MOHAMMAD SHAFI vs VATIKA LTD

i}HARERA S-eunuonnv BEFORE THE HARYANA REAL ESTATE RECULATORV AUTHORITY, GURUGRAM ColnptatDrno.

First date of heariogl Dareofd€ctsion Mohammad Shaft I/:..9l:1. !"** floor. cre er Kairash.j.

NeB Derhi-110048 Vercus 0l,F Vdr.k. " rnB.e 4tr Ftoor. su5ndn.

Lot.

PhrsF-t.

IJto, k l MehrdLtr.GuEaon Road, {,ureaon-I22002.

CORADI: shri Sanjeev kumarArora APPEARANCE: 5h.

Cdrvrt CuprJ [Advocare] Sh Ankur Berry lAdvocatel Counsel for rhe comptatnanr coun5els lor the Respondent SZOO ol2022 20.09.2022 14.07.2023 ORDER 1.

Th€ present complainr dated 21.07.2022 has been fited by the complainants/allottees under section 31 ofthe Real Estate [Resularion and Developmenr) Act,2016 [in short, the Act) read wfth rute 28 ofthe Harvana RealE<late tRegutarion and DevelopmenrJ Rutes,20rZ trn stro.t, ttre ruresl for viotation of section 1 t (4Xa) of the Ad wherein ir is t rer al,o prescribed that the promoter shatl be responsible for atj obligar,ons, responsjbiliries and functions Lrnder the provisjon ofthe Ad or the Rules and regulations Complainant Respondeot No.

52A0 al 2O2i *HARERA 9E eunuonnlrr 2 Unitand proiect retated deta s The particutars of unit detaits, sale consideration, the amount paid by the complainants, date ofproposed handingover the possession, detay period, if any, have been detaited in the following tabular form: or to the allonee as per the agreement for sale executed Name and locarion of tlF 'vatlt<a tnxr crry cmteiii-mtor ar GuruSram Haryana. lr3 sof 2008 dated 0r.06 2o0S qtrd upto li#ir# ** 1s.0e.2010 varid upto RERA Registered/ ;; 40 of 202r wtid qto 3t.oilt2i 3058,3d floor, rower 4 500sq. ft.

Date ol allocarioh of n.

3107-2013 tannerure E. prs" 40 ", 128, ," floor, block D (annexme C3' De 4u or complarnrl Dale ot burtder buyer ?2.05_20t2 Due date oipossessio; Total sale consideraho; 22.A5_2016 Rs.25,00,000/- Amount pard by rtle Rs. y rtle Rs.25,64,075/- 5 8 HARERA P- GURUGRAI\I Clause 12 Assured Return and Leastng Since the Buyer has paid thet'ullbosic sole considerotion lor the tuid connerciolunit upot siqning olthisogreetuentond hos atso rcquested lor puttiog the sone on leae in cohbination with other odjoihing units/spaces ofaker owne* olter the sdd Bu i I d i h g is reody lor o cc up otion o nd u e, the Developet hos ogreed to poy Rs.

65/ per sq.ft. supet oreo ol the eid connercial unit Wr month by wa! ol osured retun to the Buyer tom the dote ol executioh of this agreement till the conpletioh oI constuction olthe soid Ruilding.The huyer hereby sives full authoriE and poweB to the Deyeloper to put the soid Conmerciot Unit in conbinotian with other odjoining canmercial units oF other o.i!ne6, on lease, lot ond oa behof ol the Buyer, as ond when the said Ruilding/soid conmerciol lJnit is ready ond lt for occupation.

The butet hos clearl! understood the geherat rbks involeed in giving ony preniseson l@se to thitd parties ond hos undertoken to beor the soid risks exclusively without any liahiliy whaBoever on the pan ol the Developet or the conlrn parry. lt it futther Compla'nr No. q?00 ot 2022 i.

The Developet will poy to the Buters Rs.

6s/. per sq.lt- supet oreo ol the said conherciol unit os committed return for upto thrce yeaB lram the date oI conpletion of construction ol the soid building or till rhe soid comnercial wt is put on lease, whichever is eo ier.

Alter the regaid ng HARIRA GLIRUGNAM '1,i,:-:;j!;]y1fiffi ;,iffi!i,!:i:,f':,# :;"'t*;;iirii;":";i!i,i;i "f*if*,,,;,,:tt* i5;5;,9;,1,ri *iiit ;:il!::::w:i::;:rl::,":;;;,,[ "ko""a * ei,. "".'"1)-" tes nan the :y!: lit *, __ ii,' [!i; [ : {ritr:f/,:t},* ';:::l;n:.;:":l;:::;:ii:#,i i{'ii"i#},::trh,::|li:.:i,:,"* ";;,1;,19;;i*iii*":,,;l"l$: '[atr#wtrwr!ii HARERA GURUGRA[/ conplJint No 5200 or202Z rental oyet ond obove the sditl nininum leose rental ol k- 65/- per sq.lL supet areo permonth. permonth.This provision b conlned only ta the lrct tern of the lease and sholl not be opPlkoble in cose oJsecord and subsequent leoses/lease terns of the said conmetuot Occupahon cenrllcare B.

Facts ofth€ complalnt 3.

The complainants have made the followtng submissions in the comptaintl L That the complainant received a marketing catt trom the ofilce of respondent in the month of February 2012 for book,ng in the project of the respondent The complainant had also been attracted towards the project namely'lndia Next City Centre' on accountofpublicitygiven by the respondent through various means like various brochures, posters, advertisements etc.

He visited the sales gallery and consulted wth the marketing staffof the respondenr lts marketing skff painted a very rosy picture of the project and made sev€ral representations with respect to the innumerable world clals facilities to be provlded by the respondent in its project.

The marketing staff olthe respondent assured that it would throughout adhere to its contractual obligatons, rules, regulations and the provisions laid down bylaw.

Il.

That the complainant, induced by the assurances and representations made by the respondent, decided to book a commerdal unit in the aforesaid project o[ the respondenr.

The complainant on demands of the respondent, made the payment of Rs.

4,00,000/- & Rs.2r,6a,07sl. on 30.03.2012 & 27.04.20].2.

The complainant signed several blank and *HARERA S,eunuennu aomplarnt No 5200 of Z0ZZ T printed papers at the instance ofthe respondent who obtained the same on the ground that the same were required for completing the booking formalities.

Thecomplainant was notgiven chance to read or understand the said documents and he signed and completed the formalities as desired by the respondent.

That based on the application made by the complainant, the respondent vide its lett€r dated 03.05.2012 allotted unit no.305B, towerA measuring 500 sq.ft. in thesaid project otthe respondent. espondent.

Since, rheentire basicsale considerat,on of the unit was paid by the complainant, a leasing arrangement was to be arrived at between the complainant and the respondent.

It was specifically assured vide th€ said letter that the unit would be completed and ready aor lease by 30.09.2014.

That a copy olthe agre€ment was sent to the complainant, which was a wholly one-sided docuneot containing totalty unilateral, arbitrary one- sid€d, and legally untenable terms favoring the respondent and was totally against the interest of the purchaser, including the complainant herein.

That moreover the fact that the respondent was in a completely dominant position and wanted to deliberately exploit the same at the cost of the innocent purchasers including the complainant is further evident from clause 1 of the ag.eement whe.ein it had given itselfunlimited powers to such an extent that the respondent made it non-obligatory on its part to even send demand notices/rem,nders regard ing the payments to be made by the complainant.

That the complainant made vocal his objections to the arbitrary and unilateral clauses ofthe agreement to the respondent.

Prior to the signing tv. vl.

ITHARERA Seunucmnr ComplaLnrNo 5200o12022 of the agreement, the complainanr had made complete payment of the basic sale consideration of Rs.

2 5,00,000/- and the same was admitted by it in clause 12 olthe agr€ement.

The respondent categoricaltyassured the complainant that he need not worry and rhat the respondent \rould complete the proiect on time, otrer the possession and woutd keep on making paymenttowards the committed returns and the.eafter thelease returns, after the unit was leased out.

Since the complainanrhad atready parted with a huge amounr, hewas leftwith no other oprion but to accept the lopsided and one,sided terms of the agreement.

The complajnant feh trapped and had no other option butto sign rhe dotted lines.

Vll.

That the respondent vide its letter dated 31.07. ted 31.07.2013 unilateraly changed the unit numberaswellas thetowerinwhich the unitwasalotted to rhe complainant.

It was intimated to rhe complainantvide the sa,d letterthat allthe rights, interest, lien, charge has been shtfted from unit no.

3058 on the th,rd floor oltower A to unir no.

128 on rhe ffrst floor oftower D.

The said unilateral change was doneby therespondent withoutany intimation and without taking any consent ftom the complainant.

When the complainant confronted the respondent about the said unilateral act on its part, it rook the shelter ofarbilrary and comptetety one-sided buitder buyer agreement to justiry its acrs.

Thecomplainant had no oprion bur to accept the same fo. unit in tow€r D instead tor unit in tower A as the respondent thr€atened the complainant abourforfeiture ofthe basic sale consideration paid by the complainant ifthe terms ofthe lener would not be agreeable to the complainant.

The respondentatthe tjme said assured that no matter what, it would at no stage stop the committed returns agreed upon as per the terms ofthe agreement.

The respondent started f,HA&ERA S- GlnLnnlv CompL, nr No s200of2022 making payment rowards the commjned returns as per the terms ofthe agreement and the compta,nant had no other oprion but to ac.ept th€ Vlll.

That the complainaDt has made the eniire payment str,crly as per rhe terms of the allotment and the payment plan and no detault in making timely payment towards rhe instatment demands was commtted bv the IX.

That as per clause 12 ofthe builder buyer agreement dared 22.05.2012, the respondent had agreed to pay tu.

65/- per sq.ft. super area of the commercialunit per month by wayofassured return to the complainant from the date of exe.ution of rhe agreement till the complerion ot construction ofthe building.

Irwas further agreed videclause 12[i) ofthe said agreement tharrhe respondentwould pay to thecomptainant Rs.6Sl- per. sq.ft. er. sq.ft. super area of the commerciat unit as committed returns for upto threeyears from the date ofcompletion ofconsrruction ofthe bualdingor till the commercial unit was pur on lease, whichever was earlier. tt was mutually decided between the pardes vide clause 12(v) ofthe agreement that after the completion of the construction, the respondentwould lease out the commerciat unit at a minimuin lease rental of Rs.

65/- per. sq_ft. super area per month.

Ifon account ofany reason, the lease rent achieved was less than rhe said amount, then the respondent would pay to the complainant a onetine compensation calculated at the rate ofRs.

120/- per sq. ft superarea for everyone rupee drop in the lease rentatbelow Rs.

65l- per. sq. ft. superarea per month.

X.

That despite having made the buitder buyer agree.|itentdated22.0S.2072 containing terms very much favorable as per the wishes of the respondent, *HARERA S eLrnLrcnnvr compLcrnr No 5200 of2022 still the respondent miserably failed to abide by its obligations thereunder.

The respondenr/promoter even failed to perform the most fundamental obligation of rhe agreemenr which was to complete the construction of rhe unit within the promised rime frame, which in the presentcasewas delayed foran exrremely long period ottime.

The faiture of the respondent and rhe fraud played by it is wrt large.

It was also decided thatafterthe comptet,on ofthe un,! an offer of possession would be made by the respondent to the complainanr and the same is evident from clause 3 of the agreemenL The due date of completing the construction as per clause 10 of the builder buyer agreement was 21.05.2016.

The complainanralong with his daughterwent to the oflice oa the respondentand met its representativ€s who assured the complainant that they would soon issue an offer of possession after complet,ng the construct,on and that they woutd keep on making payment towards the committed returns as per the terms ofthe agreement, Xl- That the complainant request nt requested the respondent telephonicall, and by vis,t,ng the omce of the respondent to update him about the date of handing over ofthepossession.

However, dre respondent, in orderto dilly- dally the matter continuously misled the complainant by giving incorrecr information and timelines within which ir would issu€ an offer of possession to the complainant.

XIl.

That vide lener dated 12.03.2018, the respondent intimated to the complainantthat the construction ofthe tower in which the complainant had unilaterally allotted a un,t was completed and rhat the same was offered for leasing.ltwas intormed to the complainanr v,de the said letter thatfrom 01.03.2018, allthepayouts against the un,t wou ld be booked as #HARERA S GURUGRAM the comprainant was shocked to see, - '_- "".-' urc tease arc6 const,uction d(riviries we" ** "r r, *",," consrruftion srarus.

No thrt rhe work ',' '.", :;;;;:,;; ":,:: proien site and ir was crear sround reariry at the con",.,";;;";";,""""."r monrhs. rhe actuar respondenr had craimed t" .h";,;;,;;, ::, .,rerent rhan whar the the prore* n,,.,.,,", ;";; ;;;;:: ;::1;:::::[i::[, reipondenl were not dbh ro even respond property ro rhe queries ot rhe comptarndrr regdrdrng execution ofa lease deeO on ac.ounr or which the ::::::**l* . payout rhe rent paymenrs as per the rerms of rhe agreemenr.

The .espondent yet again, with m assurance rhat - **, *", **,," ,';::;,, n* monves, save an jersee a,ter conpret ns tie;;;;;;;,:;ffi:",'"" w,h d prospedive yet ded n. rhe assurahces m,r" il;;r:::';:::::1iJ" ",; ,'v0roncrere steps were takpn by the responden orcomplerion otrhe unrr rn question or For execution ofa lease deed_ , :::::t: * .".,;;;,";;';il";J:.:T"J:;:::T; XIll.

That the respondent in blatanr violatir conditions lard o"r" ,, ,i" **#n of the agreed terms and pdyments rowards rhe.om.,"", ;";;:;.;,"":,H'ilT:,:1"::ll; :T';l]J:: ::::::::t derrerd'ierv m schievous'|v. ievous'|v. rraudu,en,v and :J::::T: :"#;; ;J ;:T,l,lilH jffijJ:::l rrhrch renected nothing bur deliberdte lerharry, negligence and unfair (ompla'nrNo 520Uor2022 RA RA[/ RE UG A UR *r S*e trad€ practice by the respondent, its representarives started making excuses ior non-disbu.sat of the amount and assured that the due amoxhr would be c.ed,ted in the bank account of rhe complainanr in the due course oitime.

However, the assurances of rhe respondent again turned out to be incorrectand false.

Th€ high headednessofthe respondentisan illustration olhow the respondent conducrs jts business wh,ch was only to maximize the prof,tswth no concern towards rhe buyers includingthe That the respondent has miserably failed ro djsburse any other amount lor the period oflast 3.5 years irom the date ofdisbursal oftast amount in September, 2018.

Moreovet the respo[dent has not rajsed consrruction within the agreed time frame.

Th€re has been vinually no progr€ss and theconstructionactivityarelyingsuspend€dsincelong.Thecomplainant has a strong apprehension that rhe false ctaim of comptetion ot the project made by the respondent in jts letter dated 12.03.2018 was nothing but a dhhonestattempr ofthe respondentto stop making paymenttowards the commjtted returns as per clause 12 of the buyer agreement. tt is reasserted rhar the complainant has made the paymenr towards the futl sale consideration as demanded by the respondent and the respondent has done nothing but has only utilized the hard earned amount of rhe complainant for its own use and purposes.

The fact that no intimarion regarding the application for the grant of the occupation certificate was given by the respondent to the complainant speaks about the volume oa illegaUties and deficiencies on rhe part otthe .espondenr/promorer.

There js inordinate delay in devetoping the project wetl beyond what was promised and assured to the complainant. xtv #HARERA S eunucnnu ComplainrNo. mplainrNo.520Oof 2022 XV- Thar the respondent has committed various acts of omission and comm,ssion by making incorrect and false statements in the advertisements issued by it at the time of booking.

There h an inordinate delay of6 years catculated upto lune,2022 and tiI dare the possess,on of the allotted unit has rot been offered by the respondent to the complainant.

The respondent has faited to make anypaymenttowards the commitred returns to the comptainant from October 20tB onwards despite the complainant making full and linal payment towards rhe totel sale cons,deration of the amounL The respondent/promoter had represented and warranted at the time olbooking thar it woutd offe. the possession ofthe dream unit ofthe complainantto him in a timely manne. along with commtted returns.

However, the failure of the respondent company has resutted in serious consequences being borne by the XVL That the respondenrhas mjsLrsed and converted to its own us€ the huge hard-earned amounts received from the complainanr and other buyers in the proied in a roraly i[e8al and unprofessional manner and the respondent was least bothered about the timety finishing ofthe project and offering of possession of the apanment ,n question to rhe coinplainantas per the terms ofrhe buyer,s aSreement.

The complainant has been duped of his hard-earned money paid to the respondent regarding the unitin question.The complainant requested the respondent to either continue making paymenrs towards thecommi$ed returns along with inrerest til the time ofotrerthe possession ofthe allotted unjt to him or to refund back rhe entjre amounr pajd by him along with inrerest on accountofinordinate delay, but the respondent has been dilly_dallying the ffHARERA S cLtnttcnnv compla,niNo 5200ot 2022 matter.

The complainant has been runniog from pilar to post and has been mentally and financiatty harassed by the conduct ofthe respondent.

XVII. ent.

XVII.

Thatitis unambiguously lucid rhatno force maieure was involved and that the proiect has been at standstitl since several years.

Despire makjng full payment the respondenthas failed toadhere to the terms and condirions ofthe buyer agreement and the promises, assurances and represenrarions which it made to rhe complainanr at the time ofthe booking.

XVIII.

Thatdueto the fauhofthe responden! the complainanthas been depr,ved of a commercial unit for a long time and has suffered very badly.

The respondent has continuously been misleading the complainant by giving incorrect inlormation ard assurances that it would handove. the possession to the complainant very soon along with committed returns for the durarion from October 2018 till the date of handing over of the possession.

Th€ complalnant visited th€ project site in March, 2022 and was shocked to see thar no coNtrudion activity is currently going on there.

The complainant intimated to the respondent that he doesnl want any association with the respondent on accounr of blatant viotations committed by the respordent and requested the representatives ofthe respondent to refund rhe enrire amount paid by htm atong wirh interest to the complainant.

The respondent has been brushing aside all the requisite norms and sripularions and has accumulared huge amount of hard-earned money of various buyers in the projed inctud,ng rhe complainantandareunconcernedabou hereturnof theamount.

XIX.

That the cause of action for the present complaint is recurring one on account of the failure of the respondent ro perform its obtigations.

The cause of action arose when the respondent failed to complete the f HARERA &ounuenm,r Cooplarnt No 52OO o12022 C, 1 construcrion within the time limit prescribed, offer possession anrl committed rerurns from October 2018 onwards and finallyabout a week ago, when the respondent refused to refund the amount paid by rhe complainant along w,th compensation/damages and inrerest. inrerest.

Reliefsought by the complalnants: The complainants have soughr folowjng reliefts).

L Directthe respondent to refund the paid,up amounr.

0n the date olhearing, the authority explained to the respondent/promoter about the contraventioos as allege.l to have been commitred in relat,on to section 11[4) [a] ofthe act to plead guilry or nor to ptead guilty.

D, Reply by the respondent The respondenthas cont€sred thecomptainton the following grou nds. a.

That the present complaint being filed for refund of considerarion amount paid for the commercial unit, cannot be altowed by the Authority in view ofrh€ fact that the respondent had duly paid assured return/monthly committed rerurn as per lhe BBA, at the rate ofRs.65/ per sq.ft. from the year 2012 til October 2018.

Thus, the respondent having paid nearly the entire consideration amount the present complaint outto be dismissed. b.

That the complainant has got no locus standi or cause ofaction to file the present comptaint.lt is based on an erroneous ,nrerpretarion ofthe provisions olthe Act as wellas an incorrect undersranding ofthe terms and condirions ofthe buyer,s agreement dated 22_05.2012. as shallbe evident from the submissions made jn the following paras ot the present reply. *di d.

HARERA GURUGRA]\I complarnr No 5200of ?022 That at the very outset it is submitted that the complaint is not maintainable or tenable in the eyes of law.

The complainant has m,sdirected themselves in filing the abov€ captioned complaint before the authoriry as the reliefs being ctaimed by hjm .annor be said to tall within therealm ofjurisdicrjon ofthe authoriry_ It is humblysubmitted that upon the enactment ot the Banning of Unregulated Deposft Schemes Acr 2019, th€'assured r€turn,and orany..commi$ed returnl, on th e deposit schem€s havebeenbanned.

The respondents having nor taken registration lrom SEBI Board cannor run, operate, conrinue an assured return s€heme. rn s€heme.

The implicatjons of enactmenr of BLDS Act read with the Companies Ac!

2013 and Companies lAccepranc€ oi Deposits) Rules, 2014, resulted in making the assured return/committed return and similar sch emes as unregulated schemes as b€,ng within the definition of"deposit,,.

As per section 3 otrhe BUDS Act, a unregutated deposit scheme has been str,ctly banned and deposit takers such as builders, cannot, directly or indirectly promote, operate, issue any adverthement soliciting participation orenrolmentin or acc€pt deposit.

Thus, section 3 ofthe BUDS Act, makes the assured return schemes. of the bu,tde.s and promoters, illegal and punishable underlaw.

That the commercjal unir olthe complainant is not meant ior physical possession as the said unit is onty meantfor leasing thesaid commerciat space for earning rental income.

Furrhermore, as per the clause 12 of theagreement, the said commerciatspace shallbe deemed to be legally possessed by the complainant and he could not take the physical HARERA GURUGRAI/ Compra'niNo 520oor2022 I poss€ss,on.

Hence, th€ commercial space booked bythe complainantis not meant lor physical possession.

That the complainants have come before the Aurhority wjrh unclean hands.

The complaint has been flled by rhe comptainants iust to harass the respondent and to gain unjust enrichment.

The actual reason for filing ofthe complaint stems trom the changed financial vatuation ofrhe real estate sector, in rhe pasr few years and the a ottee malicious intention to earn some easy buck The covid pandemic has given peopte to thinkbeyond thebasic legal wayand to attempfto gain financ,a yat the cost of others.

The complainants have instituted the present false and vexatious complaint against the respondent who has already lulfilled its obligation as defined under the buyer,s agreement dated 22.05.2072.

That the complainants entered Into an agreement i_e., buyer,s agreement dated 22.05. ted 22.05.2012 wirh respondentowing to the name, good will and reputation of the respondent.

The respondent duly paid th€ assured return to the complainant tiu October 2018.

Due to externat circumstance which were not in control of the responddnt, construction gotdeterred. h.

The present .omplaint has been ffted on the bash of incorrecr understanding ofthe ob,ed and reasons ofenactmenr ofthe RERA, Act 2016.

The legislature in its great wisdom, undersranding the catatytic roleplayed bythe real estate sector in fulfillingthe needs and demands for housing and inflrasrructur€ in the country, and the absence of a regulatory body to provide prolessionalism and srandardization to rhe said sector and to address aI the concerns of borh buyers and HARERA GURUGRAN/ Complarnt No 5200 of2022 promorers in the real estat€ secror, drafted and notified the RERA Act, 2016 aiming to gain a healthy and orderly growth ofthe industry.

The Acthas been enacted to balance the interests ofconsumer and promoter by imposing certain responsibiliti€s on both.

Thus, while sections 1 1 to section 18 of the RERA Acl 20 16 describes and prescrjbes the function and duties of the p.omoter/developer, section 19 prov,des th€ rights and duties of alloftee.

Hence, the RERAAct, Z016was never,ntended to be biased legislation preferring the allottee, rather the intent was to ensure that both theallotte€ and the developer be keptatparand either of the party should not be made to suffer due to act or omission of part That it is brought to the knowledge of the Authority that the complainants areguilty ofplacing untrue tacts and,s attempting to hide thetrue colourofrhe lntention ofthe complainants.

That before buyinC the property lrom the erstwhile alloneer lhe complainants were aware of the status of the project and the fact that the comm€rcial unit was only intended for lease rnd neverfor physicalpossesnon. possesnon.

That the complainant ls attempting to seek an advantage of the slowdown in the reat estate sector, and lt Is apparent lrom the facts of the present case that the main purpose ofthe present complaint is to harass the respondents by engaging and igniting frivolous issues with ulterior motives to pressurize the respondents.

Thus, the present complaint is witho ut any bash and no cause ol action hasarisen tilldate in aavourofhim and against th€ respondents and hence, the complaint desewes ro hedismissed. gHARERA S* GInuGRAM aom.Lrrni Nn 5700.17077 7.

Copies ofallthe relevant documents have been filed and placed on record.

Their authenticity is not in dispute.

Hence, the complaintcan be decided on the basis of these undisputed documents and submission made by the E. lurisdiction of the authority The authority has complete territorial adjudicate the present complaint for the E.l Territorial iurisdiction and subject matter jurisdiction to reasons given below 9.

As per notification no.1/92/2017-ITCP dated 14.12.2017 issued by Town and Country Planning Departmenl Haryana, the iurisdiction of Haryana Real Estate Regulatory Authority, Curugram shall be entire curugram d istrict for all purposes.

In the present case, the project in question ,s situated within th€ planning area ol Gurugram district.

Thereflore, this authority has complete territorial jurisdiction to deal with the present complaint.

E.II Subiect-matter lurisdiction 10.

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

Section l1(4xa) is reproduced as hereunder: {o) be rcsponsible fot oll oblisotions, responnbilities ond lunctions undet the prcvisions olthis Act or the tules and regulations nade theteunder ot to the dttottees os pet the ogteenent lot sote, ot to the osrcciotion ofollottees, os the cos not be, till the convelon e oJ oll the apartnents, plots or buildings, os the coe no! be, to the allotte*, or the conhon deas to th deas to the ossociation olollotted or the cohpetent outhoti,t, as the cay noy be) Se.tion 3l"Functions oI the Atthonq: IARERA comp crnr No 5200 oil0z2 "86.

Fron the vhme ol the Act olwhich o detqiled releren.e hos been ode ond tohng notp oI powd ol adjud,tution delineoted with the regulotor! outhoriq, antl odjudicoting allceL whot lnatly cuth out is thot olthaugh the Act indicotes rhe dktinct expresiohs hke refund, 'interest , penoltt ond 'con pe nntion , o conjoint reo d ing of S{tia ns 13ohd19cleo t nonileste thotwhen it@nes to rcfund olthe onount, ond interest on the tefuht) onouna or dnt ns polneht ofintetestfor deloled deliveq ol poss{sion, or peholtt ond interest the.eon, it h the regulotory outhority which hos the po|9q to exanine ond detenhe the outcone oI a cohploht.

At the tune tifte, when it cones ro o quenrcn ol seekirg the rctkl of adjudsino coftpensoton ond interest thereon under S.dbns 12, 14 18 ond 19, the odjudkoting olicet exdusieel! has the power to dete.nine, keepihg in wew thecollectNe rcoding of Sectian 71 red wth Section 72 oJ the Act. il the ddiudnoian under Secttans 12, 14 18 ond 19 other thon canpasotion os enviQged, tfextended ta the adiudicotingoficeros ptayed hotin our viev doy tntend to expand the onbt antl sope aJ the powe6 ond functions of the odjudiconns ollcer undet section 71and that would be ogdihst the handoE of ke Act 2a15." GI]RUGRAIV 344 oI the Act protd.s ta ensure conptionce of the obhgotions @st upon the pronotes, the ollotees dnd the r t estote ogqLs un.let this Acr ond the rules dnd rcgutotiohs node thercundet.

11.

So, in view ol the provisions of the Act quored above, the authority has complete iurisdiction to decide the complaint regarding non-compliance of obligations by the promoter leaving aside compensation which is to be dec,ded by the adjudicating olficer ifpursued by the comptainant at a later stage.

12.

Further, the authoriry has no hitch in proceeding with rhe complaint and ro grant a . grant a .eli€f oi refu nd in the present matter in viewotrhe judgementpassed by the Hon'ble Apex Court in Newtech promoters and Developers prtvate Llmlted vs State ol U.P, and Ors." ZOZt-2O22(tlRCRtC), 3 57 and tollowed ir case of M/s Sana Realtors privote Limited & other ys Union of tndia & others SLP (Clvil) No.

13005 ol2020 decided on 12.05.2022 whercin ithas been laid down as under: tr.

L3 l4 I}HARERA s, cLrnrcnnur Complarnt No. s200 or 2022 Hence, iD view of the authoritative pronouncement ofthe Hon'ble Supreme Court ,n the case mentioned above, the authority has the jurisdiction to entertain a complaint seeking r€fund of the amount and inrerest on the Findings on the relief sought by th€ complainants.

F.

I Direct the respondent to refund ofthe entir€ amount of paid by the complainants to the respondent for the said unir The complainants have subrnitted that rhey booked a unit in rhe respondent's project namely "Vatika Inxt Ciry Center and allotted a unit bearing no.

3058,3d floor, tower A admeasuring 500 sq.ft. for a total sate consideration of Rs.

25,00,000/- agalnst which rhey paid an amount ot Rs.

25,64,075/-.

The.eafter, th€ unit numberwas changed to 128,1n floor, block D vide letter dated 31.07.2013.

As per terms aod conditions of the buyer's agreement the complainants were entitled loi assured return.lris pert,nent to mention here that as per the rerms and mnditions ofbuyer's agreement the respondent pajd the assured retum amount for some period oftime and thereafter, they stopped the payment ofassured return by tak,ng a plea of BUDS Act.b Keeping in view the fact that the allottee/complainant wishes to withdraw irom the proiect and demanding return of the amount received by the promoter in respect of the unit with interest on failure olthe promoter ro complete or inability to g,ve possession olthe unit in accordance with the te.ms ofagreement forsal€ orduly completed bythe date specified therein. d therein.

The matter is covered under sect,on 18[1) ofthe Act of 2016.

The due date of possession as per agreement for sale as menrioned in the table above is 22.05.2016 and there is delay of6 years 1 months 29 days on t6 HARERA aompc nrNo 5200 or2022 the date of filing oa the comptaint.

The occupation certjficate/completion certificate ofrhe projectwhere the unit is situared has still notbeen obtained by the respondent promoter.

The authority is of the viev, that the aloftee cannot be expected to wait endlessly tor raking possessjon of the altorted unit and tor which he has paid a considerable amount towards the sale consideration and as observed by Hon,ble Supreme Court ot Indja in ,reo Gmce Reoltech PvL Ltd. ys.

Abhtshek llhanna & Ors., ctvit oppeol no.

STaS ol 2019, decided on | 1.01.2021,. .. .

The occu potion ertficote is not avoiloble even os on dote, whrh cleorl! anounts ta defciency of seruice, The olott@s .onnot be natle to woit tndefnlteu fo. posesion ol the opdhnents olored h then. nor con the, be bound to toke the opottne.ts in phae I oj the prcject 17.

Furtherin the judgement of the Hon,blesupreme Court oftndia in thecases of Nevtbch Ptlomote6 oni!

Developes private Ltmited Vs Stote oJ U,p, and Ofs. (supm) rciteEted i^ case of M/s Sano Realtors prtvob Limtted & other ys Unlon oJ lndla & others SLp (Civtl) Na 13005 ol 2020 dectded on 12.05.2022, it was obser.'ted: '2s. rhe unquotiled risht of the olloue b yek rcfuhd refned under sedion 18(1)(a) ond sectian 19[4) of the Act is not dependent on ony continsenciet ot stipulotions thereof. h appeoB thot the legtsloutre hos contuousty proeided thn nsht ol refund on denond os an uncMditio.ot absolute ight to the atjouee, il the pronotet faib to gtve pN$ion oJtne apattnadC plor il btitrling within the tine stipulated under rhe tems oJ the ogtetuent regardte$ ol unloreseen evenLs or stor o.dqs ol the Coun/Tribunol, which is in eiher edlt not o$nbutuble to the ottoueethone buye. th. buye. th. pronotet n wdetonoblqono; LoreJtndthpanounL on denond with lnterest at the rcte prcrc.ibed bt the Stote Covernnent including conp.ntution in the nonner pravided under the Act wth rhe prcviro thot ifthe ollottee does not wish to withdraw fion the proi.ca he sholl be entitted lar interest for the penad ol delot till honding ovet poss*ioh ot the rote ptennberJ 18.

The promoter is responsible lor all obtigations, responsibilities, and functions under rhe provisions of the Act ot 2016, or the rules and regulations made thereunder or to the allottee as per agreement for sale under section 11(4)(al.

The promoter has failed ro complete or unable to iTHARERA S, eirnLrcnrv conplarnr No s200of 2022 give possession ofthe unit in accordance with the terms of agreement for sal€ or duly completed by the date specified therejn.

Accordjngty, the promoteris 1iable to the allottee, as they wish to withdrawfrom the project, w,thout prejudice to any other remedy availabte, to return the amounr rece,ved by him in respect olthe unit wirh ,nterest at such rate as may be p.escribed.

19.

This is without prejudice to any other remedy availabte ro the allonee including compensation for which allottee may nle an appl,carion for adjudging compensation with rh€ adjudicaring ofticer under sections 71 & 72 read wirh se(lion I ltll of rhe Act o[ 2016 20.

Admirsibility of r€fund along $,lth pr€scribed rate o[ tnter€sr The complainants are seeking refund of the amount paid along with interesr.

However, section 18 ofthe Act read with rule 15 ofthe rules prov,de that in case the allottee intends to withdraw from the proiect, the respondent shall reiund olthe amount paid by the allottee,n respect of the subject un,t with interest at prescr,bed rate as provided under rule 15 of the rules.

Rule 15 has been reproduced as under: Rule 15, PGnibed rute oJ lnl!.ar lP@iso to section 72, *ction fiMd subtdtion (1) ond $frs. ond $frs.ctioa(7)olsecli l9l (1) For the purpote of rtoviso to section 12; section 18) ond sub- ections @ ond (7) ols@tior 19, the lnterest ot the rute prescribed" shall be the State Bdnk ol tndia highest narginal cost of tending tuE +2%: Ptovtded thot in cote the State Bonk of lndio norginal cost ol lendihg rote IMCLR) is not in ue, it sho be replaced by such benchnark lending roreswhich the Stote Bonk of lndio nar lx lion tine to tine lot knding to the senerclpublic 21.

The legislature in its wisdom in the subordinate legislation under the provision of rule 15 of the rules, has det€rmined the prescribed rate of interest.

The rate ofinterest so determined by the legislature, is reasonabl€ *HARER; S-eunucnnttl and ifthe said rule is followed to award the interes! practice in allthe cases.

Compla'ntNo.

5200 or2022 Brnkoflndra MCLR) as on dare i.e., 14,07.2023 of interestwill be marginal cost oi it 22.

Consequently, as per websiteolthe Srate the marginal cost oi lending rate Iin short, is 8.70%.

Accordingly, the prescribed rare lendins rate +2% i.e., 10.70%.

23.

The authoriry hereby directs the promoter to .etu rn the amount rece,ved by him i.e., Rs.

25,64,075/, with inr€rest at rhe rate of 10.700,6 lthe State Bank oflndia h,ghest marginatcost of tending.ate (MCLRI applicable as on dare +20lo) as prescribed under rule 15 of the Haryana Real Estate (Regularion and D€velopment) Ruler 2017 from the date ofeach payment tillthe actual date ofrealization of the amount within the timeltnes provided in rule 16 ot the Haryana Rules 2017 ibid.

The amount paid on account ofassured return may adjusted from rhe refundable amount.

G.

Direciions ofthe authorlty 24.

Hence, the authorily hereby passes this order and ,ssues the following directions under section 37 of the Act to ensure compliance ofobligations cast upon the promoter as per the functon entrusted to the aurhority under section 34(0: The respondent/promoter is directed to refund rheentire amountofRs. mountofRs.

25,64,0?5/- paid by the complainanr along w,th prescribed rare of interest @ 10.70% p.a. as prescribed under rule 15 ofrhe Haryana Real Estate (Regulation & Development) Rules, 2017 from the date oleach payment till the date of relund of the deposited amount.

The amount paid on account o[ assured rerurn may adjusted from rhe refundable PaCe23 ol24 IHARERA $-OUngennr,,1 f ",e,*,v sloa,;rl Complaint No.

5110roI2022 ii.

The respondent is turtherdireded not to creare any third-party rights against the subject unit before full realization ofpaid,up amount along with interest thereon to the complainants, and even il any iransfer is initiatedwith respect to subjectunit, the receivable shall be ffrst utiliz€d for clearing dues of allottees-complainant. iii.

A period of 90 days is given to the respondent directions given in this order and fajling which Complaint stands disposed ol File be cons,gned to regi Haryana HARERA GURUGRAM 25.

26.

14.07.2023