SAROJ GUPTA vs VATIKA ONE ON ONE PVT. LTD.

fl.m.La,ntno 1292 of 2022 & 5 othcrs order pronouhred onl 30.05.2023 rule 28 ofthe Haryana Real Estate [Regulation and Development) Rules, 2017 (hereinafter referred as "the rules"l lorviolation ofsection 11[4)(a) olthe Act where,n it is ,nter alia prescribed that the promoter shall be responsible for all its obligations, responsibilities and functions to the allotteesaspertheagreementlorsaleexecutedintersebetlveenparties.

CRAunder section 31 oithe Real Estate (Regulation t,2016 [hereinafterreferred as theAct") read with ffiHARERA S-cltnltcnnu BEFORE THE HARYANA REAL ESTATE REGUI-IITORY AUTHORITY, GURUGRAM Saroj GuptavsVatika oneone one ChhaviCupuvs one onc on.

Pvr cR/ 1317 /2022 c R/ 1319 /2022 cR/ 1124 / 2021 cR/1122/20 CORAM: SIEFEo9 -1 9HARERA #- GURUGRAM C.mblaintnn 1292 of2022 & q.rher!

2.

The core issues emanating from them are similar in nature and the complainant(s) in the above referred matters areallottees olthe project, narnely, Vatika One on One (commercial complex) beingdeveloped bythe same respondent/promoter i.e., Vatika Ltd.

The terms and conditions oi the application form fulcrum ofthe issue jnvolved in allthecases perra,ns to tailure on the part of the promoter to deliver timely possession of rhe units in question, seeking award ofassured return and the executjon oi the conveyance deeds.

3- The details ofthe complain atus, unit no., date of application, assured return claus te, total sale consideration, Proi€ct Vatika On. on O Claus€ 2 ofApplication Assured return paid @12 till..h.l-"ri.n.irhebri lP.3' 4.

The aforesa,d promoter on . between the pa the possession mplainants against the lication form ex€cuted rit for not handing over ol delayed possession ia. application io. non- Part oi the promoter by th, fr vt drr(, cIdrtsc5, a5sureu 5.

Ithasbeen decidr compliance of s trealthe said complai :oru oblisations on 6. *HARERA S-arRuGRAI/ Complaint.o.

1292 of 2022 & 5 othe.s /respondent in te. ent in te.ms of section 34(fl of the Act which mandates the authority to ensure compliance ol the obligations cast upon the promoters, the allottee(sl and the real estate agents under the Act, the rules and the reeulations madethereunder.

Thefacts of all thecomplaintsfiledbythecomplainanr(s)/allotteeG)are also sim,lar.

Out ofthe above-mentioned case, the part,culars oflead case cR/1292/2O22 Saroj Cuptti Vs Vatika One on one PvL LU. arcbeinl taken into cons,deration for determining the rights otthe allottee(sl qua delay possession charges, assured return, execution of conveyance deeds.

PHARERA S- cuRUGRAN4 Complaint no.

1292 of2022 & 5 others A.

Proiectand unitrelated detalls 7.

The particulars oithe project the details ofsaleconsiderarion, the amount paid by the complainant(s), date of proposed handing over the possession, delay period, ii any, have been deta,led in the following CR/|292/2O22 Saroi Gupta vs vatika One on One Pvt.

Ltd.

1 Name and location ot theffi; o*'l s""*'to, c'-e"u., 2 3.

L& of 2015 daied 06 08 2015 05.08.2020 5 23 '2017 da 9.09.201 t€d 20.09.2017 valld 2 6 Allormot l\A \ )3.

018 [page 18 olmnrplaint] 7.

P-723 admeasurjng 500 sq.ft Assured return clause F U GUR e. aree will commence of 70% of Basic Sale us f.omyou, in te.ms of /schedule of payments byyou and willbe paid till the completion ofthe construction of the said building.

Post completion of construction ol the said buildinB you will be paid committed return of Rs.

131/- per sq.ft. per month on super area for upto three years from the date of conpletion of construction of the said building or the said unjt is put on lease, Bs 41,25.000/.

10.

Totalamount paid by the Rs.

12.34,000/ 11.

Date of offer of possession to the 12.

O..un.iion.errifi.rt.

B, 8.

9HARERA S- crnrc+nl,r tacts ofthe complalnt That the complainant trustin commercialspace and measuring area o1500 rhe Vabka Lrmr(ed pr Complaint no.1292 of2022 & 5 others on the respondent had booked a ear,ng unit no. g unit no.

P-723 indkating tment lefter dated 05.03.2018 in ika One on One" situated ar: s.eco.ded in the said aforesaid comnrercial sq.

F Sector'16 in Gu 9. payment plan wi 4,95,000/- towards still the comDlaina.t hasn e assured return linked Rs.

41,25,000/-and Rs. tion of Rs.46,20,000/ but ny buyer agreement or any other 32,34,000/- has been paidand Rs.

13,86,000/' ,s st,llpendingand would be payable at the tine ofpossesslon by the complainant.

That as per allotment letter dated 06.03.2018 issued by the respondent aga,nstthe afo.esaid commercial p.operty, it has to pay Rs.130.15/-per sq. ft. per month on 500 sq. ft. area which comes to Rs.

65,075l-as an assured returD to the intendingthe complainantfrom the date ofreceipt ofpro data payment to tillthe date ofcompletion ofconstruction of said unit building or the said unit put on lease, whichever is earlier as per agreenrent lor the said comme.cial prope.ty paymcnt, as anrou.ting Rt had made Davment a lrHARERA S-arnLrcnnrr,r to h onour its commitmen ts returns as per contract an Complarntno 1Z92ofZ02?& 5 orhe6 ll allotment letter the assured return ch€ques by the respondent co. would bepayable subjectto deduction ofTDS as perrates prescribed under the Income Tax Act, 1961.

That the respondent has paid assured return amount to the complainant only for the period we.f.

08.02.2018 to 30.09.2018.

She attempted to contact the respondent on several occas,ons.

Howeve., the complainant ent to make payment oi assu red title documents of the unit in 500 sq. ft. area favour ot the complai r peaceful possession of the ent has assu.ed to the n assured returnon the ndent fails to pay the . since the resDondent ade a.d lefters issued bv o honour its obligations as t was constrained to issue a legal the complainant req per rhe allotmenr letter. th 12- That the subject matter ol claim laus within the jurisdiction ot the Author,ty.

The sa,d project is registered with the Authority.

Authority.

The registration certiffcate is app€nded hereto furthermore, the said project is situated, and cause ofaction has arisen within the ordinary territorial s.130.15/-per sq. jurisdiction of the Authority.

Hence, the Autho rity has got the jurisdiction to try and decide the present complaint.

C.

Relief sought by the complainantsl Thecomplainanthassoughttollowingreliei(sl: i.

Di.ect the respo.de.t to handover ol peaceful possession of unit no. p-723, indicating measuriDg area of500 sq. ft. ffHARERA S-cLrnLnnnvr ii Complaint no.1292 o12022 & 5 others Direct the respondentto execute tide documents in favourolthe 65,075/ P 7231 in relation to section guilty. the unit no.

P-723, indicating aynent of, pending period q.it. which comes to Rs. iate interest lor unit no. q it. d to the respondents/ to have been committed lead guilty or not to plead 13.

D.

Replyby the respondents The respondentshave contested the complainton the following grounds. a.

That in the year 2018, the complai.ant learned about the commerclil project launched by the respondent titled as "One on One" situated at Sector 16, Curugram and visited the office ofthe respondent to know the details ofthesaid project. the complainants turtherinquired about th€ specifications and veracity of the commercial project and were satisfiedwith everyproposal deemed necessary f,or the development. onrh along with a IPHARERA S-cLrnucnnl,r Complarnt no.1292 ot2022& 5 others b.

That after having dire interest in the commercial project construct€d by the respondent the complainants booked a unit vide appli€ation form dated 08.02.108 on his own judgment and investigation.

It is eudent that the complainants were aware of each and every terms of the application form and agreed to sign upon the same without any c.

That on 06.03.201a,an allot letterwas issued to the complainants for the unit bearing no.

P- uring to 500 sq. yards for a totrl sale .onsideration of Rs. / rn the aforesaid proiecr. d proiecr.

The that the comnrercialunit in ompletion and the same e compiarnants rn rhe mutually agree upon complenon Ior the unit in question was he complainants have . lffi ':ill'ff tff"lr"ffilt:ffi :[::il:::, ::: circumstances gUIq,Ug PAA$irt,""""nabre doubt that the complainants is not a consumer or allottee. e.

That the complainants are trying to mislead the court by concealing facts which are detrimental to thecomplaintathand.The complainants have approached the respondent as an investor looking for c€rtain investment opportunities.

Therefore, the said allotment of the said unit contained a "lease clauser which empowers the developers to puta unit /ledgrnent that ted.

Th€ said comm *HARERA S-alRuGRAN/ Complarnr no.1l92 of2022 & I orhers of complainant along with the other commercial space unit on lease and doe not have possession clause for physical possession. t That the complainant has filed the present complainant before the wrong forum.

Thatthe complainantis praying lorthe reliefof"Assured Rerurns" which is beyond the jurisdiction that this Ld.

Authority has been dressed w,th.

That from the bare perusal of the RERA Act, it is clear that the said Act provi or three kinds ofremedies in case of '. and buyer with respect to the development of the proje e agreement.

That such remedies Ac!

2016 for violation of ies are of"Refund" in case ct and the other bejng the Allottee wants to mpensation for the loss ent to note here,n, that orrry has been dressed with !urisdi.tion to srant "Ass urEd Rtfiirns". ,.,*, *" *.*toi\tf,El't'nl,rea n"tu,ni ro rr," "Banning ot Unregulated Deposits, 2019", to stop the menace of unregulated deposits, the "Assured Returns Schem€" g,ven to the complainant fellunder the scope otth,s Ordinance and the payment ol surh returns became whollyillegal.

Thatlater, an act by the name "The Bann,ng of Unregulated Depos,ts Schemes Act, 2019" (hereinafter ol every month" 'n *HARERA S-eunuennv Compl,rnr no. pl,rnr no.

I292 ol 2022 & 5 othe6 section 31 of section 2 ol th mpanies Act provides that "deposit" in€ludes any receipt ofm of depos,t or loan or in any other form by a respondent but include such categofles of amount referred to as "the BUDS Acr') notified on 31.07.2019 and came into force.

That underthe sajd Actallthe unregulated deposit schemes such as "Assured Returns" have been banned and made pun,shable with strict penal provisions. h.

It is also provided that in respect oi respondent, deposit" shall have thesame meaning as assigned to itunderthe Companies Act,2013.

Sub the Deposrt Ru the Reserve Bank of lndi..

1)(cl(xii)(bl ofRule 2 of an advance, accounted in .onne.tion with for in any property in nder an agreement or is adjusted asainst such of the agreement or the tanding ol these kinds, therewith rnay be in complete contravention of the provisions of the BUDS Act.

The BUDS Act prov,des lwo forms of deposit schemes, namely Regulated Deposit Schemes and Unregulated Deposit Schemes.

Thus, for any deposit scheme, for not to fall foul ofthe provisions ofthe BUDS Act, must satisfy the requirement ofbeing a'Regulated Deposit Scheme' as opposed to Unregulated Deposit Scheme.

Hence, th€ main may, alter 2018, and ilany assured return is pa,d thereon or continued Page t0 or28 *HARERA S-cLrnuenntr Conpl,rnt no 1292 of2022 & 5 others object ofthe BIJDS Actis to provide fora comprehensive mechanism to ban Unr€gulated Deposit Scheme. k.

Further, any orders or continuation of payment ofany assured return or any directions thereof may be completely contrary to the subsequent act passed post the RERA Act, which, is not violating the obligations or provisions ot the RERA Act Therefore, enlorcing an obligation on a promoter against a cenkal Act which is specificallv banned, may be contrary.l al legidation which har come uP to stop the menaceofunr It is pe.

It is pe.tinent to rote that the schemes being harped uPon by dre I business, ParliameDt has passed an act titled as The Banning oi Unregulrted Deposit Schemes Act, 2019" (hereinafter reii.red to as 'BUDS A.t"l. m.

It is pertinent to not€ herein that the respondents have faced various challenges in the seaml€ss execution ofthe present proj€ct' That the project had deferred due to various reasons beyond the controlofthe respondent which directly affected the execution oi the proiect.

Demonetization and GST resulted in a serious economic meltdown and sluggishness in the real estate sector.

That the respondenl with no complainant would have no fouDdation rn the builder buyer agreemeDt, therelore the concerns arising out oi the same cannot be adiudicated by this autlority 'I'he 'Assured Returns" scheme has become illegal. lt is noteworthy in the present situation that in order to provide a comprehensive mechanismto ban thc unregulated deposit schemes, other than the depos'ts taken in the ordinary course oi ould this SHARERA S- c,LrnLrcnlrr,r n.

That the currentcovid-19 notification d arch 25,2020.

Byvirtue n,stry ofHome Affairs, GOI lDrther extended the lock iom time to time and tlll date the annnl:lnt no.

1292 of2022 & 5 others cash circulation in the market the respondent could not make timely payments to the labourers and the contractors wh,ch stalled the construction.

Further, the NGT vide its order dated 09.11.2017 a complete ban on construction activities in around Delhi NCR which further caused serious damage to the project.

Despite the varlous chauenges the respondent is trying his level best to complete the said project well within the timeline as declared during the time of arch 24,2020 bear resulted in ler,ous challenges to , contractors etc for the Home Affairs, GOI vide .

40-3 /2020-DM-tlA) e spread of Covid-19 the entire €ou.try ior onre or the other fornt to curb the pandenri. pandenri. various State Governments, including the Governmert of Haryana have also enforced various strict measures to prevent the pandemic including imposing curfew, lockdown, stopping all commercial activities, stopping all construction activities.

Pursuant to the issuance ofadvisory by the COIvide oftice rnemorandum dated May 13, 2020 rega.ding extension of registrations of real estate projects under the provisions olthe RERA Act,2016 due to "Force Majeure", the Haryana Real Estate Regulatory Authoriq, has also extended the *HARERA S-cunuennr,r Complainr no.

1292 of 2022 & 5 orhe6 registration and completion date by 6 months for all real estate projects whose registration or completion date expired and or was supposed to expireon or after March 25,2020 o.

In past few years construction activities have also been hit by repeated bans bythe Courts/Tribunals/Authorities to curb pollution in Delh,'NCR Region.ln the recent past the Environmental Pollution (Prevention and Controll Au iry.

NCR TEPCAJ vrde its norification bearing no.

EPCA-R/2019, 25.10.2019 banned construction activity in NCR during ni pm to 6 am) from 26.10.2019 to 30.10.2019 which ed to complete ban from 1.11.2019 to 05 otification bearing no.

P Rl2Or9 /L-53 Tbe Hon'ble S der dar€d 04.11.2019 5 titled as "MC Mehta Delhi-NCR whrch re onstruction actlvities in modified vide order dated l1l';3 ll#[tffH,ffffi ill, i::'JT:T,ilI labourers to r6frr tol6?It da6-ft FolAvitaf+s/villages creating an **" ***"VHJ,1"VFJJftl;i"*." Due to,he said shortage the construction activty could not resume at full throttle even after the lifting ofban by the Hon'ble Apex Court Even before the normalcy could resume the world was hit by the covid_lg pandemic Therefore, it is safely concluded that the said delay ilt the seamless execution of the Project was due to genuine force maieure 1.11.2019. *HARERA s-cLnuennt'1 Compla nt no I292o12022&5othe6 circumstances and the said period shall not be added while cornputing the delay. q. delay. q.

That right from the date oi booking of the commercial unit the respondent herein had been paying the comm,tted return of Rs.

65,075/ every month to the complainants without any delay.

As on September 2018, the complainanthas already received an amount of Rs.5,85,675l- as assured re s rBreed by the respondenl under the aforesaid agreement- r Th2r ir is lmperrrve ro knowledge of the Authority that een in advantage ofgetting ru is an admrtted fact that 65,075/'every month ment upto September 2014.

Si.ce s comply with the ays tned level be5t to has always intimated the elay is caused in the payment was bonafide and purety out ofthe ( same has been explained in detail he s.

Thatfurther, the complainantin the instant conrplaint has harpsd that the respondent has fail€d to olt€r timely possession ofthe respect,ve uniL The said agreement was of the nature of an "investment agreement".

The same does not stipulate about possession, in fact it cl€arlyspecified and as mutuallyagreed by the complainant t.

That the respondent no.

1 i.e., M/s Vatika Ltd. cannot be made a relevant in th€ present complaintsince the allotment leBerwas issued ffiHAREEA gP* GURUGRAM Complaint no.1292 o12022 & 5 others by respondent no.

2 M /s Vatika One on one Pvt.

Ltd which is a s€parate entity from M/s Vatika Ltd.

Theretore, the respondent no.1 i.e., M/s Vatika Ltd. is not a necessary and properparty in the presentmatter. u.

That the complainant, has suppressed the above stated facts and has raised this complaint under reply upon baseless, vague, wrong ground and has mislead the authority torthe reason stated above been nled and placed on the H€nce, the complaint can be d..uments aDd submission Copres of all the re)evant do record.

Their authenticity is decided on the basis of 13.

1,1 [. lurlsdidion The respondent regarding jurisdiction he authority observes risdiction to adiudicate E.

I T€rritorial iurisdi 15.

As per notification no.

1/92/2017'lTcP dated 14. dated 14.122017 issued bv Town and Country Planning Department, Haryana theiurisdiction olReal EstateRegulatoryAuthority,CurugramshallbeentireCurug.am Drstrict for all purpose with offices situated in Gurugram ln the presentcase,the proiect in quesrion is situated within the planning area of Gurugram District.

Therefore th,s authority has complete territorial iurisdiction to dealwith the present complaint [. n Subiect-matter iurisdlction 16.

Section 11(4)(a) oftheAct,2016 provides that the promoter shall be responsible to the auottee as per agreement for sale.

Section 11(4Xa) is reproduced as hereunder: Be rcsponsible fo. all oblisattant respansibihties and functions u nder the prcvisian s of th i s Act or the ru les o n d tegu 1 o tian s n o de thereunder or to the allottees as pet the agreenent lor v|e, or to theastuciation olallottees, os the cose ndr be,tiU the conveyahce ffHARERA 9-cunLrcnm,l (omplarnt no 1292 o12022 & 5 orhers of oll the opartnents, plos or blildinos, os the case noy be, to the a$octattan of ottatte$ or pa.t of the builder bqe.\ BBA doted.,. .

AccardinslJ,, 17.

So, in view of the provisions of the Act of 2016 quoted above, the authoriry has complete ju.isdiction to decide the compla,nt regarding non-compliance ofobligations by the promoter leaving aside compensation which is to be decided by the adjudicating officer ifpursued by the complainantat a later stage.

I.

Findings on th€ r€liefsought by the complainantl F.I Assured return 18. while filing rhe petition besides delayed possession charges of the allotted unit as per clause 2 of the allotment lefter, the claimant has aho sought assured returns on monthlybasis as allotment leceratthe rates mentioned therein till the completion ofthe building.

It is pleaded that 9HARERA S-eunuenetr.r the responrlent has not compl,ed with the terms and conditions oi ihe allotmert letter. rt letter.

Though for some time, $e amount of assured returns was paid but later on, the respondent refused to pay the same by taking a plea ofthe Banning ofUnregulated DepositSch€mes Act,2019 (herein after relerred to as the Act of2019).

But thatAct does not creat€ a bar fo' payment of assured r€turns even aft€r coming into operation and the payments made in this regard are prot€cted as per section z[4](iiil ofthe above'mentioned Act How ofrespondent is otherwise and who took a stand thar thoug e amount ofassured returns upto the year 2018 but drd unt atter comrng into force of rhe Act o12019 as i 19.

The Act ol 201 means an agreement ttee lsection 2(c]1.

An t e.tered between the of both the parties.

An s ol both the Parties i e., the start of new contractual relatiorship between them.

This contractual relationship gives rise to future agreements and transactio ns betlveen them' The different kinds of payment plans were in vogue and legal within the meaning of the agreement lor sale.

One of the integral part of this agr€ement is the transachon otassured return inter-se parties' The "agreement for sale" after coming into force of this Act (i.e., Act of 2016) shall be in the prescribed form as per rules but this Act o12016 does not rewr'te the "agreement" enEred between promoter and allofte€ priorto coming into force ot the Act as held bv the Hon'ble Bombav High Court in case I aomDlarnt no 1292of2022&5othe6 *HARERA #-eunusaArt/ Compl.in! no 1292 of 2022 & 5 othe6 Neelkamal Reattots Suburban Private Limited and Anr, v/s Union ol tndia & Ors,, [writ Petltlon No.

2737 ol 2017) declded on 06.12 2017 Since the agreement d€fines the buyer-promoter relationship therefore, jt can be said that the agreement for assured returns between the promoter and allottee arises out of the same re)ationship. ationship.

Therefore, it can be said that the real estate regulatory authority has complete jurisdiction to deal with assured return cases as the contractual relationship arise out ol a$eemgui foJ sale only and between the same partie\ as per the provrsrons 11(41(a) ofthe Act of 2016 whr.h provrdes that the pro nsible for allthe obllsations le till the execution of rtee Now. three issues ii.

Whether the authori t to allow assured returns to the allottee in p.e RERA cases, afler the A.t oi 2016 c.nrc iii.

Whether the Act of2019 bars payment ofassured returns to the allottee in pre_RERA cases 19.

While taking up the cas€s of Brhimieet & Anr, Vs M/s Landmsrk Aportments I,vL Ltil, (complalnt no 141 ol 2018)' ond Sh.

Bhanm Singh & Anr. vs.

Venetoin LDF Proiects LLP" (snpru), it was held bv the authority that it has no jurisdiction to dealwith cases ofassured returns' Though in those cases, the issue of assured returns was involved to be $}\I-JL-L-'- o Y}} *et* .-' {PHARERA #- eunuonnr,r CompLaLntno 1292of2022& I orheE paid by the builder to an allotte€ but at that time, neither the lull tacts were brought before the authorily nor it was argued on behalf of the allottees tbat on the basis of contractual obligations, the builder is obligated to paythaiamount.

However, there is n. har to take a different view from the earlierone if new facts and law have been brought bef,ore an adiudicating authority or the court.

There is a doctrine of "prospective overrulins" and which provides that the lawdeclared bvthe court applies to the cases arising in futur applicabil,ty to the cases which have attained nnality is save the repealwould othe.wise work hardship to those wh xistence.

A reference nr this or & Anr Vs.

Madan Lol on 05.02.2003 an) tio.ed above.

So, now e complaint in the face The authority can take a is of new facts and law and the pronouncements made .ourt ofthe laDd.

It is now well *nr.a n*r*irl{rfi,R8ft4""*ed returns is part ",an,.. rt ",an,.."r"ru,itlil,^,1flipql2q-;i'tf ;i,rr**"t"acrauseinthat aocument or ry {t4klhd&/,Lul,(qtuUM,j", or understandins or t€rms and conditlons ofthe allotment ofa unit), then the builder is liable to pay that amount as agreed upon and can,t take a plea that it is notliable to pay the amount of assured return Moreover, an agreement for sale dennes the builder_buyer relationship.

So, lt can be said that the agreement lor assur€d returns betlveen the promoter and an allotee arises out of the same relationship and is marked by th€ onginal tpHARERA #-arnuenartr Comp a nt no 1li)2 of 2022 & 5 orhers agreement for sate.

Therefore, it can be said that the authority has complete iurisdiction with respect to assured return cases as the contractual r€lationship arises out of the agreement for sale only and between the same contracting parties to agreement for sale.

In the case in hand, the issue of assured returns is on the basis of conkactual obligations arising betlveen the parties.

Then ,n .ase of Pioneer Urbon Petition (Civil) No.

43 ol 2 by the Hon'b)e Apex Court into "assured retur ided on 09.08.2019, it was obsctYed that "...allottees who had ente.ed s agreement5 wrth thete antial portion ol the total tion of agreemenl the lonees on a monthly trll he date of handing over that'amounts rarsed bY d the "commercial effect of i""r"r*r,'"n*"Ef,f saleconsideratiofb.E) ofpossession to the allotte€ developers under assured r a borrowing' which becam e developer's annual rerurns in f the Code" including its treatment in books oiaccounts of the promoter and lor the purposes of income tax.

Then, in the latest pronouncement on this aspect in case laypee Kenslngton Boulevard Apartments weuare Assoclotion and ors. vs, NBCC (India) Ltd. and Ors. (24.03.2021'SC): MANU/ SC/0206 /2021, the same view was fouowed as taken earlier i' the case olPioneer Urban Land Infrastructure Ld & Anr.

Ld & Anr. with regard to the allottees of o pay a certarn amou *HARERA S-aJRTJGRAI\,I Complarnt no 1292of2022 & I orhe6 assured returns to be financial creditors within the meaning of section 5(7) of the Code.

Then after coming into force the Act of 2016 w.€.f 01.05.2017, the builder is obligated to register the project with the authority being an ongoing project as per proviso to section 3(1) olthe Actof2017 read w,th rule 2(ol ofthe Rules,2017- The Act of2016 has no provision for re_writing ofcontractual obligations betlveen the parties as Suburban P.ivote Limited Union ol India & ors., (suqra) as quoted earher.

So, the res uilder cant take a pleathat there was no contractualobli untotassu.ed returnsto the rhat a new agreemenr is re is an obligation ofthe f assured returns, then taking a plea of the 20. lr is pleaded on beh r that after the Bannlng of Unregulated Deposrt sche 19 came into force, there is bar e.

Butagain, the plea taken rn 4l of the above mentioned Act noney received by woy of on sdvance or loon or in ony othet fom, by on! deposit taker with a pronise to retum whethet alkr a specifred petiod ot otherwise, either in cash or in kind or in the form ofa specified service, with or t?ithout ony beneft in the form ol intetest" bonut proft or in anv othet form' but does not include i. dn anountreceived in the course oJ, orfot the purpose ol' business and beoring a genfine .onnection to such business includinq- he canl wriggl llottee to Dav the am this regard is devoid of n defines the word deposi Page 2l utZa ii. odvance received in connection vtith consideration of an inmovable propefty under an agreement or anangenent subject to the condition that such advance is adjusred against such immovable properrJ as speciJied in krns of the agreement ar arrangement 21. gement 21.

A perusal ofthe above-mennoned definition of the term'deposit' shows that it has been given the same meaning as assigned to it under the Companies Acl2013 and the same provides undersection 2(31) includes ffHARERA S- cltnltcnll,,t Conplaint no.1292 of2022 & 5 others any receipt by way ofdeposi in any other lorm by a company but does not include such c fanount as may be prescribed in consultation with the dia.

Similarly rule 2(c) of lhe Compani€s [Accep 14 defines the meaning of depositwhich in€ ay ol deposit or loan or by 22.

So, keepins in vieiv thc above-mentioned provisions ol the Act ol 20li) entitl€d to assured returns in a case where he has deposited substantial amount of sale cons,deration against the allotment of a unit with the builder at the time ofbooking or immediately thereafter and as agreed upon betv/een them.

23.

The Government of India enacted the Banning of unregulated Deposit SchemesAcl,2019 to provide fora comprehensive mechanism to ban the and the Companies Act 2013, it is to be seen as to whethe. an allottee is (omDJnv Dur ooes no PaEe 22 ol ZA SHARERA S- c,LrnLr.ennrr,l Complarnt no 1292 ot2022 & 5 oft ers unregulated deposit schemes, other than deposits taken in the ordinary course of business and to protect the interest of depositors and for matters connected therewith or incidental thereto as dellned in section 2 (4) of the BUDS A€t 2019 mentioned above.

It is ev,dent from the perusal of section 2(al0)(ii) of the above- mentioned Act that the advaDces received in connection with consideration ot an immovable property under an agreement or arrangement subject to th a( such advances are adjUsred aeainst such immovable pro ecified in terms ofthe agreement or arrangement do no oideposir, whrch have been 25.

Moreover, the de issory estoppel.

As Per 24 this doctnne, rh builders fa,led to ho ade a promise and the his position, then the her promise. r promise. when the number of cases were Nikhil Mehta, Pioneer ftled by the creditors at di ,relv led the central nregulated Deposit Scheme Act, Banning of Unregulated DePosit Scheme Ordimnce, 2018.

However, the moot question to be decided is as to whether the schemes floated earlier bythe builders and promising as assured returns on the basis of allotment ol units are covered by the abovementionedActornot Asimilarissueforconsiderationarosebefore Hon'ble RERA Panchkula in case Baldev Cautam yS REe Proiects Private Limited (REM'PKL'2058'2019) where in it was held on Page 23 uf28 1rHARERA S-arnrLenarr.l Complarnl no.

I2q2 oI20l2 & 5 orheB 11.03.2020 that a builder is liable to pay monthly assured returns to the complainants till possession ol respective apartments stands handed overand $ere is no illegalityin this regard 26.

The definition of term 'deposit' as given in the BUDS Act 2019, has the same meaning as assigned to it under the Companies Act 2013, as per section 2(a)(ivl(i) i.e, explanation to sub-clause (iv).

In pursuant to powers confer.ed by clause 31 ofsection 2, section 73 and 76 read with sub-section 1 and 2 of secti Compan,es Act 2013, the Rules with regard to acceptance o by the compani€s were framed in the year 2014 and the s on 01.04.2014.

Thedefi nition of the above mentioned nted for in any manner tion lor an immovable ovided such advance is adjusted against .e with the terms ol agreementorarrang s,t.Though $ere is Proviso to thrs provisron as wellas ts received under headins 'a' and iEotr-ni ihimonev does not have iIi,AJ\,4*.. *,," *" **" orproperties or serr'ices for which the money is taken, then the amount received shallbedeemed to be a deposit under these rules However, the same are not applicable in the case in hand.

Though it is contended that there is no necessary permission or approval to take the sale consideration as advance and would be considered as deposit as per sub' clatlse ztxv)(b) but the plea advanced in this regard is devoid of devoid of m€rit' :n givm agreemr xir [b). as advan(e, trHARERA #- eunLrGaAr',t complaint no.1292 of2022 & 5 othets First of all. there is exclusion clause to section 2 (xiv)[b) which provides that unless specifically excluded under this claLlse.

Earlier, the deposits received bythe companies orthe builders as advance were considered as deposits but w.e.f.

29.06 2016, it was provided that the monev received as such would not be deposit unless specincallv excluded under this clause.

A reference in this regard may be given to clause 2 of the First rhe Act of2019 which Provi L2 ) T he lollaw t n g sh a I I a I \o b Regul o @d De post Sc henes unde. on a tronoetue nt reg istered @d or.stoblkhed und{ The money was taken by the builder as deposit rn advance aganrst allotment of immovable property and its possession was to be offered within a certain period.

However, rn view oftaking sal€ consideration by way ofadvance, the builder promised c€rtain amount bv wav olassured returns for a certain Perio ailure to fulfrl thrt commitment, 27 ihe allottee has a right to approach the authority for 'edressal of his grievances by way offilinga complaint.

It is not disputed that the respondent is a real estate develo per' and it had not obtained registration under the Act o[ 2016 for the proiect in question.

However, the project in which the advance has been received by the developer from the allottee is an ongoing project as per section 3(1) of the Act ot2016 and, the same would fall within the iurisdi€tion or the authority for giving the desired relief to the complainant besides initiating penal proceedings.

So, the amount paid by the complainant to n bv the lrulloer as Page 25 of28 SHARERA S-eLrnLrenal,.l complarnt no 1292 of 2022 & 5 others the builder is a regulated deposit accepted by the later from the Former againstthe immovable property to betransierred to the allottee later on' On consideration of documents available on record and submissions made by parties, the complainant omplainants have sought assured return on monthly basis as per one of the provis,ons of allotment letter at the asreed rates till the date of completion of building. lt was also agreed that as p€r clause 2 of allotment letter, the developer would pav assured rerurn to the buyer at drffe ; fmentioned in allotment letterl per sq. ft. super area of the sai cial unlt.

The said clause further provides that it wou oned in allotment letter) the date of completion se whichever 15 earlier.

Though ior some urns was Paid but later y taking a plea of the Banning olUnregula .2019.

But that Act does not create a bar for paymen ieturns even after comins into 30.

Accordingly, the 1ia sured return of the unprrd period as specified under the clause 2 ofthe allotment letter' F.II Conveyance de€d 36.

Sechon 17 (1) of the Act deals with duty of promoter to g€t the conveyance deed executed and the same is reproduced below: "77.

T$asler ol tide.' 6). rhe prcnotq shdll execute a resistercd convevonce 'tedt in favoul oI the oltottee olons with the undiided prapottianate title in rn to the buyer after the 1}HARERA S-aJRucRAM the connon oteos to the oseciatio\ olthe ollotteet or the conpetqt ourhont - ot t hc oe nor bc- and hand o\ et rhe ph\ scat po$etron of the plot, aportnent of building, os the cose na! be, ta the ollottees and the connon oteos to the osocionon of the ollouees or the cohpeEnt outhority, as the cose noy be, in o rcal estoE prcject, ond the orher *le docunents peftoining thereto withn speciJied penod os pet ton.tioned plons os ptovided undet the locol ldws: Protided thot, in the absence of on! local law, coneelonce deed in fovou. of the atlonee or the osociotion ol the ottattees or the .onpetentauthoriy, os the cose noy be, under this sectioh shollbe Complarnr no.

1292 of2022 & 5 oihers onth' l.on dote oI ts'ue , accordingly conveyance deed tenceforwhi.hconclusive t authority and nling of ering authoriry. the promoter as per the ol oc. u po hc! cenilicare.

37. icare.

37.

As OC of the un,t has no LornPd alt b! the ptodokr w C.

Dircction. otth 42.

Hence, the autho aollowins directlon compliance ol obligations function entrusted to the au thority und er section 34(0: i.

The respondent is direcled to pay the arrears of amount ol assured return at agreed rate to the complainant(s) from the date the payment ofassur€d return has not been paid till the date of completion of co.struction of building.

After completio n of the construction of the buildin& the respondent/builder would be liable to pay monthly assured returns at agreed rate ffHARERA $-eunuennu amount would be payable with interest @8.700lo p.a. till the date of actual.ealizatio jii.

The respondent shall execute the conveyance deed of the allotted unit within the 3 months trom the I'lnal offer ol possession along with OC upon payment of requisit€ stamp duty as per norms ofthestate government. aombl.int no 1292.f2022 & 5.rherr of the super area up to 3years or till the unit is put on lease whichever is earlier.

The respondentis also directedto pay the ourstanding accrued assured return amount till date at the agreed rate within 90 days from the date ot order after adjustment of outstanding dues, if any, from the complainant and aailing which rhat The respondeDt sha complainantI 43.

This decision shal para 3 ofthis order.

45 Compla'nis *.nd disposed of. |iles be consigDcd to regi*ry.

RAM (sani Haryana RealEstate Regulatory Authority, Guru 30.0s 2021 ing from the [Ashok QE"'#'.J )