l "Pwi h such buihess ,, ffi#f;,-\t"x&&Jl,{6; nsidera,ion ot on irnrnovoble propeli(@FlgOU\tt{.*t or aftonsenent subject b .he conditioi,fi?rt(i-odvance is o.tiusted oooin{ ::"j,;ffi #tlA*P&'n " " r't' "'s *;; "i zt e perusal of the@f-f9tliohdq?Didpi\orrhe term ,deposir,shows that it has beenYv;fii Yr.Y."*ing as assisned ro it under the Conpanies Acr,2013 and rhe sam€ provides undersection Z[31) includes any receipt by way ofdeposir or loan or in any other form by a company but does not include such categories ofamount as may be prescribed in consultation with the Reserve Bank of India. of India.

Similarly rule Z(c) of rhe Companies (Acceptance ofDeposits) Rules, 2014 defines rhe meaning of UG GUR u HARERA deposit whi€h includes any rece,pt otmoney by way ofdeposit or toan o. in anyother lorm bya companybutdoes not include. t. as a adr,o e, a.comkd tor in any monncr \hotsocvet, .e(cived tn connec on wth cansderatb4 lor an immovable property t. ot an_odvonce ree\ed ond os a owed by ony vcrorat regulator ar in occordance with directiohs ofCennator State Govemment; 22.

So, keeping in view the above,mentioned provis,ons oftheAct of2019 and the CompaniesAct 2013, iris ro beseen as ro wherheran a ottee is entitled toassured returns in a€asewharehe has deposited substantial amount of sale conside.ation agajnst the: ormerr of a unit with the builder at rhe time of booking or immedi6te& tbeieafter ana as agreed upon berween them.

23.

The covernment of Ind,a enaded the Banning of Unregulated Deposit Schemes Acf 2019 toprov,de for a comprehensive mechan,sm to ban the unregulated deposit schemes, other rhan deposits raken in the ordinary course ofbusiness and to protect ti e jnterest otdepos,rors and iormart€rs con nected therewith or jncjdental rhereto as defined in sedion 2 (41ofthe BUDS Act 2019 mentioned above.

24.

It is evident from rhe perusal ot section 2i4)tl)(iiJ ofthe above_mentioned Act that the advances received iD mnnection wirh consideration ot an immovable property u.der an agreement or arrangement subject ro rhe condition that such advances are adjusted against such immovable property as specined in terms ofthe agreement or arrangemenr do norfa with,n the term of deposjt, whjch have been banned by rhe Act of 201 9.

25.

I!,loreover, rhe developer isalso bound by pro m issory estoppet.

As per rhis doctrine, the view is that if any person has made a promise and rhe promisee has acted on su.h promise and alrered his position, then the ffHARERA 9t eunue nrrr person/promjsor is bound ro comply wirh his or her promise. r promise.

When the builders failed to honour their commitmenrs, a number ofcases were fited bythe creditors at differenr forums such as,ryll(rrilrr€ hta, pioneerUrban Land ond hfmstructure wh,ch ulrimatety ted the cenrralgovernment to enact the Banning ofUnregutated DeposirScheme Act, Z0t9 on 31.07.2019 in pursuant to the Ban.ing of Unregulated Deposit Scheme O.dinan.e 20t8.

However rhe mooi quesuon to be decided rs a\ to wherher Ine schemes floated earlier by the builders and promrsing as assured returns on the basis ofalorment ofunitsare covered by the abovementioned A.r or not.

A similar issue tor .consideration arose before Hon,ble RERA Panchkula in case Batdev coutam VS Rise projects trivate Limited (REM-PKL-ZO69-201|)wher;jn itwasteld on 11.03.2020 that a builder is liable to pay monthly assured returns to thecomplainants tillpossession ofrespective aparrments stands handed over and rhe.e is no ilegaliry,n this regard.

26.

The denniuon of rerm deposit, as Siven in tne BUDS Act 2019. has the same meaning as assigned to It urder the Companies Act 2013, as per section 2ta)(ivl(i) i.e, explanatjon to su b,clause (iv). rn pu.suant to powe.s conferred by clause 31 of section 2, sedion 73 and 76 .ead with sub- section 1 and 2 ofsedion 469 ot the Compaoies Act 2013, rhe Rutes wirh regard to acceptance ofdeposirs by the companies were frarned in theyear 2014 and the same came into io.ce on 01.04.2014.

The definition of deposir has been given under secrion 2 (c) ofthe above-mentioned Rules and as per clause xii ibl, as adva.ce accounted for in any manner whatsoever received in connection with consideration ior an immovable property under an agreement or ar.angement, provided such advance is adjusted againstsuch properry in acco rdance with the terms oi agreemen t or arrangemenr shall not be a deposit. a deposit.

Though rhere is proviso to this ffiHARERA 9P- eunuennrr,l provisionaswetlastotheamounrsreceived underheading,a,and,d,and the amount becoming refundable with or without interest due to the reasons that the company accepting the money does not have necessarv permrssion or approvat whenever requrred lo dedJ ,n ,n" ,ord. o, propenies or services for which the money js taken, then the amounr received shall be deemed to be a deposir under these rules.

However, the same are not appticable jn rhe case in hand.

Though it is contended that there is no necessarypermission orapp.ovalto take the sate consideration asadvanceand would be considered as deposit as per sub_clause 2(xv)ibl bur rhe pled rdvanced In thrs regard is devord or ment.

Fu \t ota . there r\ exclusion clause to secrion r,2 . (xiv) tbl whjch provides that unless specincalty excluded under ttrti clause.

Earrier, the deposits received bv the rompanres or lhe burtders as rdvanre were con\iaer.a as deposrrs bur w'e.f.

29.06.2 016, itwas provided that the money received as such woutd not be depos,t untess specifica y exctuded under this ctause.

A reaerence in this regard may be given ro clause 2 ofrhe First schedute of Regulared Deposit Schemes framed under section Z (xv] of the Acr of 2019 which prov,des as under: Q) rhe fottowks thalt olso be E@ted q Reguloted Depost schenes und er thit Act nohet, I (o) depositt a.@pAd uhder onv yhp) , ;;.;; "; ;; i; ;. ; :;;,, : ; i- i;ff 1,'; ",i: .::,:,::: l' !, sLobtithed under a storute. ond rb) o^ athet. ea" o\ nov bt 4o t"d b t\. relt,ot Lv\pr4qent Ln\lertht\ad 27.

The money was taken by the builder as deposit in advance against allotment of immovable property and its possessron was to be oiaered within a certain period.

However, jn view oftaking sate consjderation by way ofadvance, rhe buitder promised certai. amount by way otassured returns for a certain per,od. in per,od. so, onhisfaiture to tutfitthat commitment rhp ffHARERA S eunuenav alloftee has a right to approach the authoriry for redressal ot his gri€vances by way of fi Iing a comptaint.

28.

It is not disputed thatthe respondentis a realestate developer, and ithad not obrained registration undertheAcr of2016 for the project in questjon However, the project in which the advai deveroper rrom the a one" " "" ",r",". ;;;::: ::::":j: ;li; I: Actof 2016 and, thesamewould falt wirhin the jurisdiction oitheaurhorirv for giving the desired relief to the complainanrs besides tnitiating penal proceedings.

So, the amounr paid by rhe comptainants to rhe builde. is a regulated deposir accepted by rhe later from the fo.mer againsr rhe immovabte property ro be trans;ened to rhe a ortees lare. on.

F.Il Detay poss€sston charge; 29.

In the p.esent comptaint, rhe comptainanr[sJ intend ro conrinue wjrh the projectand areseekiogpossessionof rhesubjectunitanddetaypossession charges as provided under rhe provisions ofsection 18(1) ofrheActwhich "Section tu: .

Retum o|amount an.! cobpensotion taql_lt ,he ptun q to, to .anpl.tp ot ^ u4abte to s\e pa$eston ol an oponnen. pjal at bundnt Pnvded:hat whne @ a onec do?t 4ot t4tcnd ta 4 4dtoa tion tne ototett, he ,ho be pod br th" p,o.otn..","o to, _"n _o*t, i oqau utdthc ho4dkS owr al tne p6\esbn. d 31.

The buyeragreement was execured bealveen rhe pafties.

As per clause 2 oi thatagreement, the possession was ro be handed overwjthin 3 years trom the dare ofexecution ofthat documenr The clause 2 oithe buitder buver agreemenr js reproduced below: 2.

So le .onsi.terotion Ihp Dptplapa w, ,oapbLe the n4!tt.tbn ot t4e\o,d onptax t ht4 thtpp t3) )eo4 r,oq tha da,p ot,.".,,,". ",,i,'_ "r,""."",, r,,",,,r, u HARERA GURUGRAIV Allottee hospoid lullek cansideration on signing alth6 agreement, the Developer fu nher u n derto k4 to n a ke palnen t of Rs A s per o n n exu te' A . .... (Rupees ... . ) p.r sq.l. ol sup. l. ol sup.t area per nonth by wa! al connited return for the period ol consttuction, which the Allottee dLl! o.cepts. ln the event aI o time overrun in .ompletton ol the soid camplet the Developer sholl continue to po! to the Allouee the wnhin nentiohed asuted retutn until the uhit is ollered b, the Devetoper lor paseston (Enphasissupptied) 32.

At the outsel it is relevantto commenton the preset possessio. clause of the agreement wherein the possession has been subjected to all kinds of terms and condit,ons oithis agreement, and the complainant(s) not being in default under any prov,sions ofthis agreement and compliance with all provisions, formalities and documentation as prescribed by the promoter.

The drafting ofthis clause and incorporation oisuch conditions is not only vague and uncertain but so heavily loaded in iavour orthe promoter and against the allottee(sl that even a single default by him in iulfilling formalities and doormentations etc. as prescrtbed by the promoter may make the possession clause irrelevant for the purpose of allotteels) and the commitment time period for handing over possession loses its meaning.

The ,nco rporation of such clause in the buyer's agreement by the promoter is just to evade the iiability towards timely delivery olsublect unit and to deprive the allottee(s) of their right accru,ng after delay in possession.

This is just to commentas to how the builder has misused his dominant positio. and drafted such mischievous clause in the agreement and the allottee(sl is left with no option butto sign on the dotted lines.

33.

Admlssibility of delay possession cha.ges at prescribed rate of int€restr The complainantGl are seeking delay possession cha.8es.

However, proviso to section 18 providesthatwhere an allottee(sl does not ,ntend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of possession, at F"d",*,,"r,. d",*,,"r,.,,*"*a HARERA GURUGRA[/ Complarnt no a2l0 oi2022 &3 orher\ such rate as may be prescribed and it has been prescribed under rute 15 ofthe rules.

Rule 15 has be€n reproduced as under: Rule 15, Presrribed rote oI iatercst- Iptuliso to sution 12, section la and sub-section G) and subse.tion (7) of section 191 [l)For the purpoe of ptoviso to secton 12;se.tioh 18; ond sub sections (4) ond (7)olsenion 19.the"interestotthe ruE pr*cribed'sholl be the Stote Dank of tndio highest na.sinal cost of lending rute +2%: Providedthdtin cay the Stote Aonkalrndio naryihalcastal len.lingrote (MCLR) n not in use,itsho be reptaced b! such benchnotk lending rotes which the stote Bankoflntlo not frx lran tihe to tine Jor lending to the genetul pubhc_ 33.

Thelegislature in its wisdom inthe subordinate legislation under the rule 15 ofthe rules has determlned the prescribed rate ofinterest.

34.

Consequentl, as per website of rhe Stare Bank of tndia i.e., date i.e., 30.05.2023 willbe marginal cost ID d[ marginal cost oflending.ate (in short, IrlCLRl as on is 8.7 0o/0.

Accord ingly, the prescribed rnte of interest ollending rate +2% i.e., 10.70%.

35.

The definition ofterm'interesf as def,ned under section 2(zal olthe Act provides that the rate of interest chargeable fron the allottee by thc promoter, in case oldeflault, shall be equalto the rate oiinterest whrch the promote. shall be liable to paythe allottees, in case oldelault.

The relevant section is reproduced below: "[zo) 'interaf m@ns the rotes oJ interest poyable by the Pronoter or the ollon.e, os the cdse nay be.

Explanation.

Fot the pltpoy ofthis cloue (i) ,he rote ol interest chorseabte fron the attottee by the pronoteL in coy ol delault, shatl be equot to the .dte of interest which the pranater sholl be lidble to poy the attattee, in case ol defottt; (ii) the ihtetest payoble by the prcnotet to the allottee sholl be lron the dote the ptonoter received the onount or ont po rt th ere oI ti I I the d a te th e a n ou n t o. ou n t o. portthercofand interes:t thereon is reIunded, and the intercst poyable by the ollottee to the p.onoter sholl be lton the date the ollattee deloutts in poJ,neht ta the pranotet till the date it is paidi Pdsr 28 uf32 36.

Onconsideration ofdocuments avaitable on record and submissions made by the complainant(s) and the respondent, the authorty js sarisfied rhar the respondent is in contravention ofthe provisions of rhe Act.

By virtue ofclause 2 of the agreement execu red between the parties, the possession ofthe subject unit was to be delive.ed within three years from the dare of execution oi buyers' agreement.

However now, the proposirion befo.e it is as to whether an allottee(s) who is gerting/entitled ior assured return even after expiry of due date of possession, can claim borh rhe assured .eturn as wellas delayed possqJslgn .harges?

37.

To answer the above propositio& it is worthwhile to consider that rhe assured return is payable to the allottee(s) on account ofa provision in rhe buyer's agreement having reference of rhe addendum to the allotment letter.

The assured return in rhis case is payable from the dare oimaking 100Eo of the total sale consideration till completion oi the bujlding.

The rates at which assured return has been committed by the promorer are more than reasonable in the present circumstances.

Il we compare this assured return with delayed possession charges payable underproviso ro section 18(1) of the Act, 2016, the assured return ,s much betrer than delayed possession charges.

By w:y ofassured rerurn, the promoter has assured the allottee(sl thatthey would be entirled for this specific amount till completion of construction of the said building.

Accordingly, rhe interest ofthe allottee(sl is protected even aiterthe due dateofpossession is over as the assured returns are payable from the first 3 years alrer the date ofcompletion oithe project or tillthe dat€ ofsaid unit/space is put on lease whichever is earlie.. s earlie..

The purpose ofdelayed possession charges after due date ofpossession is served on payment ofassured rerurn after due date of possession as the same,s to safeguard the interesr of the allotteesas their money is continued to be used by the promoter even atter ffHARERA 9P euntnmv aohplarnt no 4220o1 2022 & J uthers ffIARERA 9E eunucnnu complaLnrno 4220ot 1022& I orhe6 thepromiseddue dareand in return, they are to be paid either the assured return or delayed possession charges whicheveris higher.

38.

Accordingly, the authority decides thar in cases where assured rerurn is reasonable and comparable with the delayed possession charges under section 18 and assured return is payable even atter due dare ofpossessjon is over till the date oicompletion otthe project, then the allottees sha be entitled to assured retu.n or delayed possession charges, whichever is higher without prejudice ro any other remedy includ,ng compensation.

He.ce, the authority directs the.respondent/promoter to pay assured return from the date the palr€nt ofassured return has not been paid riI completion oiconsrruction oibuilding ar rhe agreed rates per month and at agreed rate per month of iupir arei as mintmum guaranteed .ent up to 3 years from the date of completion ofthe sald build,ng or the said unit is put on lease whichever is earlier and declines to order payment of any amount on account of delayed possession charges as their interest has been protected by granting assured rerurns t,ll the compterion of the construction ofthe buildtng and thereafter also upro 3 years at different rate from the date oiconstruction ofrhe said building or the said unit is put on lease whicbever is earlier.

F.

Mitlgationcost 39.

The complainants are also seeking relief wr.t. lirigation expenses & compensation.

Hon'b1e Supreme Court ollndia in civilappeal nos.6745- 6?

49 of 2021 titled as M/s Newtech Promoters and Developers Pvt Ltit versus State olU.P. and Ors., 2021. rs., 2021.2022 (1) RCR (C) 357 has held rhat an allottee is entitled to claim compensation & litigation charges under sedions 12,14,18 and se€t,on 19 which is to be decided by the adjudicating officer as per section 71 and the quantum ofcompensarion HARERA GURUGRA]\I & litigation expense shall be adjudged by the adjudicarjng officer having due regard to the iacrors mentioned in sectjon 72.

The adjudicating offfcer has exclusive jurisdiction to deal with the complaints in respect of compensation & tegal advised ro approach rhe expenses.

Therefore, the complainants are adjudicat,ng offi€er for seeking the reUef of C.

Directions ofthe authority 42.

Hence, the authoriry hereby passes this order and issues the fo owing directions under section 37 oi rhe Act ro eDsure compliance of obligatjons cast upon rhe promoreras per the tuncrion entrusred ro the authoriry under secrion 34(D: i.

The respondent is directed to pay the arrears otnmount ofassu.ed return ar agreed rates to the complainant(s) in each case from rhe dates the payment otassured return has not been pard til rhe dare of completion of construction of building.

Afte. completion oi the construction otthe building, the responden t/b uilde. would be Iiable to pay monthly assu.ed returns ar agreed rate ofthe supe. are: up to 3years or tillthe unit is put on lease whichever is earlier. ji.

The respondent is atso directed to pay rhe outstanding accrued assured return amounr rill date at dre aSreed rate withjn 90 days from the dare oa order atrer adjusrmenr oi ourstanding dues, itany, i.om the complarnant(s] and raitj.g whjch that amounr would be payable with inreresr @8.700/0 p.a nll the date ofactuat realizatron. iii.

The respondenr shall execute rhe conveyance deed oi the aIotred unit within the 3 monrhs from the finatoffer ofpossession atongwith OC upon paymenr of requisire stamp dury as per norms oi rhe srate * _s_ 43.

4+. {THARERA dh eunuennvr jv. uennvr jv.

The respondent shall not €harge anything lrom the complainant(s) which is not the parr ofthe agreement ofsale.

Thisdecision shalt mutatis muEndis apply to cases mentioned in para 3 ofthis order.

Complaints stand disposed of True certified copjes ofthis order be placed on the casefile ofeach matrer 45.

Frles be consigned ro rhe regrs HARERA GURUGRAM \'l - y' vrtay KumarCoyal , Gurug.am *n{u*,"