MRS SUMEET JOHAL MR ADHIRAJ SINGH JOHAL AND SANDEEP SINGH JOHAL HUF vs VATIKA ONE ON ONE PVT. LTD.

1. * HARERA S-eunuennt'r Complaint no.

171 of 2022 BEFORE THE HARYANA REAL TATE REGULATORY AUTHORITY, GUR GRAM ORDER The present complaint has been filed by e complainant/allottees under and Development) Act,2016 [in l7l of 2022 complaint: 27.07.2022 29.O,-.2021 Date of d 14.07.2023 Mrs.

Sumeet lohal, Mr, Adhiraj Singh Johal Sandeep Singh Johal HUF All are R/o: 55-A, DLF colony, Sirhind Patiala-147004.

Complainants M/s Vatika Limited M/s Vatika One on One Pvt.

Ltd. address: A002, Inxt City Centre, GF, B Sector 83, Vatika India Next, Gurgaon-H 1.220t2.

Respondents Sh.

Ashok Sangwan Sh.

Sanjeev Kumar Arora Member APPEARANCE: Sh.

Gaurav Rawat Advocate for the complainants Sh.

Pankaj Chandola Advocate for the respondent section 31 ofthe Real Estate (Regulatio PaEe I of 29 CORAM: A.

2.

HARERA GURUGRAM short, the Act] read with rule 28 of the and Development) Rules,2017 (in sh section L1(4J(aJ of the Act wherein it promoter shall be responsible for all functions under the provisions of the . made there under or to the allottees executed inter se.

Proiect and unit related details The particulars of the project, the d( amount paid by the complainant[s), da possession, delay period, if any, have tabular form: |lo,ptr,",,-Efr#-.l Haryana Real Estate IRegulation ort, the Rules) for violation of is inter alia prescribed that the obligations, responsibilities and \ct or the rules and regulations as per the agreement for sale :ails of sale consideration, the e of proposed handing over the been detailed in the following s, No Heads lnformation 1.

Name and location of the project "One r Harya n One", Sector-16, Gurugram, la.

Nature ofthe project Comn ercial complex 3.

Area of the project 12.13 lCres 4.

DTCP License 05 of 015 dated 06.08.2015 valid upto 05.08 2020 Licensee name Kesha / Dutt & others 5.

RERA registered/ not resistered 237 o uDto ' 2Ol7 dated 2O-O9.2O17 valid 9.O9.2022 6.

Allotment letter 07.0c Argun 2019 (page 24 of written ent) 7.

Date of Application form 0 5. form 0 5.10 2018 (Page 46 ofcomplaint) 8.

Unit no.

P-868 admeasuring 500 sq.ft.

9.

Total consideration Rs.41 25,000 /- 10.

Total amount paid by the comDlainants Rs.27 72,000/- Page 2 of 29 B, 3.

4.

HAREIA GURUGRAI/ lco,rrplrl",*r1 "f ,0r, 11.

Date of offer ofpossession to the complainants Not ol lered 12.

Occupation certificate Not ol tained Facts ofthe complaint That the complainants while searching by such advertisements and calls from tl buying a house in their project namely total the complainants about the moon: and the representative of the respond about the project mentioned above ar delivered several such proiects in the Nr one brochure to the complainants whicl and in every possible way tried to hold t complainants for payments.

That relying on various representatior respondent and on beliefofsuch assurar in the project by paying a booking amour booking ofthe said unit bearing no.

P-86 measuring 500 sq. ft. to the respondents was acknowledged by the respondents.

Ihat the respondents sent aliotment complainant providing the details of the ofthe unit dated 11.10.2018, allotting a Sq.

Ft in the aforesaid project of tl consideration ofthe unit i.e., Rs.41,25,5 EDC and IDC, car parking charges and ot unit and providing the time frame withi br a commercial unit was lured e brokers ofthe respondents for "One on One".

The respondents hine reputation of the company )nt made huge representations d also assured that they have )R.

The respondent handed over showed the project like heaven he complainants and incited the s and assurances given by the ces, complainants booked a unit ftof Rs.27 ,72,000/- towards the ), in Sector 16, having super area dated 11.10.2018 and the same etter dated 07.06.2019 to the pro,ect, confirming the booking rnit no.

P-868 admeasuring 500 re developer for a total sale )0/-, which includes basic price, ler specifications of the allotted r which the next instalment was Page 3 of 29 was Thaj com of tt Sq. con!

EDC unit 6.

7.

8. t 6.

8.

HARERA M GURUGRAI/ to be paid.

The complainants vide b 11.10.201.8 applied for booking of the reminders and follow ups only that the the said allotment letter in year 2021.

As per assurance and on the bases of respondents assured of getting th agreement to sell within 30 days fro allotment letter i.e., 07.06.2019.

At the complainant was assured that the po delivered within the promised perio allotment letter i. e.,by 07 .06.2021.

That as per clause of the allotment lett make the payment of commitment amo per Sq.

Ft. per Month on super area allotment letter i.e.,07.06.2019 till the Further, as per clause of the booking respondents promised that post the com said building, the complainant would 131/- per Sq.

Ft. per month on super of completion of construction of said b Iease, whichever is earlier.

That as per clause of the booking ap agreed to put the said unit on lease @ to effectuate the same.

But till date resp honour the above said clause of the b leasing out the above said unit.

Complaint no.

171 of 2022 oking application form dated said unit.

Thereafter, repeated respondent provide the copy of he above said allotment letter builder buyers agreement/ the date of the above said ime of purchasing the unit, the session of the unit would be of 2 years from the date of , the respondents undertake to nt/assured return of Rs.

123.45 f 500 Sq.

Ft. from the date of mpletion of the unit for fit outs. plication dated11.10.2018 the letion ofthe construction ofthe paid committed return of Rs. for upto 3 years from the date ding or the said unit is put on lication form the respondents 131/- per sq.ft. per month and ndents has failed to abide and oking application form by not Page 4 of 29 HARERA *"GURUGRAM That as per clause 3 of the allotment I the complainants, that in event the said rental of less than the commitment a month, then the respondents agreed refunded amount calculated (ARs.

141. which the achieved rent is less than Rs. s than Rs. allotment letter, the respondents furth maintenance charges/ electricity ch charges from the complainant for the p charges would be paid by the prospecti That as per the said booking appli respondents were liable to handover th before 07.06.2021.

Therefore, the resp as per the prescribed rate as laid under the delay in the delivery and the co application form is also entitled to get the completion of the unit for fit outs a construction of the said building, comp return of Rs.

131/- per Sq.

Ft. per Mon from the date of completion of constru unit is put on lease, whichever is earli the respondent, based on the payment captioned unit already paid a total su said unit against total sale consideratio That it is pertinent to mention here th on 07.06.201-9, after coming into force Page 5 of 29 Complaint no.

17 1 of 2022 r the respondents guaranteed unit is leased at a gross monthly ount of Rs.

7311- per sq.ft. per at the complainant would get 8/- per sq.ft. for every Rs.

1/- by 31/- per sq.ft.

As per clause 3 of r agreed that there would be no / water charges etc. shall be iod unit is on lease and the said e tenant. tion and allotment letter, the possession ofthe said unit on or dents was liable to pay interest the Act, 20 l6 & Rules, 2017 tor plainant as per clause of the e monthly assured amount till d also post the completion of the inant would be paid committed on super area for up to 3 years on of said building or the said r.

As per the demands raised by Ian, the complainant to buy the of Rs.27 ,72,000 /- towards the of Rs.

41,25,000/-. allotment of the unit was made f the RERA Act,2016 and as per HARERA @ at tDl t^DA[, !i{d \JUI \ U\_/t\a1tV I the Act, after coming into force ofthe A on the carpet area ofthe unit and not o present case, the respondent has charg area i.e., 500 Sq.

Ft. @ Rs.8250 per Sq.

50 per Sq.

F oftheAct,2016 and Rules 2017 made t the provisions ofthe RERA Act, necessa against the respondent and direction respondent to charge on the carpet are unit.

The respondent has collected a without executing the buyer's agree respondents are also illegal and against 2017.

By falsely ensuring wrong deli timely delivery of possession, the com unethical/unfair trade practice as well guise of a biased allotment letter.

The parties clearly reveal that the "opposite indulging the unfair trade practices an deficient services and thereby causing and omissions on the part of the immeasurable mental stress and agony intentionally and knowingly induced an to the complainants and thereby maki misrepresentations, and owing to all th part of the respondent, the responde requisitioned/claimed by the complaina t PaEe 6 ol29 Complaint no.

171 of2022 the respondent can charge only the super area ofthe unit.

In the d the complainant on the super . which is against the provisions ereof.

Hence, in accordance with penal action is liable to be taken may kindly be passed to the instead ofthe super area ofthe prox.

Rs.

27,72,000/- till date ent.

Further, such acts of the e spirit ofAct, 2016 and Rules, ry Iies and falsely assuring the lainants has been subjected to subjected to harassment in the bove said acts of the opposite arties" with preiudice has been has also been providing gross ciency in services.

All such Act posite parfy has caused aid to the complainants.

By having having falsely mis-represented them to act in accordance to its deliberate lapses/delays on the ts are liable to make as being 13 C. 'J.4 && HARERA GURUGRAM It is abundantly clear that the responde complainant and have cheated them fra false promise that they would complete site within stipulated period and shall amount.

The respondents have further the contents of the allotment letter w complainant being aggrieved by the o activities, deficiency and failure in servi present complaint. complaint.

The complainant after losing all the h their dreams shattered of owning a r basic necessary facilities in the vicinity also losing considerable amount, are Authority for redressal of their grievan lll, lv.

Reliefsought by the complainants: The complainant has sought following i.

Direct the respondent to payth ii.

Direct the respondent to pay amount paid by the complaina Direct the respondent to execution of conveyance d physical vacant possession of Direct the respondents to exe respect of the unit in question i On the date of hearing, the authority promoters about the contraventions as 15.

Page 7 of 29 Complaint no.

77 | of 2022 ts have played a fraud upon the dulently and dishonestly with a e construction over the proiect be paying the monthly assured malalfidely failed to implement the complainant.

Hence, the ding misconduct, fraudulent ofthe respondents is filing the from the respondents, having mercial office space & having f the "One On One" project and constrained to approach the ief(s): monthly assured returns. terest at prevailing rate on the out the title registration/ of the unit and to handover e unit with immediate effect. a builder buyer agreement in favour of the complainant. lained to the respondents/ leged to have been committed 1-i HARERA MGUI?UGRAIU in relation to section 11(4) [a) of the a guilty.

Reply by t]re respondents The respondents have contested the co a.

That in the year 2015, the complaina project launched by the respondent Sector 16, Gurugram and visited the the details of the said project. the co the specifications and veracity of th satisfied with every proposal deem b.

That after having dire interest in the by the respondent the complainants form dated 05.10.2018 and paid a further registration on their own i evident that the complainants were the application form and agreed to protest or demur. c.

That on 07.06.2019, an allotment I for the unit bearing no.

P-868 admea sale consideration of Rs. ion of Rs.

41,25,000 complainants were well aware of the question was subject to be leased out was evidently mentioned and agre allotment letter dated.

The said co deemed to be leased out upon com Page I of29 Corr,plaint no.

17 1 ot 2022 to plead guilty or not to plead plaint on the following grounds. t learned about the commercial tled as "One on One" situated at ffice of the respondent to know plainants further inquired about commercial project and were necessary for the development. commercial project constructed booked a unit vide application amount of Rs.

5,00,000/- for gment and investigation.

It is re of each and everv terms of gn upon the same without any was issued to the complainants ring to 500 sq. yards for a total - in the aforesaid project.

The ct, that the commercial unit in post it completion and the same d by the complainants in the mercial unit in question was etion.

The complainants have HARERA RGURUGRAM mutually agreed and acknowledgm said unit the same would be leased o d.

The said application form clearlv sti admittedly contained a ,,lease clause circumstances it can be concluded b the complainants is not a consumer o e.

That the complainants are trying to facts which are detrimental to the co have approached the respondent as investment opportunities.

Therefore, contained a "lease clause:which em of complainant along with the other and doe not have possession clause f.

That the complainant has filed the wrong forum.

That the complainant is Returns" which is beyond the lurisdi been dressed with.

That from the bar clear that the said Act provides for th any dispute between a builder an development of the project as per the are provided under Section 1g of the any provision ofthe act.

That the said the allottee wants to withdraw from "interest for delay of every month,, continue in the project and the Iast one Page 9 of 29 Complaint no.

L77 of 2OZ2 nt rt.

OZ2 nt rt. that upon completion for the ulated provisions for ,,lease,, and In the light of the said facts and nd and reasonable doubt that allottee. islead the court by concealing plaint at hand.

The complainants an investor looking for certain said allotment ofthe said unit rs the developers to put a unit mmercial space unit on lease physical possession. resent complainant before the raying for the relief of"Assured on that this Ld.

Authority has perusal of the RERA Ac! it is kinds of remedies in case of buyer with respect to the eement.

That such remedies ERA Act, Z0L6 for violation of edies are of"Refund" in case e project and the other being n case the Allottee wanis to s for compensation for the loss ffHARERA #- a,tRUGRAl/ occurred by the Allottee.

That it is nowhere in the said provision the Ld. jurisdiction to grant,,Assured Reru g.

That the respondent cannot pay complainant by any stretch of Imagi laws.

Thaton 21.02.2019 the Central "Banning of Unregulated Deposits, unregulated deposjts, the,,Assured complainant fell under the scope of thi such returns became wholly illegal.

Th Banning of Unregulated Deposits referred to as "the BUDS Act,,) notifie force.

That under the said Act all the as "Assured Returns" have been ban strict penal provisions. h. [t is also provided that in respect of re the same meaning as assigned to it un Sub section 31 of section 2 of the "deposit" includes any receipl of mone in any other form by a respondent categories of amount as may be pres Reserve Bank of India.

One of the amounts as set out under su of the Deposit Rules (i.e. which is n accounted for in any manner whatso PaEe lO of 29 Complaint no.

777 of 2022 pertinent to note herein, that uthority has been dressed with e "Assured Returns,, to the tion in the view of prevailing ernment passed an ordinance 019", to stop the menace of urns Scheme" given to the Ordinance and the payment of later, an act by the name ,,The emes Act, 2019" (hereinafter on 37.07. on 37.07.201,9 and came into egulated deposit schemes such ed and made punishable with ndent, "deposit" shall have r the Companies Act, 2073. anies Act provides that by way of deposit or loan or but does not include such bed in consultation with the rule (lJ(c)(xii)(bJ of Rute 2 t a deposit) is an advance, , received in connection with & ffi HARERA GURUGRAM consideration for an immovable pr arrangement, provided that such ad property in accordance with the arrangement t.

Therefore, the agreements or any oth may, after 2018, and if any assu continued therewith may be in provisions of the BUDS Act.

The BU deposit schemes, namely Unregulated Deposit Schemes.

Thus, to fall foul of the provisions of th requirement of being a 'Regulated Unregulated Deposit Scheme.

Hence, is to provide for a comprehensive Deposit Scheme. k.

Further, any orders or continuation o or any directions thereof may be subsequent act passed post the RERA obligations or provisions of the RE obligation on a promoter against a banned, may be contrary to the centra to stop the menace of unregulated de l.

It is pertinent to note that the sche complainant would have no foun agreement, therefore the concerns ari Page ll of 29 Complaint no.

177 of 2OZ2 perty under an agreement or nce is adjusted against such rms of the agreement or the r understanding ofthese kinds, return is paid thereon or mplete contravention of the S Act provides two forms of Deposit Schemes and r any deposit scheme, for not BUDS Act, must satisi/ the posit Scheme' as opposed to e main object ofthe BUDS Act echanism to ban Unregulaied yment ofany assured return completely contrary to the which, is not violaring the Act.

Therefore, enforcing an ntral Act which is specifically Iegislation which has come up ir. es being harped upon by the tion in the builder buyer ing out of the same cannot be * HARERA ffi eunuennvr ad,udicated by this authority.

The become illegal. e illegal.

It is noteworthy in th to provide a comprehensive mech deposit schemes, other than the depo of business, Parliament has passed Unregulated Deposit Schemes Act, 2 "BUDS Act"). m.

It is pertinent to note herein that the challenges in the seamless exEcution project had deferred due to various r respondent which directly affected Demonetization and GST resulted in and sluggishness in the real estate s no cash circulation in the market timely payments to the labourers an the construction.

Further, the NGT vi complete ban on construction activi further caused serious damage to challenges the respondent is trying hi pro.iect well within the timeline a registration.

That the current covid-1.9 pandemic the proiect with no available labo construction of the Proiect.

The Mi n. notification dated March 24,2020 b Page 12 of 29 Complaint no.

171 of 2022 Assured Returns" scheme has present situation, that in order nism to ban the unregulated its taken in the ordinary course act titled as "The Banning of 19" (hereinafter referred to as spondents have faced various f the present project.

That the sons beyond the controlofthe the execution of the project. a serious economic meltdown or.

That the respondent, with e respondent could not make the contractors which stalled e its order dated 09.1,1,.2017 a s in around Delhi-NCR which proiect.

Despite the various level best to complete the said declared during the time of ted in serious challenges to rers, contractors etc for the ry of Home Affairs, GOI vide aring no.

40-3 /2020-DM-I{A) && HARERA GURUGRAI/ recognised that India was threaten pandemic and ordered a complete lo an initialperiod of2l days which s of various subsequent notifications, t further extended the lockdown fro same continues in some or the oth Various State Governments, includi have also enforced various strict me including imposing curfew, lockd rl|l{orrn activities, stopping all constructio issuance of advisory by the GOI vide 13,2020 regarding extension o xtension of regi under the provisions of the RERA A the Haryana Real Estate Regulatory registration and completion date b proiects whose registration or com supposed to expire on or after March o.

In past few years construction ac repeated bans by the Courts/Tribuna in Delhi-NCR Region. [n the recent pa (Prevention and Control) Authority, bearing no.

EPCA-R/201,9 /L-49 dt 2 activity in NCR during night hours (6 30.10.2019 which was later on con 1.1.1.2079 to 05.11.2019 by EpCA vi R/2019 /L-53 dated 01.11.2019.

171 of2022 with the spread of Covid-19 down in the entire country for on March 25,2020.

By virtue e Ministry of Home Affairs, GOI time to time and till date the r form to curb the pandemic. the Government of Haryana sures to prevent the pandemic stopping all commercial activities.

Pursuant to the ffice memorandum dated May ations of real estate proiects 2016 due to "Force Majeure", thority has also extended the 6 months for all real estate on date expired and or was 5,2020. ties have also been hit by /Authorities to curb pollution the Environmental Pollution R (EPCA) vide its notification 10.2 019 banned construction to 6 amJ from 26.10.2019 to rted to complete ban from e its notification bearing no.

Page 13 of 29 t7.

E.

18.

HARERA MGURUGRAM The Hon'ble Supreme Court of India passed in writ petition bearing no.

1 vs Union of India" completely b Delhi-NCR which restriction was pa 09.1.2.201,9 and was completely lift vide its order dated 14.02.2020.

T labourers to return to their native to acute shortage of labourers in the shortage the construction activity even after the lifting of ban by the H the normalcy could resume the pandemic.

Therefore, it is safely concl seamless execution of the project was circumstances and the said period p. computing the delay.

Copies of all the relevant documents record.

Their authenticity is not in dispu decided on the basis of these undispu made by the parties. e parties. furisdiction of the authority The respondent has raised preliminary of authority to entertain the present co fhat it has territorial as well as subject m ihe present complaint for the reasons giv E.

I Territorial iurisdiction ide its order date d 04.17.20j,g 029 /1985 tirled as ,,MC Mehta all construction activities in modified vide order dated by the Hon'ble Supreme Court ese bans forced the migrant s/states/villages creating an CR Region.

Due to the said ld not resume at full throttle n'ble Apex Court.

Even before d was hit by the covid:i9 ed that the said delay ln the due to genuine force majeure shall not be added while been filed and placed on the Hence, the complaint can be documents and submission iection regarding iurisdiction laint.

The authority observes tter jurisdiction to adjudicate rl n below.

Page 14 of 29 Complaint no. i,77 of 2022 L9 20, HARERA M GURUGRAI/ As per notification no. t/92/2017-tT Town and Country planning Departmen Estate Regulatory Authority, Gurugram for all purpose with offices situated in G proiect in question is situated within District.

Therefore this authority has co deal with the present complaint.

II Subiect-matter iurisdiction Section 11(41(a) of rhe Act, Z0t6 pro responsible to the allottee as per agree reproduced as hereunder: Section 11(4)(a) Be responsible for all obligations, r under the provisions ofthis Act or the thereunder or to the allottees as per the the qssociation ofollottees, qs the case ofall the opartments, plots or buildings, ollottees, or the common areas to the the competent authority, os the case The provision of ossured returns is pa agreementl as per clause 15 of the B the promoter is responsible Jbr all ob and functions including poyment of a in Builder Buyer's Agreernent.

Section 34-Functions of the Authority: 344 of the Act provides to ensure compli upon the promoters, the allottees and th this Act and the rules and regulations ma So, in view of the provisions of the A authority has comp y has complete jurisdiction to non-compliance of obligations by 21.

Page 15 of 29 Complaint no.

171 of 2022 P dated 74.12.2017 issued. by Haryana the iurisdiction ofReal hall be entire Gurugram District rugram.

In the present case,.the e planning area of Gurugram plete territorial jurisdiction to es that the promoter shall be ent for sale.

Section 11(4)ia)lis nsibilities and functions s ond regulotions made t for sale, or to bq tillthe conveyance the case may be, to the iation of allottees or of the builder buyer's dlted.........

Accord ing ly, tio n s/ r es pon s i b i I iti e s red returns as provided ce ofthe obligotions cqst real estate agents under thereunder. of 2016 quoted above, the ide the complaint regarding promoter leaving aside && GURUGRAI/ HARERA compensation which is to be decide pursued by the complainant at a later s Findings on the reliefsought by the F.l Assured return While filing the petition besides del allotted unit as per clause 3 ofthe appli sought assured returns on monthly b mentioned therein till the completion the respondent has not complied with allotment letter.

Though for some tim was paid but later on, the respondent a plea of the Banning of Unregulated D after referred to as the Act of 2019J.

But payment of assured returns even afte payments made in this regard are prot above-mentioned Act, However, the pl who took a stand that though it paid th the year 2 018 but did not pay the same the Act of 2019 as it was declared ill The Act of 2016 defines "agreement entered into between the promoter an agreement for sale is defined as an ar promoter and allottee with freewill and agreement defines the rights and lia promoter and the allottee and mar relationship between them.

This contr Page 16 of29 Complaint no.

171 of 2022 by the adjudicating officer if mplainant: yed possession charges of the tion form, the claimant has also s as allotment letter at the rates f the building. building.

It is pleaded that e terms and conditions of the the amount of assured returns sed to pay the same by taking osit Schemes Act, 2019 (herein hatAct does not create a bar for coming into operation and the as per section 2(4)(iii) ofthe of respondent is otherwise and amount of assured returns upto unt after coming into force of r sale" means an agreement the allottee [Section 2[c)].

An angement entered between the consent of both the parties.

An ilities of both the parties i.e., the start of new contraiual ctual relationship gives riie to HARERA M GURUGRAI/ future agreements and transactions b payment plans were in vogue and I agreement for sale.

One of the integr transaction of assured return inter_se after coming into force of this Act (i prescribed form as per rules but this "agreement" entered between promoter force of the Act as held by the Hon Neelkamal Realtors Suburban India & Ors., (Writ petition No.

2732 .

Since the agreement defines the buyer- it can be said that the agreement fo promoter and allottee arises out of the can be said that the real estate re jurisdiction to deal with assured relationship arise out of agreement for parties as per the provisions ofsection 1 provides that the promoter would be under the Act as per the agreement conveyance deed of the unit in favour o arise for consideration as to: i.

Whether the authority is within i earlier stand regarding assured re and circumstances, Complaint no.

171 of2O22 een them.

The different kinds of within the meaning of the I part of this agreement is the arties.

The "agreement for sale,, ., Act of 2016J shall be in the of 2016 does not rewrite the nd allottee prior to coming.into e Bombay High Court in case Limited and Anr. v/s Union of 2017) decided on 06.12.2077. moter relationship therefore, assured returns between the ame relationship. ationship.

Therefore, it atory authority has complete rn cases as the contractual Ie only and between the same [4)[aJ of the Act of 2016 which ponsible for all the obligations for sale till the execution of the allottee.

Now, three issues jurisdiction to vary its rns due to changed facts Page 17 of 29 24 HARERA ffiGURUGRAM 11.

Whether the authority is compete to the allottee in pre-RERA cases, into operation, Whether the Act of 2019 bars pa the allottee in pre-RERA cases While taking up the cases of Brhimj Apartments PvL Ltd, (comptaint no Singh & Anr, Vs.

Venetain LDF projects authority that it has no jurisdiction to d Though in those cases, the issue of paid by the builder to an allottee but a were brought before the authority nor allottees that on the basis of contra obligated to pay that amount.

However, view from the earlier one if new facts an adjudicating authority or the court.

T overruling" and which provides that the I to the cases arising in future only and its have attained finality is saved because hardship to those who had trusted to i regard can be made to the case of Sa Aggarwal Appeal (civil) 1058 of 200 wherein the hon'ble apex court observ the plea raised with regard to maintaina of earlier orders of the authority in not different view from the earlier one on th Page lB of 29 Complaint no.

171 of2O22 t to allow assured returns r the Act of 2016 came ent of assured returns to & Anr.

Vs.

M/s Landmark a1 of 2018), and Sh.

Bharam (supro.), it was held by the I with cases ofassured returns. red returns was involved to be that time, neither the full facts it was argued on behalf of the al obligations, the builder is ere is no bar to take a different law have been brought be?ore ere is a doctrine of"prospective w declared by the court applies applicability to the cases which repeal would otherwise Woik existence.

A reference in this n Kumar & Anr Vs.

Madan Lal decided on 06.02.2003 and as mentioned above.

So, now lity ofthe complaint in the'face nable. ace nable.

The authority can take a basis of new facts and law and HARERA MGURUGRAM the pronouncements made by the apex settled preposition of law that when pa and parcel of builder buyer's agreemen document or by way of addendum , m terms and conditions of the allotment of to pay that amount as agreed upon and to pay the amount of assured return. defines the builder-buyer relationshi agreement for assured returns betwee arises out of the same relationship agreement for sale.

Therefore, it can complete jurisdiction with respect to contractual relationship arises out of between the same contracting parties to in hand, the issue of assured returns obligations arising between the parties.

Land and Infrastructure Limited & Anr.

Petition (Civil) No.43 of 2019J decided by the Hon'ble Apex Court of the land th into "assured return/committed r developers, whereby, upon payment of a sale consideration upfront at the time developer undertook to pay a certain a basis from the date ofexecution of ofpossession to the allottees". ttwas fu developers under assured return scheme Page 19 of 29 Complaint no.

171 of2022 ourt of the land.

It is now:rjvell ent of assured returns is part fmaybe there is a clause in that orandum of understanding or unit), then the builder is liable n't take a plea that it is not liable oreover, an agreement for sale So, lt can be said that the the promoter and an allotee d is marked by the originil e said that the authority has assured return cases as the e agreement for sale only and agreement for sale.

In the case on the basis of contraiiual Then in case of Pioneer Urban /s Union of India & Ors. (Writ 09.08.2019, it was observed t "...allottees who had enterbd s' agreements with these substantial portion of the total f execution of agreement, 'the unt to allottees on a monthly ent till the date ofhanding iiver er held that'amounts raised by had the "commercial effect of HARERA P* GURUGRAM a borrowing' which became clear from which the amount raised was aised was shown as " head "financial costs".

As a result, such al creditors" within the meaning of sectio treatment in books of accounts of the p income tax.

Then, in the latest pronou Jaypee Kensington Boulevard Apartmen vs.

NBCC (lndia) Ltd. and Ors. [24.03.20 the same view was followed as taken ea Land Infrastructure Ld & Anr. with re returns to be financial creditors within Code.

Then after coming into force the builder is obligated to register the proj ongoing project as per proviso to section rule 2[oJ of the Rules, 2017.

The Act o writing of contractual obligations be Hon'ble Bombay High Court in case Neel Limited and Anr. v/s Union of lndia & the respondent/builder can't take a ple obligation to pay the amount of assured Act of 2016 came into force or that a n with regard to that fact.

When there is against an allottee to pay the amount o wriggle out from that situation by taking of 2016, BUDS Act 2019 or any other la Complaint no.

171 of 2022 e developer's annual returns in mmitment charges" under the tteeswere held to be "financial 5(7) of the Code" including its moter and for the purposes of cement on this aspect in case Welfare Association and Ors.

1-SC): MANU/ SC/0206 /2021, ier in the case ofPioneer Urban rd to the allottees of assured e meaning ofsection 5(7) ofthe of 2016 w.e.f 01.05.201.7, the ct with the authority being an [1] oftheAct of 2017 read with 2016 has no provision for re- n the parties as held by the mal Realtors Suburban Private (supra] as quoted earlier.

So, that there was no contractual returns to the allottee after the agreement is being executed an obligation of the promoter assured returns, then he can't a plea ofthe enforcement ofAct PaCe 20 of 29 26. # HARERH ffiaJRUGRAM It is pleaded on behalf of respondent/b Unregulated Deposit Schemes Act of 201 for payment of assured returns to an allo this regard is devoid of merit. of merit.

Section 2( defines the word ' deposit' as on omount advance or loan or in any other form, by a to return whether after a specified period kind or in the form of a specified service the form ofinterest, bonus, profit or in any i. an amount received in the course of, or and bearing a genuine connection to ii. advance received in connection immovable proper$t under an agreem to the condition that such advance immovable property as specified in arrangement.

4. perusal of the above-mentioned defini .hat it has been given the same meani Jompanies Act, 2013 and the same provid rny receipt by way ofdeposit or loan or i lut does not include such categories of a :onsultation with the Reserve Bank of I lompanies (Acceptance of Depositsl Rule leposit which includes any receipt of mon n any other form by a company but does i. os o advance, dccounted for in any received in connection with co immovable property Complaint no, 77 7 of 2022 ilder that after the Banning of came into force, there is bar .

But again, the plea taken in I of the above mentioned Act tf money received by way of an ty deposit taker with a promise otherwise, either in cash or in with or without dny benefrt in ther form, but does not include r the purpose of, business business including- consideration of an t or arrangement subject is adjusted against such rms of the agreement or n of the term 'deposit' shows as assigned to it under the under section 2[31) includes any other form by a company ount as may be prescribed in dia.

Similarly rule 2(cJ of the , 2014 defines the meaning of y by way ofdeposit or loan or ot include. anner whatsoever, ideration for an Page 2l of 29 27.

29. ffi HARERA ffiGuRUGRAM ii. as an advance received and as all regulator or in accordance wtth di State Government; So, keeping in view the above-mention and the Companies Act 2013, it is to be s entitled to assured returns in a case whe amount of sale consideration against th builder at the time of booking or immed upon betwe upon between them.

The Government of India enacted the B Schemes Act, 2019 to provide for a comp unregulated deposit schemes, other than course of business and to protect the matters connected therewith or inciden (4J ofthe BUDS Act 2019 mentioned abo It is evident From the perusal of sec mentioned Act that the advances consideration of an immovable pro arrangement subl'ect to the condition th against such immovable property as sp or arrangement do not fall within the te banned by the Act of 2019.

Moreover, the developer is also bound this doctrine, the view is that if any pe promisee has acted on such promise an 30. person/promisor is bound to comply wit Page 22 of 29 Complaint no.

177 of 2022 by qny sectoral of Central or tions provisions of the Act of 2019 en as to whether an allottee is e he has deposited substantial allotment of a unit with the ately thereafter and as agreed nning of Unregulated Deposit hensive mechanism to ban the deposits taken in the ordinary terest of depositors and for thereto as defined in section 2 ion 2(4)(l)(iil of the above- ceived in connection with under an agreement or t such advances are adjusted fied in terms of th" "gr".r"ni of deposit, which have been promissory estoppel.

As per n has made a promise and the altered his position, then the his or her promise.

When the 31. ffHARERA S- arnLnqnM builders failed to honour their commi filed by the creditors at different forums Urban Land qnd lnfrastructure whi government to enact the Banning of Un 2079 on 31.07.2019 in pursuant to the Scheme Ordinance, 2018.

However, the m to whether the schemes floated earlier assured returns on the basis of allotme abovementioned Act or not.

A similar issu Hon'ble RERA Panchkula in case Bald Private Limited (RERA-PKL-2068-20 1 1.L.03,2020 that a builder is liable to pay complainants till possession of respecti over and there is no illegality in this re The definition of term 'deposit' as given same meaning as assigned to it under section 2(4)(ivJ(i) (4)(ivJ(i) i.e, explanation to s powers conferred by clause 31 of section sub-section 1 and 2 of section 469 of the with regard to acceptance of deposits by the year 2014 and the same came into fo of deposit has been given under section Rules and as per clause xii [bJ, as advanc whatsoever received in connection with property under an agreement or arrange adjusted against such property in a Page 23 of 29 Complaint no.

171 of 2022 ents, a number of cases were ttch as Nikhil Mehta, Pioneer ultimately led the central gulated Deposit Scheme Act, ing of Unregulated Deposit t question to be decided is as the builders and promising as t of units are covered by the for consideration arose before Goutam VS Rise Projects l) where in it was held oir onthlv assured returns to the e apartments stands handed n the BUDS Act 2019, has the e Companies Act 2013, as per b-clause (iv).

In pursuant to 2, section 73 and76 read with ompanies Act 2013, the Rules he companies were framed in on 01.04.2014.

The definition 2 (c) of the above-mentioned , accounted for in any manner nsideration for an immovable ent, provided such advance is ordance with the terms of ffiIABERA ffi eunuenRu agreement or arrangement shall not be a to this provision as well as to the amoun 'd'and the amount becoming refundable the reasons that the company accepti necessary permission or approval when or properties or services for which the m received shall be deemed to be a deposit same are not applicable in the case ln ha there is no necessary permission or consideration as advance and would be clause 2(xvJ(bl but the plea advanced in First of all, there is exclusion clause to se that unless specifically excluded under t received by the companies or the builde deposits but w.e.f .29.06.2016, it was p as such would not be deposit unless s clause. s clause.

A reference in this regard may b schedule of Regulated Deposit Schemes the Act of 2019 which provides as under: (2) The following shall also be treated a under this Act namely:- (a) deposits accepted under any scheme, with any regulatory body in lndia con a stqtute; and (b) any other scheme as moy be notified under this Act.

The money was taken by the builder allotment of immovable property and it 32. within a certain period.

However, in view Page 24 of 29 Complaint no.

771of 2022 eposit.

Though there is proviso received under heading'a' and ith or without interest due to the money does not have r required to deal in the goods ney is taken, then the amount nder these rules.

However, the d.

Though it is contended that approval to take the sale idered as deposit as per sub- this regard is devoid of merit. on 2 (xivl(bl which provides is clause.

Earlier, the deposits as advance were considered as ded that the money received ecificallv excluded under this given to clause 2 of the First med under section 2 [xv] of Regulated Deposit Schemes an arrang eme nt reg istered ituted or estoblished under by the Central Government deposit in advance against possession was to be offered of taking sale consideration by 34. tr HARERA #-eunuennn,l way of advance, the builder promised ce returns for a certain period.

So, on his fa the allottee has a right to approach the grievances by way of filing a complaint.

It is not disputed that the respondent is a not obtained registration under the A question.

However, the project in which by the developer from the allottee is an 3(1) of the Act of 2016 and, the same wo the authority for giving the desired rel initiating penal proceedings.

So, the amo the builder is a regulated deposit accept against the immovable property to be On consideration of documents availab made by parties, the complainants monthly basis as per one of the provisi agreed rates i.e., 120. i.e., 120.28/- till the date observed by the Authority that the cla provides for a rate for assured return building.

Inthe instant complaint, the assured return plan.

However, the applic clause wherein providing any rate for p allottee after completion of the building. buyer's agreement of similar project it sq.ft. per month on super area for upt completion of construction of buildin Page 25 of 29 Complaint no.

177 of 2022 in amount by way of assured lure to fulfil that commitment, authority for redressal of his al estate developer, and it had of 2016 for the project in e advance has been received ngoing project as per section d fall within the jurisdiction of to the complainant besides nt paid by the complainant to by the later from the former ferred to the allottee later on. e on record and submissions sought assured return on ns of application form at the f completion of building.

It is dealing with assured return be paid till completion of the bject unit is booked under tion form does not speciff any ment of assured return to the ereas as per similar situated rovides a rate of Rs.131/- per three years from the date of or the unit is put on lease 35.

36. ff HARERA ffi aJRuGRATr,l whichever is earlier.

Keeping in view th booked under assured return plan and paying assured return at a specified building, itwould be safe to concludeth drafting the said ofRs.131/- per sq.ft..

Th from similar situated agreement.

Thou assured returns was paid but later on, th same by taking a plea ofthe Banning ofUn 2019.

But that Act does not create a bar even after coming into operation and th are protected as per section 2[4)[iiiJ of Accordingly, the promoter is liable to pa period as specified under the clause 3 0 5.10,2 018.

F.Il Conveyance deed Section 17 (11 of the Act deals with conveyance deed executed and the same "17.

Trqnsler of title.- (1). tle.- (1).

The promoter shall execute a registe favour of the allottee along with the undivid the common oreos to the association ofthe al authority, as the case may be, ond hand over of the plot, aportment ofbuilding, as the case ond the common oreos to the association competent outhority, as the case moy be, in a the other title documents pertaining thereto as per sanctioned plons as provided under the Provided that, in the absence of any local la fovour of the ollottee or the ossociation competent authority, as the case may be, un Complaint no.

17l of 2022 fact that the subject unit was respondent-builder has been te even after completion of might be some omission while refore, the clause is to be taken for some time, the amount of respondent refused to pay the gulated Deposit Schemes Act, r payment of assured returns payments made in this regard above-mentioned Act. assured return of the unpaid f the application form dated uty of promoter to get the s reproduced below: conveyance deed in proportionote title in ttees or the competent e physicol possession ty be, to the allottees the qllottees or the al estLte project, and ithin specned period locol laws: ,, conveyonce deed in the allottees or the r this section sholl be Page 26 of 29 37.

38.

HARERA GURUGRA[/ carried out by the promoter within three m of occupo ncy ce rtili cate." OC of the unit has not been obtained ot be executed without unit come in roof of having obtained OC from the co eed of declaration by the promoter befo .lII Execution of buyer's agreement project by the name of One on One situa eing developed by the respondent.

Th bout the same and booked a unit in it hey paid an amountof Rs.27,72,000 /-. he Authority seeking relief w.r.t. executio rties.

The Authority observes that si sured return scheme the complainan unt towards consideration of tion 13 (1) lays down that the responde 070 of sale consideration. ideration.

The relevant p Section 73: No deposit or advance p rom ote r without lirst en tering inao 73(7) A promoter shall not accept a sum centofthe cost ofthe apartment, plot, or b may be, os an advonce payment or an qp o person withoutfirst entering into a wri sale with such person and register the sole, under any low for the Lime being in ence, keeping in view the provision ofse spondent is directed to get the buyer's 39. e parties within 15 days of the date of s order.

Page Z7 of 29 Complaint no.

77 1 of 2022 Irom date of issue accordingly conveyance deed existence for which conclusive petent authority and filing of registering authority. d in sector 16, Gurugram was complainant came to know Rs.

41,2 5,000/-against which complainant has approached of buyer's agreem ent inter se the unit was booked under has already paid the entire unit.

The Act of 2016 under t shall not received more than rtion reproduce here: be taken by t for sale. ore than ten per ilding as the case licotion fee, from n 0greementfor id ogreement for on 13 (1J ofthe Act, 2016 the executed between agreement G.

40.

HARERA GUl?UGRAI/ Directions of the authority Hence, the authority hereby passes this irections under section 3 7 ofthe Act to st upon the promoter as per the fun der section 34(fJ; The respondent is directed to pay assured return at agreed rate to the date the payment of assured return date of completion ofconstruction ofb oF the construction of the building, would be liable to pay monthly assu of the super area up to 3years or till whichever is earlier.

The respondent is also directed to pay assured return amount till date at th days from the date of order after ad dues, if any, from the complainant amount would be payable with inte date of actual realization.

The Authority directs the respondent agreement executed between the pa The respondent shall execute the allotted unit within the 3 months possession along with OC upon pa duty as per norms of the state govern Page 28 of29 Co 28 of29 Complaint no.

177 of 2022 rder and issue the following ure compliance of obligations on entrusted to the authority e arrears of amount of omplainant[s) from the not been paid till the ilding.

Aft er completion e respondent/builder d returns at agreed rate the unit is put on lease e outstanding accrued agreed rate within 90 ustment of outstanding and failing which that @8.700lo p.a. till the uilder to get the buyer's s within 15 days. nveyance deed of the om the final offer of ent of requisite stamp ent HARERA 4L.

42.

E GURUGRAI/ Kumar Arora) Member Complaint no.

171 of 2022 The respondent shall not chargp anything from the complainant(sJ which is not the part (f the agreement of sale. plaints stand disposed of. be consigned to registry.

Irl HART GURUGR Page 29 of 29 ae* (Ash6k Safgwan) Member Haryana Real Estate Regufatory Authority, Gprugram