MRS SUMEET JOHAL MS GURMEHAR JOHAL AND ADHIRAJ SINGH JOHAL vs VATIKA ONE ON ONE PVT. LTD.

ITHARERA S-aIRUGRAtt,4 BEFORE THE HARYANA REAL ESTATE REGULATORY AIJTHORITY, GURUGRAM Order pronounced onl 23,O5,2023 This ordershall d,s thrs authorirY in form C 2017 (hereinafterreferred as "the rules") lorviolation ofsection 11(a)(a) of the Act wherein it is inter alia prescribed that the promote' shall be responsible for all its obligations, responsihilities and funct'ons to the allottees as pertheagreement lor saleexecuted interse betlveen parties 2.

The core issues emaDating from them are similar in nature and the complainant(s) in the above referred matters are al)ottees oftheproject' namely, Vatika oneon One (commercial complexl being developed bv the vatika Limited VatikaOneonOne (,ilir"hr.,*h.,ltu & fM, c*,^ R* adhka;s'nsh lohalv/s vark Mr v'nketRao r.imted&Anr.

L P?ffi 1 and Develop ment) Act, 2 0 16 [hereinafter reierred as the Act ) rcad with rule 28 olthe Haryana Real Estate [Regulatron and Developmcnt] Rules' CORAM: Sh.

5an)eev l(umar Arora 1 3. *HARERA -&-cunLremv same respondent/promoter i.e, Vatika Ltd' The terms and conditions of the application form lulcrum of the issue involved in both the cases pertains to failure on the part of th€ promoter to deliver timely possession ofthe units in question, seeking award olassured return and rhe execution of the convevance deeds' The details of the complaints, reply status, unit no'' date of application' .ssured return clause, assured return rate, total sale consideration' amount paid uP, and relief ven iD the table below: m, HR.LZ2012 Proie.! vatika one on One, atause 2 ofAppli.ation Io A$ured rerurn Pard @1 lur:: *HARERA 4- cLrnuenattt The atoresaid complaints were filed bv the cornplainants against the promoter on account of violation of the application iorm €xecuted between the parties int?rse in respect ofsaid unit for not handing over the possession by the due date, seekiDg award of delaved possession 5 It has been decid€d to trea laints as an aPPlication for non_ I the part of the Promoter the Act wh the Act which mandates the conpliance of the obligations cast upon the til promoters, the allottee(s) and the real estate agents under the Act' the rules and the regulations made thereunder' rules and the regulations made thereunoer' The facts ofallthe complaints fi1€d by the complalnantt'/allottee(slare charges. ]s(ured return rnd tx on ofbuyer's agre€ment .lso similar.

Out ofthc above-men e, the particulars ofl€ad case 6.

CR 173/2022 titled osSumeetlohal, Gur ehot lohal Mdhiraj singh lohol vs.

M/s Vattko Limiced & '/hr- are being t'ken into consideratio 7. ken into consideration for determining the rights oftheallottee[s) qua delav possession charges' assuredreturn,€xecutionof conveyancedeeds' Proiect and unit related details Theparticulars otthe project, thedetails ofsale consid€ration' the amount paid by the complainan(r, date of proposed handing over the possession, delay period, if anv, have been detailed in the followin8 @h'YaEeraboEted Tsc Tobl s:le.onsde.atiotr APAmouitDaid bv the auoteelE trHARERA S- eunucnat,t CR 173/2022 titled os Sumeet Johol, Adhiroi Singh lohal & Sandeep Singh lohal Vs.

M/s vatlko Llmited & Anr S.

No Heads I N* a"dlo.-*,on of rh;l prcl:g- , - - Area ofthe Proiect I orcr license 1 12.13 a* )", Sector-16, Gurugram, dated 06.08.2015 2 3.

05c f 2015 4 4.2020 v Dutt & others valid uDto 5.

2017 dated z0 ue.zut t vat!

9.09.2022 14.0 I 01.( 7 Datc otApplication fo.m 'ing 500 sq.ft.

2 ' the paymcrt of Your assured rrn of Rs, 12J45/ Pcr tq.lt Plr 1'l-": ::l-1':i:iil':ff iH:: ion bv us from You, in e paynent PlaD/schedule ts as agreed/oPtedbYYou aid tilt the completion fu.tion of the said per sq.ft.

Per month on t for uptothreeYears from e of completion ot ion ofthe $id building or unit is Put on lease, Post .ompletion of on oi the said building, rpaidcomnitted.eturn of GU E \R RU d will b Rs.

131/' R'.648?5oo/- Pi 41.58,000/_ 10. -"t r"m,tp"fabtth" comDlainants 11. inants 11.

B, u ffHARERA S-euntLeneu Facts of the complaint That the complainants while searching lor a commercial unit was lured by such advertisements and calls from the brokers ol the respondents for buying a house in their proied namely "One on One" The respondents total the complainants about the moonshine reputation ofthe companv and the representative of the respofldent made huge representations about the proiect mention-gffifuna abo assured that thev have delivered several suc he respondent handed over d the proiect like heaven ld lainants and incited the 9 That rely,ng on t? respondent and on beliel rn the proiect bY PaYi surances grven bY the plainants booked a unit lRs.

5,00,000/- towards the ,.

H:::"H:1ffilTIlTx"ffiRahlea r+ os zore,o,r,e complainant providing the details of the project' confirming the booking ottbe unit dated 01.03 2018, allotting a unit no' P-741measur'ng 750 Sq' Ft in the aforesaid project ofthe developer for a toral sale consideration olthe unit i.e., Rs.61'87,500/', which includes basic price' EDC and lDc' car parking charges and other specifications of the allotted unit and providingthetimeframe within which the nextinstalm€ntwas lo be paid' Date oioIer olPos5e$ion Occupation certiflcate *HARERA $- eunuennut As per assurance and on th€ bases of the above said allotment letter respondents assured of SeBing the builder buvers agreement/ agre€ment to sell w'thin 30 days from the date of the above said allotment letter i.e, 14.03 2018.

At the time of purchasing rhe unit' the complainant was assured that the possession of the unit would be delivered within the promised period ol 2 vears from the date oi lt.

2llotment letier i.e., bY i4.03 2020' Thata! per claute ofthe a r, the respoDdents undertake to make the Payment of commi ount/assured return of Rs.

123'45 per Sq.

FL Per Mont 50 Sq.

Ft. trom the date of ion oithe unit for fitouts. respondents Promised the said building, the s.131/-persq.

Ft. persq.

Ft.

Per e date of comPlehon of s put on lease whrchever is form the resPondenis tz. l$. !!7.-ger sq.ft Per montn ana l*/*l\lir'as t"ir"a to "uia" ana honour the above said claus€ of the booki'g application lorm by not leasing out the above saidunit 13.

That as per clause 3 ofthe allotment letter $e respondents guaranteed the complainants, that in eventthe said unit is leased ata gross monthly rental of less than the commitment amount of Rs' 131/- p€r sq ft per month. then the respondents agreed that the complainant would get on of the (onstructi Complarnt no.173 of2022 & l otherr ffHARERA dF- eunusnal,,t refunded amount calculated @Rs 141 18/- per sq ft for every Rs' 1/- by which theachieved rent is lessthan R5' 13U'persq'ft' As perclause 3 oi allotment letter the respondents further agreed that there would be no maintenance charges/ electricily charges/ water charges etc' shall be charges from the complainant for the period unitir on lease and the said charges would be paid bv the prospective tenant' That as per the said booking application and allotment letter' the respondentswere liable to hanl -the possession ofthe said unit on or berore 14.03.2020. rhereforAid6i$$ondents was liable to pav interest as per the prescribed r aiil under the Act,2016 & Rules,2017 for e complainant as Per clause 2 of the the delay in the delivery and tbe comprauranL d5 allotment letter is also entitled to get the monthly 'ssured amounttillthe completion of the unit lor fit outs and also post the completion of the construction ofthe said building, complainant would be paid conrmitted retunr of Rs.

131/_ per Sq Ft' per Month on super area for Ltp to 3 years from the date of completion ofconstruction of said building or ihe said unit is put on lease, whichever is earlier' As per the demands raised by the respondent, based on the payment plan the complainant to buy the captioned unit already paid a total sum of Rs41'58'000/ towards the said irnit against total sale conslderation oi eration oi Rs 61 8 7' 500 / ' 15.

That it is pertinent to mention here that allotment ofthe unit was made on 14.03.2018, after coming into force ofthe RERA Act'2016 and as per the Act. after coming into lorc€ of the Act the respondent can charge only on the carpet area ofthe unit and not on the super area ofthe unit lD the present case, the respondent has charged the complainant on the super areai.e.,750 Sq.fL @ Rs' 8250 persq' Ft which is against the provisions Complarnt no 1?3 of 2022 & I orher!

IPHARERA S-arnuennr,,r ofthe Act,2016 and Rules 2017 made thereof' Hence' in accordance with theprovisions ofthe RERA Act, necessary peDal action is liable to betaken against the respondent and direction may kindly be passed to the respondent to charge on the carpet area instead of the super area of the un,t.

The respondent has collected approx' Rs 41'58'000/'till date without executrng the buyer's agreement Further' such acts of the 2017.

16.

It is abundantly clear that th complainantandhave site within stipul ents have plaYed a fraud upon the lently and dishonestly with a struction over the Project g the monthly assured ly farled to implement e Complainant.

He.ce, the tuisconduct, lraudulent e respondents is frltng the e respondenrs having t7. commercial ottice space & nav'n8 y ofthe "ONE ON oNE" Proiect and also losing considerable amounr are constrained to approach the Au$ority for redressal of their grievance' C.

Relief sought by the complalnants: The complainant has sought following reliet(s): i.

Directthe respondent to paythe mo'thly assured returns' ledr I agg ent! have turther ma gHARERA S- eunLrenqut Direct the respondent to pay interest at prevailing rate on the amount paid bY the comPlainaBt' Direct the respondent to carry out the title registration/ execurion of convevance deed of the unit and ro handover physical vacant possession ofthe unilwith immediate effe€t Directthe respondents to ex€cute a builder buyer agreement in respect ofthe unit in question in fa tion in favour ofthe complainant' 0n the dat€ of hearing, the authoriry explained to the respondents/ promoters about the contravel s alleged to have been committed in relation to section plead guilty or not to Plead guilty.

D, Reply by the re the lollowing grounds a.

That in the One situated at S sited the office oi the respondent to know ot the sard Projecr. the b.That after having dire interest in the commercial project constructed by the respondent the complainants booked a unit vide application form dated 0103 2018 and paid an amount of Rs.

5,00,000/- for further r€gistration on their own iudgment and investigation lt is evidentthatthe complainants were awar€ iv.

13. out the sPecifi.ations and nd were satisfied with every trHARERA S-eunuc+ev ol each and every terms of the application form and agreed to sign upon the same without any p'otest or demur' c.

That on 14.03 2018, an allotment letter was issued to the complainants for the unitbearing no' P'T4ladmeasuring to 750 sq. yards for a total sale consideration oiRs' 61,87'500/- in the aforesaid projecLThe complainants were wellaware ofthe tact' tbat the commercial unit in questi on was subject to be leased out post it completion and the sarne was evidently nentio'ed and agreed by the complaina allotment letter dated.

The said commercial uni med to be leased out d.

The said aPPl the said iacts and cir use". ln the light of concluded beyond and reasonable doubt thar the complainants is not i consumer or e.

That the complainants are trying to misl€ad tbe court by conceal,ngfacts which are detrimental to the complaint at hand' The conplainants have approached the respondent as an investor looking for certain investment opportunjties' Therelore, the said allotment ofthe said unit contai'ed a "lease clause: which empowers the developers to put a unit ol ffHARERA S-GlJRtcRAtr,l complainant along with the other commercial space unit on lease and doe not have possession clause for physical possession I That the complain e complainant has filed the present complainant before the wrong forum That the complainant is praying for the relief ol"Assured Returns" which is bevond the jurisdiction that th's Ld.

Authonty has b€en dressedwith That fromthebare perusa) ofthe RERA Act, iI is clear t he said Act provides for three kinds ofremedies in case of aly.dispute between a builder and buyer with .espect to the ent oithe Project as Per tbe ided under SectioD 18 of the RERA A That the said r rng "inter€st for nt to note herein, that HTJ."J::;ffi ilmmffi;Y *' ** o'""""0 g.

That the respondent cannot pay the "Assured Returns" to tbe complainaDt by any stretch of Imagination in the view of prevailing laws.

That on 2102'2019 the Central Covernment passed an ordinance "Banning of Unregulated Deposirs' 2019"' to stop the menace of unregulated deposits' the "Assured Returns Scheme" given to the complainant iell under the scope of this Ordinance and the payment of such returns becarne PHARERA S-euilonnv wholly iUegal.

That later, an act by the name "The Banning of Unregulated Deposits Schemes Act, 2019" (hereinafter referred to as'the BUDsAct") notified on 3107'2019 and 'ameinto force ThatunderthesaidActalltheunregulated d€positschemessuch as "Assured Returns" have been banned and made punishable wth stnct Penal Provisions. h It i5 also Provided that in respect of respoDdent, "deposit" shall have tbe same meaning a to it under the ComPaDies Act, 2013.

Sub section 3 on 2 of the companies Act provides that "deP t ofmoney by waY of be prescribed in tlltc)ixiil(b) or Rule 2 of the De ot a deposit) is an hatsoever, received in a.ljusted against such property in accordance with the terms of the agreement or the arrangement j.

Therefore, the agreements or anv other understandins ofthese kinds,may,after 2018, and ilanyassured return is paid thereon or continued ther€with may be in complete contravention ofthe provisions ofthe BUDS Act' The BIJDS Act provides two forms ol deposit schemes, namely Regulated Dep ulated Deposit Schemes and e Reserve Bank or ln 9HARERA -&- cunuennvt Unregulated DepositSchemes Thus,for any deposit scheme' for not to fallfoul of the provis,ons ofthe BIJDS Act' must satisry the requirement ofbeing a'Regulat€d Deposit Scheme' as opposed to Unregulated Deposit Scheme.

Hence, the main object of the BUDS Act is to provide for a comprehensive me'ban'sm to ban Unregulared DePost Scheme. t.

Further.

JnY ordc6 or ronti of payment of any assured return or any directions y be complete)Y contrary to the subsequent act pass e RERA Act, which, ls not violating the obli or the RERA Act. central legisla unregulated d in the builder buyer ag.eement, therefore the concerns arising out ol the same cannot be adjudicated by thls authorltv The "Assured Rcturns' scheme has become illegal.

It is Doteworthy in the present situation. that in order to provide a comprehensive mechan'sm tobantheunregulateddeposilschemes,otherthanthedeposits taken in the or.linary course otbusiness' Parl'ament has passed an act titled as "The BanDing of Unregulated Deposit Schemes Acr 2019" [hereinafter referred to as "BUDS Act")' pecifically banned, hich has come uP t *HARERA S-eunuenelr It is pertinent to note herein that the respondents have faced various challenges in the seamless execution of the present project.

That the project had deferred due to various reasons beyond the control ofthe respondentwhich directly affected the execution ofthe project.

Demonetization and GsT resulted in a serious economic m€ltdowD and sluggishness in the real €state sector.

That the respondent, with no cash circDlation in the market the resPondent e timely payments to the lrbourers and the contra h stalled the construction.

Furthe., the NGT vid 1.2017acompleteban CR which iurther duringthetime n.

That the c'lrrent resulted in serious viilible labourers, contractors challengesthe challenges to the proiectwith no avarr'rore raouur 1I r!ri!ioq'"'- etc ior the construction ot the Projecr The Ministry ol Hom try ol Home affairs. col vidsc+'i{o{f nl4ak+r'{att\2ar020 bearins no no.yrr*or"l'6rLlL$'J"!iJ,lnldi\r'i6"l""'"n"a *i't' the spread of covid-19 pand€mic and ordered a complete lockdown in the entire country tor an initial period of 21 davs which started on March 25,2020' Bv viriue of various subsequent notincaions, the Ministry of Home Affairs' Gol funher extended the lockdown hom tim€ to time and till date the same continues in some or the other form to curb the age to the Proie *HARERA lh cunueneu pandemic.

Various State Governments, including the Government 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 of advisory by the COI vide ofiicememorandum dated Mav 13,2020 regarding extension of registrations oi real estate projects under the provisions of the RERA (lilidg&i}le to "Force Maieure"' the Haryana Real Estate Regul ority has also extended the registration and co rihr for all realestate pollution in D Environmental Pollution (!revention and Conirou Authority NCB (EPCAI vrde rts notrfi(a 05.11.2019 by EPCA vide its notification bearing no R/2019/L- 53 dated 01.11.2019. p.

The Hon'ble Supreme Court of India vide its order dated 04.11.2019 passed in writ petition bearing no' 13029/1985 titled as "MC Mehta vs Union of India" completely banned all 020. also been hit bY NCR (EPCA) vide its notification bearing no EPCA'R/2019/L 49 rlt 25.10.2019 banned construction activlty in NCR during night hours (6pm to 6am) lrom 2610 2019 to 3010'2019which was later on converted to complete ban irom 111'2019 to comDlaint no.173 of2022 & l other' InHARERA S-cunuonatr construction activities in Delhi_NCRwhich restriction was partly modifiedvideorderdated09 12'2019andwascomplet€lvlifted by the Hon'ble Supreme courrvide its order dated 14'02 2020' ThesebaDs forcedthe migrantlabourers to return to their native towns/stat towns/states/villages creating an acute shortage of labourers in the NCR Region.

Due to the said shortage the construction activity could not resume at full throttle even after the lifting of ban by the Hon'ble APex rr F'.n before the normalcy could resume the world was hit id i9 Pandemic.

Therelore elay in the seamless be added while computing th Copies olall the r of these undrsputed complarnt can be d documents and submission made E. lurisdiction ofthe authority that it has territorial as well as subiect matter jurisdiction io adjudicate the present complaint for the reasons given below' E, I Territorial iurisdldion 15.

As per notification no 1'19212017-1TCP dared 14'12'2017 issued bv Town and Country Planning Department' Haryana lhe jurisdiction ofReal e said penod sh 13.

14.

SHARERA 4-cunuonerr,r Estate RegulatoryAutbority, Gurugram shall be entire Gurugram District ior alt purpose with offices situated in Gurugram' ln the present case' the project in question is situated within tbe planning area of Gurugram District.

Thereiore this authority has complete territorial jurisdiction to deal with the Present comPlaint' [. ll S'rbiect'matter iurisdiction 5ection r1(4J[a) of the Acr' 2016 rovrdes that ihe Promoter shall be responsible to the allo reem€rt for sale.

Section 1I(4)la) is reproduced as h o$ured teturns as Ptorided 3a(t aJthe A ;is Act ond the rutd ond rcsulohons dode thereunder' 17.

So, in view of the provisions ofthe Act of 2016 quoted above' the authority has complete iurisdiction to decide lhe complaint regarding non'comPliance ofobligations by the promoter leaving aside compensation which is to be decided by the adiudicating omcer ifpursued by lhe complainant at a later stage' $ plat: atbuildinls ast li. {THARERA & orlnuennl Flndhgs on the rellef sought by the comPlainant: F. ainant: F.l Assured retum while nling the petition besides delaved possession charges ol the allotted unit as per clause 2 ofthe allotment letter' the claimant has also sought assured returns on monthlybasis as allotment letter atthe rates mentioned therein till the completion oithe building lt is pleaded that 18. the respondent has not compli ith the terms and conditions ofthe allotment letter.

Though f e, the amount of assured returns was paid but later on, the re refused to PaY the same bY taking a plea ofthe Banning it schemes Act,2019 [herein does not create abarfor rnio operation and the section 2[a)0rr) orthe ndent is otherwise and t ofassured returns uPto rheyear 2018 bui did ntafter coming into rorceoi t for sale' nrcans an ag"em'nl entered into berween the Promoter agreement for sale is defined as an promoter and allottee with treewill and consent of both the parties' An agreemeDt defines the rights and liabilities of both the parties i'e' promoter and the allottee anrl marks the start ol new contractual relationship betlveen them This contractual relationship gives rise to future agreements and transactionsbeM€en them The different kinds of payment plans were in vogue and legal within the meaning of the regard are Protected ComDlaint no.

173 of 2022 & 1 oth€rs *HARERA S-eunuennv agreement for sale.

One of the integral part oi this agreement is the transactron ot assured return inter'se parties' The "agreement for sale' after coming into lorc€ of this Act (i'e' Act of 2016) shall be in the prescribed form as per rules but this Act of 2015 does not rewrite the "agreemenf entered beMeen promoter and allottee priorto coming into force of the Act as held bv the Hon'ble Bombav High Court in case Neelkamot Realtors S burban Prtvate Limited attd Anr' v/s Uniot ol tnilto & ors., Mnt Petition No'2737 ol2017) deci'led on 06 72-2017 sirce the agreement defin"t-$ffi-l'o'ot"""lationship therefore' it can be said that t sured returns b€tween tbe elationshiP. ationshiP.

Therefore, it uthonty has comPlete s as the contractual jurisdiction to relationshiP aris provides that the Pr nder the Act as Per and betlveen the same ofrhe Act of 2016 which sible for allthe obligations lor sale till the execution of conveyance deed ofrhe unit in favour of the allortec' No!L' drrec rs{'es arise for consideration as to: i.

Whether the authority is within its iurisdiction to varv its earlier stand regarding assured returns due to changed tacts Whether the authority is competent to to the allotte€ in pre-RERA cases, after allow assured returns the Act of2016 came with assured retur Comphint no.

173 of 2022 & I olher SHARERA db- cLrnuemu iii.

Whether the Act of 2019 bars payment of assured returns to the allottee in Pre_RERAcases 19.

While tahng up the cases of Brhtmleet & Anr' Vs' M/s Landmork Aporfinents Flrt Ltd, (complolnt no 141 ol Z01a)' ond Sh' Bhotum Slngh & Anr' vs.

Venetotn LDF Prolects LLP" (s\pra)' it was held bv the authority that lt has no iudsdictlon to deal with cases ofassured returns' Though in thos€ cases, tle issgqo{ assured reNrns was involved to be Daid bv the bultder ro an atiffie; that time nelther th€ full racts were ;roushr berore rhe 9yffifu" *"' "t'ed on behalr of the allottees rhat * ,h"16+ dli{$'."{U\"blisations' the builder is obrieated ro rar thfi$d'nt4fu$)ft\o bar to take a different ,i"* rrom the eald /ne ir ielCSql.tnd \Pte been brousit betore -.didicarins J;J'ry qfle{i'l[ ]R.{Q f o"'i"" or "e*"p*'i'" :"#:xli*K:hff :[,f#Ir:m:r;r; r,"" "**. t""i"\Rsffipr,ear wourd otherwise work :T:::.::"i#i"effi.ffi #:;:';ff;'::; Ass"t*,t App" i0;:lqsq Pf433 lact@ on 06'02 2oo3 and -t*"i" ,r'" r'""Lz,lJJ S!'l \u?I 6-*'*"hti"ned above so' now the plea raised with regard to maintainability of the complaint in the face of earlier orders of the authority in not tenable The authority can take a diff€rent vie\ r from the earlier one on the basis of new facts and law and the pronouncements made by the apex court of the land lt i land lt is now well settled preposinon ol law that when payment of assured returns is part and parcel ofbuilder buyer's agreement (maybe there is a clause in that *HARERA S-arnuonqtl document or by way otaddendum, memorandum o[ understanding or terms and conditions ollhe allotment ola unitl' then the builder is liable to paythatamountas agreed upon and can'ttake aplea thatit is notliable to pay the amount of assured return- Moreover' an agreement for sale defines ihe builder_buyer relationship So, il can be said lhat the agreement for assured returns between the promoter and an allotee agreement for sale.

Ther be said that the authoritY has comPlete JUrisdr(tron wrth to assured return cases as the contractual relationshi greement for sale only and s iD hand. the iss obligations arisi Petition (Civil) N by the Hon'ble APex into "assured return/co ment for sale.

In th€ case e basis of contractual case of Ploneer Urbon noltndio&Ors (Writ 8.2019, it was obse.ved ...allottees who had entered rns' agreements with these Un ayment ofa substantialportion ofthe total Lt the time ol execution ol agreement' the a certain amount to allottees on a monthly basis from the date ofexecution ot agreement till the date ofhandinsov€r olpossession to the allottees" lt was firrtherheld rbat'amounts raised by develop€rs under assured return schemes had the "commercial effect of a borrowing'which became clear trom the developer's annualreturns in which the amount raised was shown as "commitment charges" unde' the head "financial costs".

As a resul! such allotieeswere held tobe "financial I compla nt no l?1or2022&lotheb *HARERA S- eunuonnl,t cred,tors" with,n the meaning ofsection 5(7) of the Code" including its treatment in books oiaccounts ofthe promoter and lor the purposes of income tax.

Then, in the latest pronouncement on this aspect in case laypee Kensington Boulevani Apartnents wewre Associotion a d Ors. n a d Ors. vs, NBCC (lndto) Ltd and Ors (2403 2021'Sc): MANU/ sC/0206 /2021, the same liew was followed as takeD earlier in the case ofPioneer Urban Land Infrastructure Ld & Anr' with regard to the allottees of assured returns to be fina ors wthin the meaning of section 5(7) of the Cod€.

Then att rnto force the Aci of 2016 w'e f 01.05.2017, rhe burld gister the project with the authoflty being an iso to sectron 3(iJ ofthe Act of2017 read The Act of2016 has no beween the Parties as held by the Hon e Neelkamol Realtors oJ tndia & ors, (suqra) as quoted earlier. so, can't take a Plea th.t rhere was no contractual obligati amount ofassured returns to the he cant wriggle out from that situation by taking a plea of the enforcement ofAct of 2016, BUDS Act 2019 or anv other law' 20.

It is pleaded on b€half of respondent/builder lhat after rhe Banning of ljnregulated Deposit Schemes Act of2019 'ame into force' there is bar for payment of assured returns to an allottee But again' rhe plea taken in this regard is devoid of merit Section 2(4) 'r the above mentioned Act g ol contractual obliS *HARERA S- eunucnm,t dennes the word'deposit'as an orr,ount of monev rcceiwd by t'roy of an ad,)ance or loan or in sny other forlr,, by any deposit toker with o promise tu rctum whether oftet o specifed period or orhe.wise' either in cash or in kind or in the lorm of a specified service, with or wirhour any benefrt in the lorm ol interest bonus, ptofit or in anv ocher lorm' but does not include i. on amount received in the course ol' or for the purpose of' business andbeoting agenuine connecnonb such business including ii. advonce rcceired in u)th constderooon o[ on immavable ProqettJ un ment or arrangement tublect to the condiion that s c? is adjusted agoinst such s ol the ogreenent or affongemenL 21.

A perusal ofth€ a CompaniesAct,2 .onsultation with the e term deposit' shows signed to it under the section ZtlIl rncludes her form bY a comPanY t as may be Prescribed in ia.

Simila. a.

Simila.ly rule 2(cl of tbe 2014 defines the meaning of y way ofdeposit or loan or in any other form by a company but does not include' t. as o advonce, ac,ount?d tor n ont mannPt whotsocvet' ' ,i,"tiia , connection vlnh consideratrcn lar oq immovable Proqerni , ,' "i ii",i*'*,"*a o'd o'otto*"a bv o'v '"'to'ol ' ,iirni, - n **A"nce with itirections of centat or State Covernment; *HARERA S- eirnugRAl/ 22.

So, keeping in view the above-mentioned provisions of the Act of 2019 and the CompaniesAct 2013, it is to be seen as to whether an allottee h €ntitled to assured returns in a case wh€re he has deposited substantial amount ot sal€ consideration against the allotment of a unit with the builder at the time ofbooking or immediatelv thereafter and as agreed upon between them 23.

The Government of India enacted the Banning of Unregulated Deposit SchemesAct,2019 to Provide k .ehensive me€hanism to ban the unregulated dePosrt scheme an deposits taken in the ordinary course of business a lBla(rest of depositors and for ro as defired in section 2 (4) of rhe BUDS 24.

It is evident fr mentioned Act lQ)tt)tiD or tr" 'to'"- ilcd in connection with under an agreement or arrangement subie uch advances are adjusted this doctrine, the view is that ifany person has made a promise and the promisee has acted on such promise and alter€d his position' then the person/promisor is bound to complywith his or her promise' When the builders failed to honour their commitments' a Dumber of cas€s were filed by the creditors at different forums such as l/'khll Mehta' Pioneer Ilrhan Lonit anil tnftastructure which ultimately led the central e perusal ol s.cIlo L complaint no.

173 or2022 & 1 otheB ffHARERA dF- cunueneu government to enact the Banning ol Unregulated Deposit Scheme Act' 2019 on 31.07.2019 in pursuant to the Banning of lJnregulated Deposit Scheme Ordinance, 2 018. ce, 2 018.

However, the moot question to be decided is as to whether the schemes floated earlierby the builders and promising as assured returns on the basis of allotment of units are covered by the abovementioned Act or not.

A similar issue for consideration arose before Hon'ble RERA Panchkula in case Baldev Ga tam vS Rise Proiects Private Limtted (REPiA'P 19, where rn k was held on 11.03.2020 that a builder is ay montbly assured retu.ns to the complarnants till Poss aparrments stands handed 26.

The definition ot tlDS Act 2019, has the anies Act 2013, as Per e (iv). ln Pursuant to section 2(a)(iv) gne o.73 and 76 r€ad with panies Act 2013 rh€ Rules with regard to acceptance ! the companies were framed tn the year 2014 aDdthe same came into force on 01 04'2014' The definition of deposit has been given under section 2 [c] or the above-mentioned ur urPur,! ner Rules and as per clause xii ib), as advance' accounted for rD anv manner whaLsoever received in connection wtth consideration for an immovable property under an agreement orarrangement' provided such advance 's adjusted against such propertv in accordance with the terms oi agreementorarrangementshallnotbeadeposit Thoughthereisproviso to this provision as w€ll as to the amou'ts received urder heading 'a' and 'd' and the amount becoming refun'lable wth or without interest due to ffHARERA S-ounrLenetr.l the reasons that the company accepting the money does not have necessarypermission or approval whenever requiredto deal in th€ goods or properties or servic€s for which the money is taken' then the amouni received shall be deemed to be a deposit underthese rules' However' the same are not applicable in the case in hand' Though it is cont€nded that there is no necessary permission or approval to take the sale consideration as advanc€ and would be considered as deposit as per sub- clause 2(lal(b) but rhe Pl in this regard is devoid olmerit' First ofall, there is exclusio section 2 txrvl[b) which Prov'des that unless s t unless sPecincallY is clause.

Earli€r, the deposits vance wereconsidered as at the money recerved y excluded under thrs schedule ot Regul the Acr of 2019 whic t2 ) The I attowns sho t I o t to clause 2 of the First under section 2 (xvl of eg u lated De\ottt sche hes u nder be hotiffed by the Centrut covemn,lt zz. rrt" ,*"i *". or."n by the builder as deposit in advance against allotment of immovable property and its possession was to be offered withinacertain period.

However in view oftakjng sale consideration by way ofadvance, the builder promised certain amount by way ofassured returns tor a certain period So, on his failure to fulfil that commitment' .2016, it was Pro PHARERA -&- cLrniLennrrr the allotlee has a right to approach th€ authority lor redressal of his grievances by way offiling a complaint' 28. lt is not dhput€d that the respondent is a real estate d€veloper' and it had not obtained registration under the Act of 2016 for the project in question.

However, the project in which the advance has been r€ceived by the developer from the allottee is an ongoing project as per sect'on 3(1) olthe Act of 2016 and, the same woltld fallwithin the iurisdiction of the authority for giving the desjrdd relief to the complainant besides initiating penal P.oceedings.

Sl ount paid by the complainant to the builder is a resulate4 depoiit accepted bv the later from the fo'mer 29.

0n consideratio allotment letter at the g. ttwasalsoagreed that as per clause 2 of a eloper would PrY assured returD to the buyer Rs sq. rt. super area of the said completion of construction of building or the unit is put on lease whichever is €arlier' Though for some time' the amount oi assured returns was paid but later on, the respondent refused to pay the same bv taking a plea ofthe Banning ofUnregulated Deposit Schemes Act' 2019' But that Act does not create a bar for payment of assured returns even against the immovable prolerty to betransferred to theallottee laler on' made by Partie cord rtie cord and submissions ht assured return on *HARERA S-cunueneM after coming into operation and the payments made in tbis regard are protected as per section 2(4)(iii) of the above-mentioned Act 30.

Accordingly, the promoter is liable to pay assured return of the unpaid period as specified under the clause 2 of rhe allotment letter dated 14.03.2018.

F.ll ConveYance deed 36.

Secnon 17 [l) of the Act d conveyance deed executed a (1). rhe ptunoter sholl duty oi Promoter to get the is reproduced below: ":;*:twHRgKH"',',"'," 37.

As oc orthe unu@{${*tj@{QAM-'vconvevance deed cannot be executed without unit come into exrstence for which conclusive proof of having obtained oc from the competent authority and filing of deed of declaration bv th€ promoterbeforeregistering authority' r.III Execudotr of buyer's agneemetrt *HARERA S-eunuonnrvl 38.

A project by the nam€ of One on One situated in sector 16' Gurugram was being developed by the respondent The complainant came to know about the same and booked a unit in it for Rs.

61,87,500/-against which thev paid an amount of Rs.41,S8,000/- The complainant has approached the Authoritv seeking relief wr.t. executioD ol buy€r's agreement inter se parties.

Th€ Authoriiy observes that since the unit was booked under assured return scheme the complainant has alreadv paid the entire amount towards consideralio n of allotted u nit Thc Act of2016 under section ,*o""*O-Or./$ 39.

G.

Directions of the authority 42 Hence. the authoritv hereby passes this following directions under section 37 1jt1t A Dtu;oi; thatt not ocept o tuh note than ten pet ;;t'or Lie cort ot the opannenc ptor' ot butdns a' th' cose -i" ii. ^ ^ "i**i p"v,*t or on apptitutior lee lrod o ;;;n witho nlt,r enhnns into a wntta osteenent lot i[i .i,n i"t' ,i*, *a ,"ssrl be sotd osreen'nt lor ,"".", lHl.,i'#$H'ffi.{d;R[.fu 3(, ) . fu 3(, ) .r,he Ac'i 2016 the resDonrle lislliisl*to 84 He*9|er's agreemenr *-*", ***k"U['f,lJhRI:tt]Vr[r'" a"" or'r'i' order and issue the of the Act to ensure PHARERA S- arnuennu compliance of obiigations cast upon the promoter as per the function entrusted to theauthority under section 34(0: i.

The respondent ,s directed to pay the arrears of amount of assured return at agreed rate to the complainant(s) trom the date the payment olassured return has not been paid t'll the date olcompletion of construction of building.

Aft er completion 1g, th€ respondent/builder ured returns at agreed rat€ of the super area uP ill the unit i5 put on l€ase days from th dues, it any, d rate within 90 ment of outstanding il,ns which that 8.70Y0 p.a. till the The respondent shall execute the conveyance deed oi the allotted unit within the 3 months from the final otter ol possession along with OC upon payment of requisite stamp duty as per norms olthe state government The respondeDt shall not charge anlthing from the complainant[s) which is not the part ofthe agreement of sale' iir. rtt la th *HARERA $-aLnuennl,l 43.

Th,s decision shall mutatis mutandis para 3 ofthis order.

44.

Complaints stand disPosed ol 45.

Filebe consisned to registry' apply to cases mentioned in (Ashok Me tsanjecv 14e 23.05.2023 Haryana Re rugram HARERA GURUGRAM s6 M s+t rno.173 0f2022 & 1other.