SHANI JOHAR vs VATIKA LIMITED

HARERA GURUGRA[/ Comblaintno 1a60o12022 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM R/or C'5 3, Sushant Lok I,Gurugran, Haryana- 122009.

Advo.are for the compla inaDt Sh Sanl-.-"v }(unrar Arora 1.

Advo.ate for the respondent ORDER The present complaint has been filed by the complainant/allottee under section 3l oftheReal Estate (Regulationand Development) Act,2016 (in shor! the Act) read with rule 28 ofthe Haryana Real Estate (Regulation and Development) Rules, 2017 (in short, the Rules) for violation of section 11(4)(al of the Act wherein it k inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and 1a6O ol2022 21.o4.2022 20.07.2022 25.07.2023 address: Vatika Triangle 4rh noor, Sushant Lok, Phasc l, BlockA Meh.auli, Gu.usram Roid, functions under the provisions oi the Act or the rules and regulations made there under or to the allottee as per the agreement for sale executed A.

Prolect and unlt related detalls 2.

The particulars of the project, the details of sale consideration, the amount paid by the complainanl date of proposed handing over the possession, delay period, if any, have been detailed ,n the following *HARERA db- eunuennvr (umplarnt no 1860 of 2022 I Name and location of the Vatlka INXT Ciry Centre, Cu.saon 2 4.

258 oI2007 13.06.2016 1 Date of buyer's 03.I2.2009 (Prge 15 ofcomplarnt) 1022, 106 fl oor, tower no.

A admeasurin€ Assxr.d rehrrn clause A.

Ttll conpleuon of the building Rs.

B.

After completion olthe building Rs. l0 Rs.24,50,000/ 11 Totalamount paid by the 12 Date of offcrolposses$on OL.upaton cerr'ficate Facts ofthe complaint B, *HARERA S-GURUGRAM Compla ntno 1860 oi20Z2 l.

4.

5 Thatsometime in 2009, the respondent approached the complainant and offered to sell them a comme.cial unit in the project, turther on which they promised "guaranteed and assured return" on the money/substantial amount for the said unjt that would be the complainant. mplainant.

The respondent would allot the commercial units to the complainanf immediately upon payment and pursuant to that, they would pay monthly assured return to him in the form ofinierest on the That believing upon the assuraDces and commitments made by the respondent, the complainant agr€ed to part w,th his money.

Subsequently, from 2009 onwards, the complainant foMarded a total amount of Rs.24,50,000/- to the respondent towards the basic sale Therefore, as per the agreed terms, a sum ofRs.49,140/'was to be paid between 2009 to 2016and Rs.40,950/- from 2016 onwardsbetweenwas payable bythe respondent to thecomplaimnt, every month for the unit.

A letter dated 27.07.2011 for re'location ofthe commercialproiect was sent by the respondent to the complainant informing her that they are shiftingthe projeclto a difiere.* locat,oD.

Furtheritwas orally inform€d thatallthe clause, agreements and amount will remain same.

Thereafter, a letter dated 31.07.2013 was sent by the respondent to the complainant informing shifting ofthe unitno.1023,1orh floor to 420,4rd floor, block A, India City Centre, N H-8, Sector-83, Gurugram.

Thereafter, a letter dated 29.03.2016 was sent by the respondent to the complainant informing them about the completion of construction for block A, Vanka INXT, Gurugram, however even after repeated requests bythe complainant, the respondent f,ailed to provide the occupat,on certificate/complet,on compldint no.

1860 of2022 RA RAIV IARE GURUG tr IS 6.

That subsequently, the respondent kept paying the complainant, the assured monthly amount after deducting TDS and the CST for the post which, on 3110.2018 an email was sent bv the respondent to lhe complainant informing about the suspension ofallassured return' 7.

Thatas pertheterms and conditions olthe agreernentth€ respondent did not remit the promised amount Upon askiDg, the oflicials' the complainants were told thatthe respondent is undergoing some internal transitionandtherearesomeiormalitieswithrega'd withrega'dstoRERAthatneed to be complied by the respondenLthus, there shall b€ some delay in the payments.

However, the same iioulil be resumed in some time' 8.

That the respondent kept on delaying the payment ol the assured committed to returning to the complainant on some pretext or another' despite various meetings/discussions and \"lsits bv the complainants The respondent has failed in their commitments as per agreed t€rms 9.

That the resPondent made last pa)'rnent of assured return on till July 2018.

Thereafter the respondent arbitranly stopped the payment to the complainants, despite the fact that they were bound by the terms of th€ above'mentioned buyer agre€ment which in ful) lorce and thus' the respondent is duty_bound to pay ihe assured return on a monthlv basis to the comPlainanL 10.

The complainant has been under lr€mendous mental stress and agonv due to the conduct ofthe respondent' None olthe commitments ofthe respondent have come true.

In these facts and circumstances' the complainants is nowleftwith no option butto filethis present complaint tor which, after seeking oflegal advice the complainant approached the Authority, seekingjustice and reliefinter'alea in terms ofthe time-bound assured return from the date olcompletion certificate is granted by the authority alongwith interest astheAuihority may deem deservingin the PaCe l ofZZ *HARERA S- ctrRrrGRAr\r Complaintno.

1860of 2022 c. present case and iB €ncumstances and also s€eking justice, which, the complainant so urgently and ardently deserved.

Rellef sought by the complalnantsl The complainani has sought tollowing relie(sl: i.

Directthe respondent to pay the monthlyassured returns. ii.

Direct the respondent to pay interest at prevailing rate on the amount paid by the complainant.

On the date of hearing, the authority explained to the respondents/ promoters about the contravenlions as alleged to have been committed in relation to section 11(4) (a) ofthe act to plead guilty or not to pleid guilty. id guilty.

R€ply by the respondents The respondents have contested the complainton the following grounds. a.

That the complainant has gotno locus standi or cause ofaction to file the present complaint.

The present compla,nt is based on an erroneous inlerpr€tation ofthe provisions oithe Act as well as an incorrect understandlng of the terms and conditions ofthe builder buyers' agreement dated 03.12.2009, as would be evident Fom the submiss,ons made in the following paras ofthe reply. b.

That at the very outset it is subm,tted that the complaint is not maintainable or t€nable in the eyes of law The complainant has misdirected himself in filing the above captioned complaint before the Ld.Authorty as the reliefs be,ngclaimed by him cannot be said to fall within the realm ofiurisdiction olthe Authority. lt is humbly submitted that upon the enactment of the Banning oi Unregu)ated Deposit Schemes Act, 2019, (hereinafter referred as BUDS Act) the 'assured return' and/ or any "committed returns" on the deposit schemes have been banned.

The respondent having not taken 11.

D. *HARERA $- cunrnnlvr d complarnt no r860 of2022 registration from SEBI board cannot run, operate, continue an assured return scheme.

The implications ofenactment ofBUDSAct read with the Companies Act, 2013 and Companies (Ac€eptance of Depos,ts) Rules, 2014, resulted in making the assured return/committed return and similar schemes as unregulated schemes as being within the definition of"Deposit".

That as per Section 3 of the BUDS Act all Unregulated Depos,t Scheme have been stricdy banned and deposit takers such as builders. cannot. directly or rndrreclly promoie. operlle. issue any adverusemenls lolxrtrng parddpdlion or enrolment ini or accept deposit.

Thus, the section 3 of the BUDS Act, mak€s the assured return schemes, of the builders and promoter, illegaland punishable underlaw.

Further as pertheSecurities Exchange Board oflndiaAct, Iqcz (herelnafter relerred as sEBl Act'l Colle. t'l Colle.iive Invenmenl Schemes as defined under section 11 AA can only be run and operated by a regrstered company.

Hence, the assured return scheme ofthe respondenl has become illegalbythe operation oflaw and the respondent cannot be made to run a schem€ which has become infructuous by law.

That it is pertrnent to mention lhat the present complaint is not maintainable befor€ theAuthorityas it is apparentfrom the prayers sought in the complaint.

Further it is crystal clear frorn reading the €omplaint that the complainant is not an 'allottee', but purely is an 'investor', who is only seeking physical possession/delay possession charges from it, by way of present petition, wh,ch is not mdrnlrinrble as the unrl i< not mednl lor personal Lse rarher it is meant for earnine rentalincome. {}HARERA $- clnrnnarr,t t Complaintno.

1860 of 2022 That it is also releva.t to mention here that the commercial unit of the complainant is not meant ior physical possession as the said unit is only meant for leasing the said commercial space for earning rental income.

Furtherrnore, as per the agreement, the said commercial space would be deemed to be legally possessed by the complainant.

Hence, the commercial space booked by the complainantisnotmeantfo.physical possess,on.

That in view ofth€ judgment ard order dated 16.10.2017 passed by the Maharashtra RERA Authority in the complaint titled lttofteerr Porioni vs.

Monard So aalre order, complaint No: CC00600000000078 of2017 wherein it has been observed that in casewhere the complainant has invest€d money in the project with sole intention of gaining proffts out of the project, then the complainantisin the position ofco.promoter aDd cannotbe treated as'allottee'.

Thus, in view ot the aforesaid decision, thecomplainant could not and oughtnot have tiled the presen t .omplaint being a co' That in the matter ol Brhtmjeet &Ors vs.

M/s Londmaik Apartments M.ltt. (Camplatnt No. platnt No.

141 of 2018), this Hon'ble Authority has taken the same view as observed by Maharashtra RERA in Mahesh Pariani (supraJ.

Thus, the RERA Act, 2016 cannot dealwith issues ofassured return.

Hence, the complaint deserves to be dismissed at the very outset.

That further in the matter of Bharan Singh &Ors vs.

Venetian LDF Projectr rlP (Complaint No.

175 of2018), the Hon'ble RealEstate Regulatory Authority, Gurugram upheld its earlier decision of not entendininq dny ma$er reldled lo rssured returns, ffHARERA $-atnuennut complaintno.

1860ot2022 i.

That the complainant has come before the Authority with un_clean hands.

The complaint has been filed by the complainant just to harass the respondent and to gain unjust enrichment.

The actual reason for filing ofthe complaint stems from the changed financidl valuat,on of the real estate sector, in the past few years and the allottee malicious intention to earn some easv buck The covid pandemic has given people to think beyo.d the basic legal wav and to attempt to gain financially at the cost ofothers.

The complainart has inst,tuted the present false and vexatious complaint againstthe respondent who has alreadyfulfill€d its obligation as defined und€r the buyers' agreement dated 03.12.2009.It is pertinent to ment'on here thrl for th€ iair adludication of grievdnce ds alleged bv rhe complainantr deLailed d.liberahon by leading the evidence and ..*"o nii,iu- is require4 rhus onlv the civil court has jurisdiction to deal with the cases requiring detailed evidence for proper and fdir adtudicrtion J. lt is <ubmined that the lomplainaot entered into dn agreement I e builder buy€rs' agr€ement dated 03.12.2009 with respondent owing to the name, Sood would and reputation of the respondent' It is.a matter ofrecord that the respondent duly paid the assured return to the.omplainant hll september 2018.

Due to external crrcumsrdnce whrch w"re nol in ronlrol ol lhe respondenl 'onslructlon got deierred. deierred.

Even lhough the respondent sultered from setback due lo exlernal (r r.u mttdn.P(. yet il mrndged lo complete rheconstru'tion' k.

The complaint of the complainant has been filed on the basis of incorrect understanding ofthe object and reasons of enactment df the RERA, Act,2016.

The legislature in its great wisdom' understanding the catalytic role played bv the Real Estate Sector in *HARERA !S- cumcnnu C.mblaintno 1360of 2022 fulfiUing the needs and demands for housing and infrastructure in the country, and the absence of a regulatory body to proviCe professionalism and standardization to the said sector and to address all th€ concerns oa both buyers and promoters in the real estate sector, drafted and not,fted the RERA Act,2016 aiming to gain a healthy and orderly growth of the industry.

The Act has been enacted to balance the ,nteresls ol consumer and promoter by impos,ng certain responsibilities on both.

Thus, while section 11 to section 18 oith€ Act, 2 016 describ€s and presc.ibes th€ lunction and duties of the developer, a&or 19 provides the rights and duties iif allottees.

Henre, the A(r, Zulo sa( never rntended to be bia\dd legislation prefering the allottees, rather the intent was to ensure thatboth theallottee and the developerbekept at par a.d eitherof the party should not be made to suffer due to act and omission of l.

That in matter titled, noop Kumat Roth vs M/S Shethlnlra,r/oiid N" Ltil. in appeal no.

AT00600000010822 vide order dated t0.08.201q rhe Maharashtra Appellrre Tribunal whrle ddiudi.rl,nB poinrs be consrdered while granting reiref and lhc spirrt and oblect behind rhe enaclment ot the AcL 2016 in prra 24 and pdra i5 drscussed rn detail the aclurl purpos" of marntarnrng d fine balance between therightsand duties of the promoter as well as theallottee The Ld.

Appellate Tribunal vide the said judgment discussed the aiin and obiect ofthe Act,2016 m. ct,2016 m.

That the complainant is attempting to seek an advantage of the slowdown in the realestate sector, and it is apparentfrom the facts ofthe present case that the main purpose of the pr€sent complaint is to harass the respondent by engagingand ignitlng frivolous issuls *HARERA $-arnuenqttt Lompl:rnt no. l86U of 2022 wirh uherior molives Lo pressurrTe lhe rF\pondent' Thus' ihe .omplarnl is wilhout rny brn\ and no cause ot actlon has ansen dll ddte in favour oi the complainant and rgrinst (hP respondent and hence, the complaint deserves to be dismiss€d' n.

That it is brought to the knowledge ol the Author'ry that the complainanr is guilty oi plac,ng untrue facts and is attempting to hide the true colour of the intention ol the complainant' Before buying the property, the compla,nantwas aware ofthe status ofthe project and the fact that the commercial unit was only intended for lease and never ior phvsi.il possession' o.

That. it is evident that the entlre case ofthe complainant is nothing bur a web ol lres and th€ false and fflvolou5 allegdrron' mdde against the respondentare noihingbut an aftenhought, hence the complJlnt filedbythe complainant deserves to bedismissed with healv cost!' p.

Thatthe various contentions raised bythe complainantis ncdtioG' baseless, vague, wrong aod created to misrepresentand misleadthb Authority, for the reasons stated above lt is further submitted that none of the reliefas prayed for by the complainant is sustainable' in the eyes of law.

Hence, the complainl 's liable to be dismhsed with imposilion of eYemplary Lost lor wa(trng the pre(ioul time and efforts oa the Authority.

The complaint is an utte' abuse oi the process oflaw, and hen€e deserves to be dismissed' 12.

Copies of aU the retevant documents have been nled and placed on the record.

Their authenticity is not in dispute' Hence' the complaint can be deci.led on lhe bd5is ol rhP(e undisputcd documents and submission made by the Parties.

E. arties.

E. lurisdiction of the authority *HARERA $-cLnLrc,mvr ComphLntno 1860 of2022 13.

The respondent has raised preliminary obiection regarding iurisdicti0n ofauthority to entertain the present complaint.

The authority observes that it has territorial as well as subject matter jurisdiction to adiudicat€ the present complaint for the reasons given below.

E.

I Territor,al tu sdi.tion 14.

As per notification no.

1/92/20t7'1'lCP dated 14.12.2017 issued by Town and Country Planning Department, Haryana theiurisdict,on ofReal Estate Regulatory Author,ty, Gurugram shall be entire Gurugram Distrid for all purpose with omces situated in Curugram ln thepresentcase, the proje.t in quenion rs s'ruated wilhln rhe pldnning rred or Curugram District.Theretore, thisauthorilyhas complelte territorial jurisdiction to dealwith the present complainL E. ll Sublect-matlo. lurisdlcilon 15.

Section 11(41(al of the Act, 2016 provides thit the responsible to the allottee as per agreement fnr sale' promoter shall be Section 11ta)(al is reproduced as hereunder: sectid t1(4Yo) Be r5ponsihle .or all oblilationt esponsb tties ond functions under ihe p.ovisions oI this Act ot th. rul6 and resutotions node rhqeund;l o @ e ;ttatreet ds per the osr.enent for sale ot to the associotioo q alotbei.d the.oft hav be' till the conretoh@ i ofa rhe aponnents,plosot Dtndng!'",the o'e4a!bP tathe ;tto ees. ot the,ondon dn^ to Oe osoctouon olottott*.ot theenpetentouthoriE,as the case nov be; fhe provxion al o$u.ed returns is pofi al the butlder bulet's ogteenent,as per cloue ls olthe BBA dokd.......

Accordinglv the pronoter is rcsponsible lor all obligarions/resPonsibiliti* - on.t t'uhctions nctudins por ent al asuted returns as prcwded in Builde.

Buler's Ag.eenent Section j4-Fun atons oJthe authotiry: 34A olthe Act provid* to ensure canplionce ol the obligations cost upon the pronot{t the ollone5 ond the real estote ogents under this Act on.l the rules and .egulonans node thereunder. hereunder.

17 I:, *HARERA dF- cirnuen,qut So in view of the provisions of the Act of 2015 quoted above' the authority has complete iurisdiction to de'id€ the complaint regarding non'compliance of obligations bv the promoter leavins aside compensation which is to be decided by the adjudicating officer if pursued by the complainant ata later stage' Findings on th€ reliefsought by the complainant: While filing the petition besi'l€s delayed possession charges of the allotte.l unit as per addendum to the agreenrent' the claimant has also sought assured returns on monthly basis as allotment letter at tbe rates mentioned therein till the completion of the buildr'g' lt is pleaded that the respondent has not complied with the terms and conditions of the allotment letter.

Though for some time' the amount of assured returns was paid but later on, the 'espondent refused to pay the same by taking a plea ofthe Banning ofUnregulated Deposit Schemes Act' 2019 [herein after referred to as the Actof 20191' BLttthat A't does not create a bar for paymeDt ol assured returns even after coming into operation and the payments made inthis regardare protected as per section 2[4](iiiJofthe above-menti oned AcL tlowever, the plea of respondent is otherwise and whotook a stand $atthough itpaid th e amount of, assured returns upto thevear2018 butdid not pay the same amount after coming into lorce of rheAct of2019 as itwas declared illegal' 18.

The Act of 2016 dennes 'agreement for sale" means an ag€ement entered into between the promoter and the allottee lsection 2(c)] An agreement for sale ,s defined as an arrangement entered betw€en the promoter and alloftee with freewiu and consent of both the parties An asreement defines the rights and liabilities of both the parties i'!' Pa9e 12 ol22 *HARERA s-cunucnnnl arise for consideration as to: i.

Whether the authorily earlier stand regarding and circumstances. umstances.

Comp a nrno 1860 of20?2 promoter and the allottee and marks the start of new contractual relationship between them This contractual relationship gives rise to future agreements and transactions beFveen them Thedifferentkrndsol payment plans were in vogue and legal within the meaning ol the agreement for sale.

One of the integral part of this agreement rs the transaction of assured return inter_se parties 'lhe 'agreement for sale" after coming into fo.ce of this Act [i.e., Act o12016] shall be in the prescribed lorm as per rules but this Act of 2016 does not rewrite the "agreement' entered between promoter aDd allottee prior to comnrg into force of the Act as held by the Hon'ble Bombav lligh Cou.t in case Neelkamal Reattos suburban Prtvate Limited and Anr. v/s uniot ol tndia & Ors., [wri.

Petltion No.2737 of2017) decided on 0612.2017, Since the agreement defines the buyerPromoter relationship the.eiore, it can be said that the agreement lor assured returns between the p.omoter and allottee arises out olthe same relationship Therefore, it can be said that the real estate .egulatory authorrty has complete iurisdiction to deal with assured return.ases as the contractual relationship arise out of agreement for sale only and berween the same parties as pe. the provisions ofsection 11(a)(a) olthe Act of 2016 which provides that the promoter would be responsible fo. all the obligations under the Act as per the agreement for sale till the execution of conveyance deed olthe unit in favour of the allottee.

Noiv, three 'ssues is with,n its jurisd,ction to vary its assured .eturns due to changed facts PaE t3 ol22 19. while taking up the cases ot Brhimjee, & Ant. vs.

M/s Landmark Apartments Ptu Ltn. (complotnt no 747 of 2018), and Sh.

Bhamm slngh & Anr. ys. venetaln LDI ?rojects LLP" (supra), it was he]d by the authority that,t has no jurisdiction to dealwith cases ofassured returns.

Though in those cases, the issue ofassured retu. ured retu.ns was involved to be paid by the bu,lder to an allottee but at that time, neither the full facts were brought before th€ authori9 nor it was argued on behalf of the allottees that on the basis ol conlractual obllgations, the build€r is obligatedto paythatamount.

H owever, there is no bar to take adifferent view from the earlier one ifnew facts and law have been brought belore an adjudicating authorityor the cou(.

There is a doctrine ol"prospective overruling" andwhich providesthatthelaw declared by the courtapplies to the cases arising in future only and lls appl,cabilityto the cases which have attained Rnalityis saved because the repealwould otherwise wo.k hardship to those who had kusted to its eistence.

A relerence in this regard can be made to the case of Sarwan Kumor &Anr vs Madan Lol Aggotwal Appeol (civil) 1058 ol 2003 decided on 06.02.2003 and wherein the hon'ble apex cou.t observed as mentioDed above.

So, now the plea raised w,th regard to maintaiDabiliry ofthe complai.t in the tac€ of earlier orders ofthe authoriry in not tenable.

The authority can take a diferent view from the earlierone on the basis ofnew facts and lawand lhe pronouncement( mdde br rhe aper court ot the lrnd. lr i\ now well SHARERA 4, cunrcnlrl complarnt no r860 of 2022 whether the authority h competentto allow assured returns to the allottee in pre-RERA cases, after the Act of 2015 came into operation, iii.

Whether the Act oi2019 bars payment ofassured returns to the allottee inpre-REM cases *HARERA $-eunuenevt settled preposition ollaw that wben payment of assured returns is pan and parcel otbuilder buyer's agreement lmaybe there is a clause in that document or by way oladdendum, memorandum of understandin€ or termsand conditions ofthe allotmentola unit), then thebuilder is liable to pay that amount as agreed upon and can'ttake a plea that itis not liable to pay the amount of assured retu. ured retu.n Moreover, an agreement for sale dennes the builder_buyer relationship' So, it can be said that the agreement for assured returns betlve€n the promoter and an allotee arises out of the same relationship and is marked by the original agreem€nt for sale Therefore, it can be said that the authoritv has complete iurisdiction wilh iesped to assu'ed return cases as the contractual relationship ar,ses out of the ag'eement ior sale only and between the same contracting parties to agreement for sale- In the case in hand, the issue of assured returns is on tbe basis of contractual obligations arising between the pardes Then in case of Ploneer Urbon Lanat anil tnhostructure Limtted & AnL v/s Unton ol Indla & Ors (Writ Petitlon (Ctvit) No.

43 ol 2O7g) dec ied on Og 08'20' 9' it was observed by the Hon'bl€ Apex Court ofthe lan.l that ""'allottees who had entered into "assured retum/committed returns' agreements with these developers, whereby, upor payment of a substantial portion ofthe total sale consideration upfront at the time of exe'ution ol agreem€nt' the developer undertook to pav a certain amount to alloftees on a monthli basis from the date of execution of agreement till the date of handing over ofpossession to the allottees"- Itwas further held that'amounts ra'sed by developers under assured return schenes had the "commercial efleit of a borrowing' which became clear from the developer's anDual returnsin which the amount raised was shown as "commitment charges" underthe head "financial costs".

Asa result, such allottees were held to be "financial Page 15 of22 ffHAIIIIIA €!- clrnrcnnrl creditors" within the meanjng otsection 5(71 of the Code" including its treatment in books ofaccounts ofthe promoter aDd for the purposes of income tax.

Then, in the latest pronouncement on this aspect in case Iowee Kenstngton Boutevaril Aportments weuare Asso'lation dnll Ors. vs.

NBCC (tndia) Ltd snd Ors. (24.03. s. (24.03.2021-SC): MANU/ SC/0206 /202I, the samev,ewwas followed as taken earlier in the case ofPioneer Urban Land Infrastructure Ld & Anr. with regard to the allott€es of assured returns to be finan€ial creditors within the meaning of section 5(7) or the Code.

Then after €oming into iorce the Act of 2016 we'f 01.05.2017, the build€r is obligated to register the project with the authority being an ongolng proJect as per proviso to section 3(1) ofthe Act of2017 read witn rule 2(o) ofthe Rules,2017' The Act of2016 has no provision fo. re'writing of contractual obligations between th€ parties as held by the Hon'ble Bonbay High court il case Neelkamal Realtors suburbon P vaa; l,tmitei! ond anr, v/s union ol lndla & ors'' (suira) as quoted earlier' So, the respondent/builder can't take a plea thatthere was no contractual obligation to pay theamountofassured returns to the dllottee after thP Art ol 2016 came into lorce or that d new agreemeni is being executed with regard to that fact' Wh€n there is an obligation ofthe promoter against an allottee to pay the amount ofassured returns' then he can'l wriggle our ftom thdl situation bt takrng a plea of the enlorcement ofAct ot2016, BUDS Act 2019 or anv other law 20.

It is pleaded on behalf of respondent/builder that after the Banning of Unregulared Deposit schemes Act of 2019 came into torce' ttrere id'bir for payment of assured returns to aD allottee But again' the plea taken in this regard is devoid ol merit.

Section 2[4) of the above mentioned Act delines the word ' deposit as on omount of monev received bv wav ol an odvance ot loan or in onv othet forn' by ony deposit toker with a ptomise PaCe 16 ol22 to tetum u,)hethet after a speciled peiod ot orhetwise, either in cash or io kind or in the torm of a specified sFrvice. wili or without ont benci! ih the lorm ofinterest, bonus, proJit or in any atherfom, but does not include i. include i. an amount received in the course ol ar for the purpose of, business and beo ng a genuine connection to such business including- ii. advance received in connection with considerotton of an imnoroble properry under an agreementor arrongement subject to the condition that such odvance is atijusted oqoinst such inmovoble propertJ as spec$ed in terns ol the ogreement or . orrongenenc 2 1.

A perusal of the above'mentioned definit,on of the term deposit' shows that it has been given tbe sam€ meanirg as ass,gned to it under,the Companies Act,2013 aldthesame provldes under section 2(31) inclqde$ any receipt by way ofdeposit or loan or in any other form by a company but does not ,nclude such cateSories ofamount as may be prescr,bed in consultahon with the Reserve Bank of India Similarly rule z(cl of the Conpanies (Acceptance ofDepositsl Rules,2014 defines the meaning of deposit which includ€sany receipt ofmoney by way ofdepos,t or loan or in any other form bya companybut does not include. i os o odvance, accounted Jor tn ony monner wholsocver' received in connection rrith consideration lot an imnovoble property ii. os an advance received and ss ollowed by ony sectoral regulator or th accordance wlth dlrections ol Central or Storc Governn?nt: 22.

So, keeping in view the above-mentioned provisions o,the Act of 2019 and the Companies Act 2013, it is to be seen as to whether an allonet ,s entitled to assured returns in a cas€ where he has deposited substantial amount of sale coDsideration against the allotment of a unit with the builder at the time ofbooking or immediately thereafter and as agreed upon between them. *HARERA 9F- crtnttcnntvt Comphrnt no.

1860 ot20Zz 23.

The Covernment ol lndia enacred the Banning of Unregulated Deposlt Schemes Act.20lc ro pr ovide for a.omprehensive mpchrnism ro ban the unregulrted deposir <.l"eres. other thrn deposrr. !aken in lhe ordrnary course of business and to protect the interesr oi depositors and ior matters connected the. ected the.ewith or ,ncidenral thereto as defined in section 2 (4) ofthe BUDS Act 2019 mentioned above.

24.

It is evident from the perusal of sectioD 2(4)0)(ii) of the above- mentioned Act that the advan.es re.eived in connection with consideration of an immovabte properry under an agreemenr oi. arrangement subject to the condition that such advances are adjujted against such immovable propertyas specified in rerms of the agreement or arrrngemenr do not tall withrn the tFrm ol'deposrr whrch have been banned bytheAcrof2019.

25.

Moreover, the developer is also bound by promissory estoppel- As per this doctrine, the view is thatifany person has made a promis€ and the promisee ha\ a(ted on such promise dnd dllered hrs posriron. then rhe person/promrsor rs bound to comply wilh his or her promise.

When rhe builders failed to honour their commitments. a number of cases were trled by the creditors rr diflerenl lorums such as lVikhil Mehta, Pioti"r Urbon Lond and l mslructure $hnh uhimrlely led rhe rentral government to enact the Bannin8 of Unregulated Deposit Scheme hci 2019 on 31.07-2019 in pursuant to the Banning of Unregulated Deposit Scherne Ordi.ance,2018.

However, the mootquestio. ro bedecided is as to whether the schemes floated earlier by the builders and promising as assured return( on lhe brsrs ol dllotment ol units are covFred by the abovementionedAct or not A similarissue forconsideration arose beaore Hon'ble RERA Pa.chkula in case Baldev Gautam VS Rise Projects Private Limited (RERA-PKL-2068-201|) where rn r wa( held oir THARERA !Heunucmv Compla nt no I8b0 or2022 Pagelaof22 Cumplarnt no.

18b0 o12022 RA RA[4 ARE URUG H G u I 1.03.2020 thai a build.r i( liablp ro pdy monthly dssured relurns lo:the complainants till possession of respective apartments stands handed overand there i\ no rllFgalrty rn thrs regdrd.

The deffnition of term 'depos,t' as given in the BUDS Act 2019, has the lrme meaning as rs5igned ro ir under the Companie\ Act 2013.

Act 2013. as?er secnon 2(4)(iv)(,1 ,.e., explanat,on to sub-clause (iv). ln pursuant to powers conferred by clause 31 of section 2, section 73 and 76 read with sub-section 1 and 2 olsection 469 ofthe Compa.ies Act 2013, the Rules with regard to acceptance ofdeposlts by the companies w€re iramed in theyear20 l4 and the sameramernto lorreon 0l 04.20l4.Thederrn(ron of deposit has been given under section 2 tcl of the above-m€ntioheA Rules and as p€r clausexii (bl, as ad;nce, accounted for in any manner whatsoever received in connection with consideration lor an immovable properry under an agreement orarrangemenl, provided such advance rs adjusted dgdinsl such ptoperry in rccordance wrrh rhe Ierm; of agreemen( or arrdnSement shal. nol b" r depo\ii.

Though there rs proviso to this provisiol aswFli rs to thFamounts recerved underhedding'r'and 'd'and the amount becoming retundable with or without interest dub to the reasons that'the company accepting the money does not have necessarypermission or approval whenever required to dealin the goods or properties or seryices for which the money is taken, then the amount received shalibe deemed to be d depo\ir underrhese rules.

However, (he same are not applicable in the case in hand.

Though it is contended that there is no necessary pernission or approval to take the sald considerdrion ds ddvdn, e and woutd be con\rdered ds dpposit r< per dub. clduse 2(rv)tbl bur rh. plea adranced rn thrs regdrd rs de!ord of merit.

F,rst ofall, there is exclusion clause to section 2 [xiv)(b) which provides that unless (pecrllcdlly e\cluded undFr this clau.e.

Earlier.

Ihe deposits 26. *HARERA S-c,unucnml anm6la nt no 1860 of2022 received by the companies orthe builders as advance were considered as deposits but w.e.f.

29.06.2016, it was provided that the money receiid{ as such would not be deposit unless spec,fically excluded under this clause.

A refe. e.

A refe.ence in th,s regard may be given to dause 2 olthe Fy'r:l schedule of Regulated Deposit Schemes framed under s€ction 2 (xv0 of the Act ot 2019 which providc\ a1 undFr:. (2) f he following shall aha be treoE.l os Regutoted Deposit Schemes undet thk Act namelyr [a) deposits occepted Lndet ant shem., or on aftongenent rcgisterdl with ony resulatory bodt in India constxuted or established undt : . . o stotuteiond [b) any other {hene os nar be notified by the centol co uaaPrth^ A L 27.

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

However, in view of takirg sale consideration by way ofadvance, the builder promised certain amount by way olassured returns for a certain period.

So, on his failure to fulfil that commitment, the allottee has a right to approach th€ authority lor redressal of his grievan.es by way offlling acomplarnL 28.

It is notdisputed t!atithe respondentis a realestate developer, and ithad not obtained regBti tion under the Act of 2016 for the project in question.

However, the pro,ect,n which the advance has been receiled by the developer ircm the allottee is dn ongoing protect as per section 3(l) o, the Acl or 20l6 and. lhe same would lall wilhin the iurisdiflioh ol the authority for giving the desired relief to the complainant b€sid6S rnitiaHng pendl ptoreedrngs.

So. rhe amount pdrd by rhe complainani to $e builder is d regulaled deposit ac(epred by ihe later from the tormer against the immovable property to be transferred to the allottee lateron.

29. on consideration of documents available on record and *tmissitns made by panres. lhe compldrnanls have soughl as(ured return on ?aAe 20 of22 #IARERA 9H cLrnrcnntr,r comphintno.

1860oi?022 monthly basis as per one o[ the provhions oF allotment letter at th; agreed rates nI the date ofcomplerion of building.

Ir *r. at"o rg. . at"o rg."ea i"l as per addendum to th€ agreement, the devetoper would pay assured rerurn to rhe buyer Rs.

78l. per sq. n. \uper arpa of rhe said commerfrat un,l.

The said clause turrher provides thal it woutd pry dssured retum to the buyer after lhe comptpllon ot burtding Rs.

55/ per \q.ft. per month on super area for upto three years from the date of comptetion of construction ofbuilding or the unit is put on lease wh,cheve. is earlier.

Though lor some nmp. rhe amount otds\ured returns wrs pard bur lirer on, the respondent reaused to pay the same by takiDg a plea oi rhi Eannrng ol Unregulated Deporr Srhcmes Act. z0 tq.

Bur that Act does not create a brr lor payo.nr of assurerl returns cven aiter com,ng inro operation and the payments made in this regard are prorected as pei se(t,on 2(4J(llil olrhe dbove.menrioned Act 30.

Accordingly, the promoter is liable ro pay assured rerurn ofrhe uni]all period as spec,ned under the addendum ro the agreement dated 03.12.2009.

Directions of the autho ty I )) G.

3l Hence, the authoritv hereby pass* rhb order and issue rhe foltowine directions under sectron 37 ot rheAct ro ensure (omptirn, e ofobjrgaiions cast upon the promoter as per the funct,on enFusted to rhe authority undersection 3a(0: i i.

Th€ respondent is direded to pay the arrears ofamounr ofassured return atagreed rateto the complainant(sl from rhedate ttre payriient of assured return has not been paid till rhe dare of comptetiol ;i construction ofbuilding- Aft€r completion otthe construction ofthe buildin& the respondent/builder would be liable to pay monthty PaCe2l ol22 *HARERA S, eunLrennv ii. assured returns at agreed rate ofthe super area up to 3 years theunitis puton lease whichever is earlier.

The respondent is also directed to pay the outstanding interest @8.70% p.a. tillthedate otactual real,zatio.. al,zatio.. iD The rerpondent shrll not c whjch is not the part ol Complarnts srand disposed HARERA GURUGRAM assured return amount till date at the agreed ratewithin 90 days the date oforder after adjustm€nt oloutstanding dues, ifany, thecomplainantand faiUngwhichthatamountwould bepayable 32.

33. anything trom th€ complain Authority, C lolt