MR VIVEK ANAND vs ADVANCE INDIA PROJECTS LTD.

conplainrNo 4979o12021 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGR,{M 4979 ol2027 73.r2.20?7 23.02.2022 24.09.2023 CORAM: Shr,Vijay Kumar Goyal APPBAnANCE WHENARGUED: Ms.

Sonali Karwara (Advocarel Sh. llarshjt Batra (Advocate) l.

ITHARERJ, #"ounuen,qv ComptatntDo.

Date of filng .omptatnt: Fl.st date of heartng: Dateofdeciston I 1.

Mr.

VivekAnand 2.

Mrs.

ShwetaA.and Both RR/O: 165, Pocket -H-24, Sector 3, Rohinj, Delhi- 110085 Versus 1. lvlls Advance tndia projects Limttcd Regd. offlce: 232-8, 4$ ttoot, Okhla Industrial tistate, Phase-lll, New Delhi.1t0020 2. t,andmark Apartments private Limited Regd.

Omce: A-11, C.R. park, New Dethi, 110010 ORDER The present complaiDt has been filed by the complainant/a ottees under Section 3l ol th€ Real Estate (Regulation and Developmentl Act, 2016 fin short, the Act) read with rule 29 ofthe Haryana Real Esrate (Regutarron and Devekpmcn, Rules, 2017 (jn short, rhe Rutesl for violarion of section I11.1)(aJ ol the Act v/he.ein il rs inter alia presc.ibed thar the promorer shdll be responsjblc tor all obligarions responsibilities and i'uocnons under the provis,on ofthe Act or rhe rules and regutarions made there unde. or to thc rllottees as per the rgreement for sale pxecured inrer se.

1 2 &HARERA &eunuennl,r Unlt and proiect relat€d details 'Ihe particulars ofthe project, the details ofsale considerahon, the amount paid by the complainants, date of proposed handing over the possession and delay period, ifany, have been detailed in the following tabular torm: ComplaintNo.4979 of 2021 AIPL Joy Srreer". sector56, Curgaon Appli.ation lette. dated 157 oi 2017 dared 28.08.2017 Valid up to 31 12 21t20 26.06.2014 lAs per page no.41 olcomplaintl 1007.2018 lAs per pase no.4l ofcomplaintl UnrrarEa admcasuring 686.74 sq. lL [Super area] lAs per pase no.41 orcomplar.tl 27 08.2018 lAs Der pase no.4l of.omplaintl 1218 on 12,h fl oor Gervice apartmentl lAsperpaBe no 109 oicontplaintl by Rs.37,89,e81/ (61. ,e81/ (61.32061 Totalsaleconsideration Rs.73,83,828/' (excluding IFMS) lAs per .greemeot tor sale on page no. lAs per statement of account datcd 06.10.2020 on paae no.104 ofcomplaintl Clause 0) or appli@tion rorm The conpon! shall tubJect to lorce maleute conditions prap$et ta han lover Posse*ion oJ the lnit on or beJ@ oeenber 2022 notilied b! the @npon! to the outhority ot the tine of 11.

Possession clause t0 A *HARERA -&* crnLrc,nlut ComblaintNo.4979oI2021 rcgistrdtion of the project undet the Reol Estate (Resulotion & Devetopnent) AcL 2016 and the Horyono Reot Estate (Regulotion & Developnent) Rules,2017 ond rcsulotions nade thereurdet lor conpletian af the prciect ot os not be funh{ revied/opprcve.l bt the otthorhi4.

The conptetion of the ptuje.t shall neon srcnt al occuodtion cenilicate fot the project Possession Clauses as per.Creement to sle 5, TIME IS ESSENCE: The Prcnoter altreer untl unde6tonds that nn.U detieery ol pascsion al the untt ta ollotLee and the .on oh areos ta thc atsoctottan ol ollatkes or govetnnental outho ty , o\ the co\e rnay be ot praeided rndet tuh 2(1)0 olRules,2017 t\ Lhe 6sehce olthe osreenent The A ouee hereb! agrees thot whcrere. the .ektence n na.le Ior possession oJ the Unit in this Agreenent or on! other docunent with relerence to the Unia it shall alwars tuean constructive possssion ol the Unit on.t not physical hon.lov.r oJ the Unit to the Allottee fhe Allaxee hereb! conlns thot the P.a otet hos in no wa! node ohy tepresentunon .t worronry b the Allouee thot the Prcntoter sholl oller/ hondovet phltkot po$eston olthe Unn u) the Allonee *cept where spe.iicalty agrecd b.r lhe Ptomote. in writng with the allottee 7, POSSESSION OF THE UNIT 7.1.

Sch€dule for poss.ssion of the U.it fhc Alto(ee hereb! og.ees thot bhe,evet rht this Agreene,t or ony other dotument with relerence to the Unit, it sholl always neon constructi@ possession ol the Unit on.I not physi@l hon.tover oJ the Ulit to the A ottee. reteren1 R mo. ren1 R mo.te lor poeess,on ol the unit in IL GURUGRAIV Due date ofpossession (omplarnt No 4q7q ui2021 lAs per clause j ofapplication rorDl Assu.ed Retu.n Clause Clause 2l ofAgreement stbje.t to Allottee naking the due poyments os per the agrced Poyment Plan as per Schetlub F', the Promoter has ogreed to poy Rs.28,32a.00 (Rupees Twent!-Eiqht Thousohd three Hundred twentt eight Ooly) pet month by way ol assured retum to the albttee ftom succeedlng day fron the dote ol receipt & reolizotion ol Rs.36,91,914 (in.lu.ling taxes) Fom the A|ottee, iedltecl to the bank account oI the Promoter, till dote ot nouce ol oJfe. ol possession ol the unit or .Iote of conpletion of the project .ts .lisclose.l or the tlne of reaistdtion ol the prolect vthtchever, is eo.li er...........

Rs.4,72,01s /. (F.om sept 2018 till tillSept 2020 at page 24.09.2020 lAs perpase no 128 olrcplyl 05.10.2020 lAs per page no.13l ofreplyl 23.aO.2020, 73.01.2021, 18.03.2021, o 6.0 5.2 02 t, 2 1.0 5.202 1 lAs per pase no.133 l3sofreplyl t6.07.202t lAs per page no.139 of replyl Mar 2020 & lune 2020 Occupation ce.tiflcate Reminderl.ttcr datEd 02.0a.202r lAs per pase no.140 olreplyl l'erm,n.!on letrerdated *HARER L4 l B, *HARER" !S- crnrcnnr,r ComplaintNo.49T9of 2021 Facts ofth€ complaint: The complainants have made the following submissions in the complaint:- l. l iT That the respondent no.

1 is a promoter/developer otthe projecr and has registe.ed the project under the provisions ofthe Act,2016 under the registered with this authoriry vide regisrration No.

157 of 2017 dated 20.08.2017.

That the project was projected by the respondent no.1 that they have rcc.ived a license from rhe D irecto r General, Town & Country Planning. llaryana to develop the project under license no.

7 o4 2008 dated 21.01.2008 and license no.

152 ol 2008 dated 30.07 2008.

That it was also represented by rhe complainant that [4/s.

Landmark Apartments Pvt.

Ltd. i.e respondent no.

2 is the owner of rhe tand wherein the p. ein the p.ojectwas being constructed and irwas also.ep.esented that the respondent no. t had entered into a d€velopmenr agreement d.rted 31.12.2015 wrth respondent no.

2 [[4/s.

Ltd.) to develop lhe said proiect.

That the complainant is the allottee of unit bearing no.

1218, 12,h floor ,dmeasuring superarea 686.74 sq. fr. alongwith one carparking in the project "AIPL Joy Street" situared ar Secror 66, Curueram, and That the respondent ro.

1 came up with lucrative advertisements and promotions for the sajd project. lt is pertinenr to mention herein rhat the only reason which prevailed upon th€ complainant to invest in the 1f tA HARERA GURUGRAIV ComDlaintNo.4979o12021 V] Vll.

That the respondent has d,vided the units in the proiect in rwo cat€gories.

The units which were alleged to be seruicedthrough Bridge project was the promises and immense. lmportance laid down by the respondent no.

1 with regard to quality ofthe unit, timely possession of the un,t and assured returns from the unit $,hich subsequently turned out to be false promises which caused immense hardship, both mentaland physical, to the complainants.

That since the unit being a Studio apartmenl it was represented and promised by the respondent no.

I that they have entered into a co- operation agreement dated 25.05.2016 agreemenr with M/s.

B.idge Street Apartments, a global leader ln corporate short'term leasing.

Thus, on the strength of the alleged Co-operation agreement it was assured by the respondent that assured reDtal post possession was promised to the complainants, That it was also promised and assured to the complainants that apart trom the assured rental post possession the complainants would also get assured return of Rs.28,328/- every mooth till the tlme the respondent starts to pay assured rrntal post possession, However this promise ot the respondent no.

I also turned out to be false and they have not paid the assured return of Rs.28,328/- per month since November 2019. mber 2019.

The complainants had sent many E-mails regarding the same and did not receive any r€ply/reason for th€ omission of theirdury. rd *HARER. &eunuenal,r VIII Street was priced at a premium from the units which were nor to be serviced by the tsridge Street.

The units which were to be serviced by Bridge-Street was costly by a sum of approximately Rs.20,00,000/- from the units which were notto he serviced by the Bridge Street.

That it is relsvant to point out that the total a.ea ofthe unir was 686.74 sq. ft. and the same was allotted ro rhe complainants@ Rs.9000/- per s{1. ft.

1n addition to the same the complaina.ts were also liable to pay Rs.600/- per sq. it. towards development charges and Rs.100/- per sq ft. towards IFMS.

Thus, the total price ol the unit based on the ca.pet area was Rs.74,52,502/ and the complainants has paid an total amount of Rs.37,89,953/- to the respondent no.

1.

Furthermore, the payment plan which was agreed betlyeen the parties was 50:50.

Thus, the 500/0 oi the sale consid€ration was to be made at the time of booking and the balance 50% was to be paid at the time ofpossession.

That pursuant to the said amount being paid by the complainants to the respondent no.

1, th€ respondent no.1 issued allotment letter dated 30.07.2018 to the complainants.

The allotment letter was issued aiter much persuasion by the complainants.

It,s relevant to point out that the respondent no. t has shared with the complainants a copy oa the sale agreement containing various terms & conditions.

Th. complainants immediately .aised objections to varjous clauses in the agreement lt was assured and promised by the .espondents that the said clauses are standard clauses which is required by law and further Complarnt No 4q79 oI2021 lx. t4 *IARERA *&- crnlc,n,qv x ComnlaLnr No 4q79 ol707l promised that the r€spondent would not insist on the same.

Believing theassurance and promises made bythe respondent the complainants signed the agreement. agreement.

That the main obiechon by the complainants to the aSreement was as regards the date of possession.

It is relevant to point out rhat th€ respondent no.

I at the time of booking of rhe unir had promised rhe delivery ofpossession by end of3d Quarter of2018.

To rhe uner shock and surprise ofthe complainants in the agreement rhe respondent had mischievously omitted any specific date olpossession and has instead made reference to the same as the date intimated to the aurhonry at the time ol registration.

It goes withour saying rhat the alleged agreement which was never executed was cunninSly worded and device to dupe the allotee(sl, complainant being one of them.

That the Complainants wer€ shocked to receive and alleged ofer of Constructive possession on 05.10.2020 wherein it was mentioned in the offer ofpossession that the respondent has receiv€d an occupatlon certificate from theconcerned authority along with tax invoices.

That the complainants all this while has been communicating with the respondent no.l and has been raisingall the obiections, as regards the shortcomings of the project.

However, the respondent no.

1 never addressed the issues raised by them seriously and had always been in a denial mode without ever lookiog into the issues. ln fact the complainants had all rhis while raised the issue of non- receipt of xt xlt lA rn as promised and has also made specific complaints sence of collaboration agreement with Bridge street as ants have paid extra for the unit. lrHARERA $-eunuenRu regarding ab aom.lrLntNo 4979of 2021 XIII That the relative oi the complainants had visited the unit in October 2020 and the same was not ready.

In fact, the complainants personally visited the unit in October 2021 and even after one year from the date of issuance of the alleged oifer ofconstru.tive possessjon the unit was not ready.'lhe said uDit rs a still incomplete as only a superstructure is standing without any furnishing and finishing. finishing.

It is submitted that the Unit rs a bare-shell and the same is not fit lor possession.

The complainants that the alleged oC obtained by the respondent has been obtained by play,ng fraud upon the authority and by illegal means as the unit is still under construction and the same is not fit fo. possession. lt is relevant to point out that in terms of the agreement and unde.standing between the panies the respondent was to deliver possession of the ready unit to the complainants However, the respondent has failed in offering the possession of ready unit to the complajnants and the unit which allegedly is being offered lor possession is not even ready.

That thereafter respondent no 1 had senr a reminder letter, l0Y/RTM/B/0576 dated 23.10.2020 with rererence to the offer of possession for the amount Rs.41 91,853/-.

That the respondent after being confronted with all the shortcomings, iust to pressurized the complainant and to extort money from the xtv la {rHARERI &,eunuennnl complainanl issued pre-termination Letter dated 16.01.2021 wherein the respondent raised an illegal demand of Rs.41,09,198/- which was much more than the balance consideration which the complainants were liable to pay to the respondent no.

I had the respondent no.1 performed all its obligations and promises.

Thereby, threateniry the complainants of forfeiture of the amount deposit€d by them. ln €ase the compla,nants does not fall in line and does not pay to the respondent the demanded amount lt is relevant to point out that the respondents being in commandlngposition having received more than Rs.37,89,953/- from the complainants.

Further, the respondent no.

1 has been threatening the complainanis to ensure that the complainants pays the illegal demands raised by iL It is relevant to point out that the ahount demanded by th€ respondent no.

1 in reninder dated 23.10.2020 was more t}an tlrc amouDt demanded by the respondent in the pre-termination letter. xV. etter. xV.

That rhe complainants had sent a detalled reply dated 22.02.2021to the pre termination notice issued by the respondent.

It is relevant to point out that neither any reply was received by the complainants nor the defects pointed out by the complainants in th€ reply were ever rectified.

It is submitted that the possession of the Unit/flat was promised by the end of 3d Quarter 2018, since the promised date it has been more than 2 years and the unit is not even complete.

Funher in the reply the complainants have also raised various other issues Compa niNo 4979 of2021 ta Cudplrnt No 4q7q of202l which were never resolved by the respondent.

The pre' termination notice was nothing bLrt extortive in nature being violation of the law.

Furthermore, it would be relevant to point out here that 'tlme along with the promised amenities and assured returns" were sine qua non ior the compla,nants to make payment and tak€ possession.

That the complainants had send many e-mail regarding the unpaid Assu.ed returns promised by the respondents, but have not received the payment towards th€ assured reurrr trom the respondent since Nov 2019 towards assured retums.

That through this complaint the complainrnt herein wish€s that the principleamountdeposited bythecomplainantwiththerespondentin lieu of the allotment to be returned back to th€ complaimnt herein along with an interest of 24% p.a. and/or the State Bank Of lndia highest marginal cost of lending rate plus two percent of the said principal amount in )ieu of nor-delivery ofpossession of flat unit and further, an amount of Rs.10,m,000/- as clmp€rsation towards mental and physical harassment caused by the respondents herein. c.

4 {THARERA S-eunuennv XVI] Rellefsought by the complainants: The complainants have sought following relief(s): i.

Direct the respondent to restore the allotment of flat no.

1218 and recall iermination letter d ated 02-04.2027. ii.

Direct the respondent to handover the physical possession ofthe flat no. e flat no.1218 in the said project. a I}HARER- &- crrnrcnnvr anmnl.int N..

4979of 2021 iii.

Direct the respondent to pay the additional amount of Rs.20,00,000/_ paid by the compla'nant towards finishing services ofbridge'street. iv.

Direct the respondents severally and jointly to pay the amount of Rs.6,48,970l- as rental return to the complainantas per clause 5(a) of addendum of unit buyer's agreement [Arnexure_4). v.

Direct the respondents to severally and lointly pay a sum of Rs.3,39,936/- for the unpaid assured return. vi.

Direct the respondents to grant such a penalty, as may deem fit and proper by this authority, towards the delay in ofierinS ofpossession of the flat which was promisd In thr Year 2018 untll the day such possession was actually otrered at the rate of 18 % per annum along with pendent lite and future compensation at the same rate till ihe date of actual realiz:tion ofthe amount vii.

Direct the respondent to pay interest on the Sde Bank of India highest marginal cost of lending rate plus two p€rcent of the principle amount paid by the complainantto the respondents herein, towards exemplary damages, mental agony and harassment to the complainant viii.

Direct the respondents sercrally and jolntly ro pay a sum of Rs.2,00,000/'io the complainant towards the cost oflitigation. ix.

Direct the respondents to pay for the rent of the ini€rim accommodation ofthe complainaot until the posltion of the flat unit is 5.

0n the dat€ of hearing, the authority explained to the respondent/ promoter about the contraventions as alleged to have been committed in relation to section 11(a)ta) of the Act to plead gullty or not to plead guiltv.

The respondent no.

1 filed reply on 1312.m21.

However, neither the respondent no.

2 put in appearance nor have Rled any replv.ln view ofthe same, the defence of the respondentno.

2 is hereby struck ofi and *HARERA S-qrnrr,nntt Complarnt No 4979 of202I u.

Reply by respondentno.

1: The respondent no. ondent no.1 has contested the compla,nt on the iollowing That the complainants being interested in the real estate development of the respondent no.1, known under the name and style of 'AIPL loy street" located at Sector 66, village Maidawas and Badshahpur, Curusram, Haryana booked a service apartment space vide an application lorm, subsequently, was allotted unit no.

1218, having supe. area 686 74 sq. ft. and carpet area 307.93 sq. ft. located on 12h floor vide allotment lett€r datcd 30.07.2018.

Thereafter an agreement for sale dated 27.08.2018 was executed between the pa.ties along with an addendum dated 27.08.2018.

It needs to be categor,cally noted that the intention oi the complainants have been lo take the coDstructive possession ofthe unit for commercial use, as is evident from clause H, 5, 7.1 & 22 oithe agreement.

That the respondent no.

I had entered into a collaboration agreement dated 25.05.2016 with )NB Management and Bridge Street Accommodations London Limited for the operation and management oi se.viced apartments on 1od,i 11t, 126 and 14rh floors ofthe project, as is evident lrom the addendum duly executed between the parties 6.

A 1}HARER]- 1S. eunuenll,t l-omplarnt No 4c7qof 2021 That the complainants have not approached the couri with clean hands as has nowhere diinrlged the authority with the fact that have b€€n in constant defaults in making good on their part ofthe obligation.

At the very outset, it needs to be categorically highlighted that as p€r clause I olthe agreement, the allottee agreed that it shall not delay the payment or withhold the payment, however, the complainants have not made any payment since 24.09.2020 and have made delayed payments as is evident kom the account statement dated 15.01.2022 in violatio. ofthe said clause ofthe agreement. iv.

That it needs to be specifically noted that, vide the agreement dated 27.08. ted 27.08.2017, the respondent/promoter at the request of the complainant/allotte€ agreed to put the unit, on lease by way oimerg,n& hom the date ofsigning of the agreement- v.

That it needs to be categorically noted that, vide the addendum, the complainants agreed to put the unit in a rental pool for a period of 25 years.

That it was also agreed berween the parties thatth€ complainants shall be entitled to a minimum rental return of Rs.46,355/- per month, for up to 3 years hom the date ol notice of offer ol possession.

This revenue share was subject to an increase upon calculations being made up by the audited report.

That the relationship between the parties is contractual in nature and is governed by the agreement executed between the parties The rights a.d obligat,ons ol the parties flow directly from the agreement.

At the ld lTHARERA {S eunuemu \ii Complarnt No.

4979 o12021 outset, it mustbe noted that the complainants willingly consciously and voluntarily entered into the agreement after reading and understanding the contents thereof to their full satisfaction.

Hence, the complainants agreed to be bound by the terms and corditions in the application form That the responde.t has always tulffUed its obligations as per the terms and conditions of the agreement and the application form That after completing all the tormalities ahd obtaining permissions from the concern€d authorities, th€ respondent applied for occupancy cenificate on 16.07.2020 and rightly received the occupancy certificate on 28.09.2020, subsequent to which, the constnrctive possesslon was offered to the complainants on 05.10.2020.

It lzcds to be categorically noted at this instance that there has been no delay in the ofrer of possession of the unit.

Th€ due date of dellvery of possession was December 2022 as per clause 5 ofthe afeement read with clause j of the application form.

The possession has been offered two years and two months in advance, before the expiry of due date. due date.

The ofrer of possession ctarified that onty constructive possession shall be offered and not the physical possessior! as has been agreed to between the That the respondent no.

1 is one of the renowned developerc in the industry.

The act oftimely offer ofpossession on part of the respondent no.

1 needs to be appreciated and seen in line with the fact that the viii IT HARERA GURUGRA[/ complainr No.

4979o1202r respondent no.

I has not stood in breach of eny obligation.

However, on the other hand, the complainants/allottee have miserably violated the terms of the agreement.

It needs to be categoracally noted that as per clause 7.3 of the agreemenl the complainant were obliSated to take constructive possession of the unit within 30 days from the notice of oifer of possession after having cleared the dues, however, even after over 1.5 years, the same has not been done.

That the complainants assented to pay mon,es againsr tle unit as per the payment plan, schedule F of the agreement for salc ard the clause I ofthe agreemenL However, the complainants have defaulted in making the payment against the unit and taking the possession of the unit.

The complainants stopped rnaking payment towards the unit after September 2020 and continued defaulting as is €vident from the account statement annexed herewith.

The upon the default ofthe complaiDants, the respondent no.

I sent reminders atvarious iBtance. filrD October 2020 dll May 2021, however, even thereafter, the complainants have failed to make the payments and take the constructive poss€sslon ofthe unit That the total demand raised by the respondent no.

1 towards the unit inclusive ottotal sale consideration and other charges is Rs.84,12,409/- and the complainants have only made a payment of Rs.37,89,953/' which is just 40% of the total demand raised as ls evident from the account statement dated 15.01.2022.

5.01.2022.It Is a grave violation of tbe terms and conditions ofthe agreement and complainants cannot be allowed to [^ Complarnr No 4q79 of202l Thai due to non-payment and not taking the constructiv€ possession of the unit, the complainants stand in default as per clauses 9.3(jl and (,il ol the agreement.

That upon the breach oiterms and conditions ofthe agreement by the complainants, the respondent no. t has the right to te.minate the unrt aftcr intimating the complainants as per terms of Clause 9.3[iii) ofthe agreement. l hat in terms of the above'mentioned clause 9.3(iii), upon breach oithe terms and conditions oi the agreement, the respondent no.

1 sent an intimation prior to terminatjon letter on 15.01.2021 Despite this, the complainants failed to make the requisite payments.

Subsequendy a termination letter was sent to the compla,nants oD 02.08.2021 That due to non payment by the complainaDts and not taking possession oi the unit, the assured rental as per the addendul'r could noi be paid by the respondent no.

1.'Ihat thereafter, after the termination oi the unit, it m:rked the terminahon of the contractual relationship between the parties.

That the respondent no. t has always lulnlled its obligations and has shown an exenrplar conduct as a real estate developer' That the respondent no. t has also rightly paid the assured returns as per the clause 21 ol the agreement.

The complainants have paid a sum oi Rs.36,91,914/ by 24.092018, ns is evident from that accounts {S|.]ARER- & eunuenrv take benefit ol their own wrong.

H€nce, the complaint is liable to be dismissed with costs against the complainants. *HARER.: t&eunuennl,t Cooplaint No.4979 of 2021 statements.

Thereafter, the respondent no. t had rlghtly paid or adjusted the assured returns as the case may be fiom September 2018 tillSeptember 2020.

Theassured return from March 2020 to Sept€mber 2020 amounting to Rs.87,816/- were adjusted on ffnal demand on 29.09. on 29.09.2020 along with the payment of interest @12% amountinS to of Rs.1,449l- upon the delay,n payment ofassured returns.

The same are evid€nt from the account statement and th€ assured return calculation sheeL Further, it needs to be c.t gorlcally noted that the payment of assured returns had to be made only till the date of notice of offer of possession, which was made on 05.10.2020, thus, itt accordance with the same, the respondent no. t has nghdy nade the payments towards the assured return.

That the respondent no. t had abided by its terms and conditions at every point of time and the present case is merely to harass the respondent no.1.

That the complainants, inter alia, s€eiLt assured returns, which, ffrstly, have been completely and rjghtly paid by the respo.dent no 1 even when the payments have not been completely made by them, and secondly, cannot be paid in the present instance.

It is cateSorically submitted, that the payment ot such deposits is banned as per the prevalent laws.

On 21.02.2019, the Central Covernment passed an ordinance, Banning of Unregulated Deposits,2019, to stop the functioning of unregulated deposits, the Assured Returns Scheme given to the complainants fell under the scope of this ordinance and the W t ofsuch returns became wholly illegal.

That later, an act by the prv *HARER &- eunuennur aomplarnr No 4q79 of202r name The Banning ol Unregulatcd Deposits Schemes Act, 2019 ("the BUDSAct") was notified on 31.07.2019 and came into force.That under the $id BUDS Act all the unregulated deposit schemes such as Assured Returns have been banned and made punishable with strict penal provisions It falls within the category of Unregulated Deposit Scheme as under section 2[17] olthe BUDS Act and is banned under section 3 of the BUDS Act.

That being a law-abiding company, by no stretch of imagination, the respondent no.

1 can continue to make the payments of the assured returns in violation ol the BUDS Act.

BUDS Act.

That until the implementation of the said Act, the assured returns have been rightly pdid by the respondent no.1.

That after banning ofthe assured r€turns from the BUDS Act, there exists no liability of the respondent no.

1 to pay the assu.ed returns ln any case, rlhatsoever, the respondent no. t has rightly paid all the amounts towards assured returns, as per the terms and cond jtions oithe agreement.

That the respondent no. t has always attempted to bene,it the complainants in the best possible manner.

1, in its utmost Donolde offe.ed special offer on early paym€nt vide the letter dated 22.02.2019 and also offered special pre-payment in€entive offer @15% vide rts lette. dated 12.08.2019 to the complainants.

That in light ol the bano lde conduct ol the respondent no.

1, the possession, having been offered to the complainants, non'existence of T} HARERA *&- eunuenel,,t cause ofaction, and the delay in th,s complaint is bound to be 8.

Copies otalt the releva.t documents have been filed and placed on record.

Their authenticity is not i. dispule.ll€nce, the complaintcan be decided on the basis of those undisputed documents and submissions made by the E.

Iurisdiction ofthe authority: 9.

Ihe authority obse.ves that it has territorial as well as subject matter iurisdiction to adjudicate the present complaint for the reasons given Compltrrnt No.

497cof Z02l making payments by the complainanis, dismi..ed with costs in favor of the 7 The complainants have fil€d written submissions and the same were taker on record and who reiterated their earlier version as set up in the pleadings.

E.l Terrltorial , urisdictior As per notirication no.

1/92l2017-1TCP dated 14.12.2017 issued by Town and Couniry Planning Depadment, the jurisdiction of Real Estate Regulatory Authority, Curugram shall be entire Gurug.am District for all purpose with offices situated in Curugram.

Curugram.

In the present case, the project in question is situated within the planning area of Gurugram district.

Therefore, this authority has complete territorial jurisdictio. to deal with the p resent complaint.

E.ll Subject matter iurisdiction lA *HARER^ S- eunuennu Complarnr No.4979o12021 Section t1[4)(a) of the Act, 2016 prov,des that the promoter shall be responsible to the alloftees as per agreement tor sale.

Secnon 11(4)(a) is reproduced as hereunder: sectlon 11(4)(d) Be responsible for o obhgations, rcspohsibilities ond functions undet the provitio^s oI this Acr or rhe rules ond rcgulotions nade thereunt!* or to th. allotees as pet the asrcenent fur sole, ot to the aswioion ol ollott6, as the cose not be, rill the conveyonce of all the dpitnent' plors or buildinCs os the cote na! be, to the allottees, or the connon oreos tn the afuciotion oJ ollottees or the conpetent authority, ot the cose nd! be) Section 34-Functioos ot the Autloti)n 34A of fie Act provides to ensure conplion.e of the obligatiots cost upon the pronotet, the ollottees and rhe reol *tate ogqts undet this act ond the rules and regulatioAs nade theteundq.

So, in view of the provisions of the Act quoted above, the authority has complet€ jurisd,ction to decide the complaint regarding non-comprian€e of obligations by the promoter leaving aside compensation which is to be decided bythe adjudicating ofticerifpursued by the complainants at a later stage.

F.

Flndtngson the relt€fsought by the complalnants: F,l Dlrect the .erpondent to .€rtoE t{l. .llabieiit of let no.

121a and .e@ll termlnatlon letter dat€d 02.0&2021 10.

The complainants were allotted unit no.

1218, on 12ri floot (service apartments), in the proiect "AlPL loy Sireet" by the respondent/builder for a total consideration of Rs.73,83,828/-.

A buyer's agreement was execut€d on 27.08.2018.

The possession of the unit was to be offered within stipulated time period i.e., Decemb€r 2022. mb€r 2022.

Therefore, the due date of possessron comes our ro be 3l 12-2022- 11. *HARER- 1S- crnrcnnttt Complarnt No 4979 of 20?1 That the subject unit was booked under 50:50 payment plan and it has raised various concerns to the respondent w.r.t. non-payrnent of assured return since November 2019.

It further submitted that at the time of offer of possession on 05.10.2020, it visited the s,te and observed that the sublect unit ofthe complainant is still not complete despite it agrees to pay extra Rs20,00,000/- to be serviced by Bridge Street. !t further raised concern to the respondent vidc lctter dated 22.02.2021 & 16.09.2021 aSainst pre'te.mination letter dated 15.012021 and termination letter dated 02.08.2021.

The complainant vide written submissions dated 21.02.2023 submitted that they never denied payment to the respondent and the main attraction for consideration ofpurchase oiunit was service by Bridge street and further submitted that the unit was not as per the specification of buyefs agreement and m€re obtaining occupation certiflcale does not renderthe unitcomplete. 'Ihe respondent on the other hand submitted that the subject unit was booked under leasing agreement and in view of same, it was offered constructive offer of possession vide letter dated 05.10.2020 after obtaining OC on 28.09.2020 along with demand.

Despite issuance ofvarious reminders, it tailed to make payment towards consid€ration olallofted unit.

Ir furrher issued pre-termination letter dated 16.012021 followed by termination letter dated 02.08.2021.

12 13.

Accordingly, thecomplainants failed toabide by theterms oftheagreement to sellexecuted inter-se parties by defaulting in making payments in a time /r 1}HARER;. & cLrnlrcnnvr Complarnr No 4q79 of Z02i bound manner as per payment schedule.

The reluclant behavior of complainants led to issuance of notice of termination/cancellahon by the respondent on 02.08.2021.

2.08.2021.

Now, the question before the authority is whether this cancellation isvalid ornot?

14.

The authority has Sone through the payment plan, which was duly signed by both the parties, which is reproduced for ready ref€rence:' 2,12,44t a2 15. ln the present case, the complainants booked the aforesaid unit unde.

50:50 payment plan and paid an amount of Rs.37,89,983/' towards total consideration ol Rs.73,83,828/ constituting 61.32%.

As per 7.1 of agreement enumerat.s that the unjt was allotted under leasing agreement and process vides clause lor constructive possession ofthe subject unit.

The responden! builder can.elled the unit of the complainants on account of oon-payment ofdemand raised vide ofier of,constructive possession dated 05.10.2020 followed by various reminders as specified in the table above The atbresaid demands were iollowed by pre-cancellation and canc€l1ation letter dated 16.01.2021 & 02.08.2021 respectrvely.

A ComplarntNo a979of 2021 16.

It is observed by the authority that as per section 19(61 & 19(7) olAct of 2016, the allottees were under obligation to make payments towards consrderation of allotted unit as per agreement to sale dated 27.08.2018.

The respondent has given sufflcient opportunities to the complainants and finally cancelled the allotted unit of the complainant vide l€tter dated 02042021 Therelore the.rncellariondated02.08.202l isheldtobevalid.

17.

The respondent company has obtained the occupat,on certificat€ aor the projed of the allotted unit was on 28.09.2020.

Thereafte., the rcspondent/promoter issued demands letter and further, issued termination/cancellation letter to the complainants.

The respondent cancelled the unit of the complainants after giving adequate demands notices.

Thus, th€ cancellation ofunit is valid.

Further, as per clause 9. clause 9.3 (iii) ofthe agreement to sell, the respondent/promoter have rlght to cancelthe unit and forfeit the earnest money in case the allottee breached the terms and conditions of the agreement to sell executed between both the parties clause 9.3 (iii) ot the agreement to sell is reproduced as under for ready *HARER 1$-eLnuennl,t 9-3(iD ln c6e ol Delault by Alloilee undet the condition listetl obove .antinues lot o petiod beyoad 90 (ninety) doys ofier nott@ f@n the Prcmorer in this reqard, the Prunoter nay.on.el the Allotaent of the Unit in Iovour ol the A ottee and relun.l the monet pol.l to the Pronoter by the Allottee by forleitinq the Booktnq Amouna interest component an deloled paynent and noh-polnent ol on! due paydble ta the Prchoter The rcte ofinterest polobte by the Allottee to the Prcmobt thall be the stdte Bonk ol lndio highest marginal cost ol lending rcte plus 2% (tvo percent). stbject to poto 2.2, the botonce anount ol nonet poid by the Allottee sholl be retuned by the Pronater to th.

Allo$ee within 9A tnine dats of such conellotloh On su.h defatft, the Ag.eement and aar liability oI the Prcnoter arisinq out of the some sholl thereupon ston l terhihdte.l, Ptuvided thot the Pronotq shol intlmdte the rA Allottee about such temindti@ oa leosa i0 (ahlrt!) .lolt pnor ro su.h tminotion 18.

The respondent company has already obtained the occupation certiffcate for the project of the allotted unit on 28.09.2020.

Thereafter, the respondent/promoter issued demands letter and further, issued termination/cancellation letter to the complainants.

The respondent cancelled the un,t of the complainants after giving adequate demands notic€s.

Thus, the cancellation of unit is valid.

Further, the complainants_ allottees has violated the provislon of section 19(6) & (7) of Act of 2016.

However there is nothing on record to show that the amount of the complainant has been retunded to him after deduction as per relevant clause ofasreement. asreement. (Clause h appllcation form) *HARER,.

S- crnrcnnL,r Cumpldrnt No 4979 ot Z02l Though vide letter dated 02.08.2021, the details olamount to be returned after deduct,ons have been given but it is pleaded by the allottees that they have not rece,ved any amountafter cancellation ofthe unit.

Even otherwise a perusal of calculatlons Siven in letter dated 02.08.2021 shows that besides the amount deducted on account of brokerage, delayed interest, and forfeitable one, more than 50% of the paid-up amount has been deducted which is nothing but in the nature olpenalty as per section 74 of the Contract Act, 1872.

The issue with regard to deduction of earnest money on cancellation of a contract arose in cases of Maula Bux W Union ol tndio, (1970) 7 SCR 92a ond sirdar KB.

Ram Chandro RoJ Urs, vS, 19.

Now. the second issue tor consideration arises as to whether after cancellat,on the balance amount after deduction of earnest money ot the basic sale consideration of the unit has been sent to the claimants or not. *HARERA S- GURUGRAI\4 ComplaintNo.49T9of 2021 Sdrah c, Urs., (2015) 4 SCC 736, and vlherein it v'/os held thot lorfeiare ol the amount in case of breach of conioct must be reasonable ond ilforleiturc b in ke nature of penolry, then provisions oJ section 74 of Contract Act, 1872 are attoched and the porE so fo*icing nust prove actuol danoges After cancellation of olloanent, the flat remains with the builder os such there is hordly any octual damage.

National Consuner Dbpuces Red.essal Comnissions in CC/435/2019 Rotuesh Molhotro W.

Emaor MCF Land Linited (decided on 29-06.20201 ahd t4r.

Sourav sanyol vS.

M/s IREO Prtvote Ltmtted (decided on 12.04.2022\ and lollowed ln CC/2766/2017 in case titled as layafi Slnghal and Anr. yS M3M lndla Lhnlted declded on 26.07.2022, held thot 10ok ol basic sale price is reosonable omount to be forleited in the nome of "earnest mone!". st mone!".

Keepingin vlew the principles la,d down in the first two cases, a regulation known as the Haryana Real Estate Regulatory Authority Curugram (Forfeiture of earnest money by the builder) Regulations, 11(5) of2018, was farmed providingas under' "s.

AMOUNT OF SnRNE'r tOttW Scenoio ptiot to the Reol Estate [RegulatioAs a.d Developnqt) AcL 2at6 wos diferehL Ftouds were corri.d out without ony leor os the.e wos ro taw far th. sane but nov in iew ol the obove foctt ond takthg inta considerolion the )udgenents of lloh ble National consunerDkputes Redrcstul Cohnissionond the Hon ble Suptene court of tndio, the outhatirt is ol the view thot the fo4eiturc anount oJ the eornest none! sholl not d@d nore thon 10 o, the consi.letution onount ol be @l esure 1,., opartm.nt/plot/buildiag 6 the .ov ndy be h all coes where the cancettation of the fot/unit/ptot B na.te b, the buildq in o unilotercl ndnne. u the buyet intends to withdru|| lron the protect ond any a9rcefrent containing ony clouse conta., to the afaresoid rcsulotionsshollbevoid ond not btn.ling oh the buyer." la IT IARER 1 S- r,rnrc*nut Lomplrrnt No 4979 ol202I 20.

So, keeping in view the law laid down by the Hon'ble Apex court and provisions of regulation 11 of 2018 framed by the Haryana R€al Estate Regulatory Authority, Gurugram, and the respondent/builder can't retain more than 10% ofsale consideration as earnest money on cancellation but that was not done.

So, the respondent/builder is directed to refund the amount received from the complaints after deducting 10% of the basis sale consideration and retur. the reaming amount along with lnterest at the rate of 10.75% (the state Bank of lndia highest marginal cost of lending rate (MCLRI applicable as on date +2%).s prescribed under rule 15 of the Haryana Real Estate (ReSulatlor and Development) Rules, 2017, from the date ofterminat,onlcancellation 02.08. ion 02.08.2021 till the actual date ofrefund of the amount within th€ nmelines Fovldod h rub 16 of the Haryana Rules 2017 ibid.

The amouot paid on account ofassured return may be adjusted from the retundable amount.

F.lI Direct the respondent to handov.r $e physi..l possesion of the ,lat no.

1218 in the said proiect, F,lll Direct the respoDdentto pay the.dilition l ahourt ofIt5.20,00,000 Paid bv the complainant tosards finishrn8 sc i.etofbddge-street, F.lv Direct the respondents severally and ioirtly to Pay the amount of Rs,6,44,9?0/. as renral retu.n to the comDlai.ant .s per .lause 5(a) of addendum of unit buyer's.greefr ent (Amexute'4).

F.V Direct tne respond€trts to sever.lly and iointly pay a suD o4Rt3,39,936/_ for the unpaid assured return, F,VI Direct the respondents to gr.nt su.h a penalty, as may deem fitand Proper by this .uthority, towards the dela, in orering of possesion of the flat ehi.h was p.omised in the Year 2018 urtil the day such possessiotr w.s actually oft€red atthe rate ofla % Pe.antrum alongwith pendenttite and future compenstion a! the same rate till the date of actual realiation of theamount.

21.

In view offinding olthe Authority w.r.t. restoration ofunit and settingaside ofcancellation of the unit. the aioresaid relief no.2_6 becomes redundant.

HARER,-, GURUGRAI\,4 F.vll Dlrect the r.spondent to pay interest on the state Bark of Indla htghest marginal cost of lending 6te plus two DereDt of the prlnclple .mount paid by the complainant to the respondents herei!. towr.rL eremplary dam.ges, nental agonyand ha.assmenttothe complalnanl F,vlII Direct the respondents severally and ,olntly to pay a sur ol R5.2,00,000/_ to the .omplainant towards the .ost ot litig.tior.

F,lx Direct the respondent to pay for the rent ofthe interifr ..onmodation of thecomplaiMnt until the positiotr ofthe flat uDit l. ofi.red 22.

The complainant in above'mentioned reliefs is seeking compensation. pensation.

Hon'ble Supreme Court of India in civil appeal nos- 6745'6749 of 2021 tttled as M/s Newtech Promoters aad Develoryrs Pr't Lrd" y/s State of Up aors.2021.2022 (1) RCR (c,) 352 has held that an allottee is entitled to claim compensation & litigation clErg.s under sections 12,14,18 and section 19 which is to be decided by the adjudicating officer as per section 71 and the quantum ofcompensation & litigation expense shallbe adiudged by the adjudicating offfcer having due regard to the factors mentioned in section 72.

The adjudicating omcer has exclusive iu sdiction to deal with th€ complaints in respect ofcompensation.

Therefore, the complainant is at liberty to approach the adjudicatirg officer for seeking the reliel ol G.

Dlrectlonsofth€Authorityl 23.

Hence, the author,ty hereby passes this order and lssues the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the functions entrusted to the Authority under Section 34(0 ofthe Act of2016: CompLcrnt No 4979 of202I Th€ respondents are directed to refund the paid-up amount of Rs.37,89,983/- after deducting .x.eed the 100/. ol the basic sale the earnest money which shall not consideration of Rs.66,61,378l-.

The A ComplaintNo.4979 of Z0Z1 24 ii.

A p€riod of 90 days is directions given in this Compla,nt stands disposed ot File be consigned to the registry. ffi)iA 't.t - r---) (Vl,ay Kumar Goyal) Haryana Real Estate 25.

1)ated: 24.09.2023 *HARERA $S eunuennt,r amount paid on account of assured return may be ad,usted from $e relundable amount and shall return the balance amount to the complainant.

The refund should have been made on the date of cancellation i.e., 02.08.2021.

Accordingly, the interest atthe prescribed .ate i-e-,1o-75ok is allowed on the balance amount from the date of cancellation till the actual date of refund of the amount within the t,melines provided in rule 16 ofthe rules,2017.