ASHOK SABBARWAL AND ANR vs VATIKA LIMITED

1rHARERA $-eLrnrcnAv Complaint no.756 of2022 & 4 orheB BEFORE THE Order prohounced on: 71.O4.2)23 Vatika Ciry lNx ciiyCenrre HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM cR/aa6/2022 Prem P.akash Nassa & Anr V/S Vatika Limir€d cF/1qz/2022 l,alLtCandh &1nr rIl\ v,ri,[.! cR/156/2022 Mr Abhnnr cuptl R/401/2022 cR/7At/2022 5hri.

SanJeev KuharArora ORDER This order shall dispose ofall the nve the complaints titled as above tiled beiore this authoriqT under section 31 ofthe Real Estate (Regutation and Development) Act,2016 [hereinafter referred as "rheAcr"] .ead with rule 28 ofthe Haryana Real Estate (Regulation and Developmenr) Rules,2017 (he.einafter relerred as 'the rules ) for violation oisectioi t1(4)(a) ofthe Act wherein it is inter alia prescribed that the promoter shal be responsible for all irs obligations, responsib,lities and aunctjons ro the allottees as per the agreement forsale executed interse between parties.

The core issues emanating from them a.e simitar in narure and rhe complainant(sl jn the above reierred matrers are allortees ofthe projecr, namely,lndia Next Ciq, centre (commercialcompler<l being developed by 2. l HARERA GURUGRAII thesame respondent/promorer i.e.,Vatika Ltd.

Theterms aod conditions ofthe builder buyer's agreements, frrtcrum ofthe issues involved in these cases pertains to failure on the part ot the promoter to detjver timely possession ofthe units in question, seeking award of delayed possession charges, assured return and the execution ofrhe conveyance deeds.

The d€tails of the complaints, reply status, unir no., date of agreement, assured return clause, assured return rate, possession clause, due date of possession, totalsale consideratioo, amou nt paid up are given in thetable Proie.!

Vatika INXT CltyCenrre, Se.tor 83, Vatika India Next, curugra;, HR 122012 Assu.ed retum clawe ln comptalntb.artng no.756-2022 The unit has been allotred toyou with an rssured monrhty return of Rs.65l- per sq. l- per sq.lt However,dunnS the cou6e ofcoDsrruction rttl such time theburtdinS in whjch your u;it nsituatedis.eadyfo.po$esionyouwillbepajdanadditionatreturnofRs6.sol per sq.ft.

Therefore, your return payableto you shall be as foltows This addendum forhs an inregralparrofbuilder buyer Agreemenr A.

TrlLoarer ofthe possession: Rs.71.50/- per sq.

E B.AfterCompletronofthebuilding:Rs.65/-persq ft.

You would bepaid an rssured returnw.e.t 2s.O4 2l]11ona montht! basrsbefore th.l5rh ofeach calendar month.

The obligatio. ol the developer shall be ro lease the premrses ofwhich your,tat rs parr @Rs.65/- pe.sq.ft.ln rhe eventuality the achreved return being higher or lower rha; Rs l.lfthcrentaljsLe$rhanRs.65l.persq.ftrhanyoushaltbererurn.d@Rs120/-p$ sq.ft. for every Rs.

1/- bywhich achteved rentatrs less than Rs.6Sl, per sq.tr 2llthea.hreredrentalbhiCherrhanR.6Sl.per\qn.trrn5(]qnorthe,nrre.sedrenrd. \hdll dc(rue lo you kee or dry ddorr.onat sate .onsrdpra on However, ,oL wrt, be requested to payadditio.al sale considerarion @Rs.12Ol- per sq.It. for ev;.y rupee oI additional .ental a.hieved in the case otbalance 50% olincreased renrah.

Complaint no 756 oI2022 & 4 others al Assured returr.lause in complaintbearing m.

806-2022 The unit has been allon€d toyou with an assured monrhty return of Rs.65l- per sq.fr.

HNever,duringthecou6eof consrrucrionritl suchtimerheburldirsinwhj.h HARERA GURUGRA[/ Complairtno 756of 2022 & 4 othe6 is situated is ready for possessjonyou wiu b€ paid an addihonalr€turn ot Rs.13/- per sq.ft.

Therelore, your return p.yable to you shalt be as follows: This addendum forms an inteSral part oibuild€r buyerAgreement A.Tillofferofthepossession:Rs,78l-persq.ft.

B.

AfterCompletion ofrhe building: Rs.65/'per sq. ft.

Youwould bepaidan a$ured returnw.e.f.06.05.2010ona monthlybasisbeforeth.l5th ofeachcalenda.month The obligation of the developer shall be to lease the premises ofwhrch your nar is part @Rs,65/- per sq.ft. per sq.ft.ln th€ eventualiry theachieved return b€ing higher or lower than Rs I llthe rentalis less than Rs.65/ pe.sq.ft. thaiyou shallbe returned @Rs 120/ pe. sq.ft. for every Rs.1/- bywhich achiev.d rental is less than Rs.65/'persq.ft.

2.lIthe achieved rentalis higherrnan &65/- persq.ft. than 50% ofrhe increased rentat shall accrue to you free of any addltional sal€ conside.ation, However, you will be .equested to pay additionai $le collsideration @Rs,120/- persq.ft. for eve.y rupee of addinonal rentalachieved ln [email protected] 50.,6 ofincreas€d r€nrals Assured return claus in .odplalDt bearing ro, 792-2 02 2 The unit has been allorted toyou with an assured monthly rerurn or Rs 65l- per sq ir Howe!er,dunng the course ofconstruction trlLsuch tim€ the bujldrngjn which your unir ssi!uJtedis.eadyforposessionyouwillbepaidanadditronalretu.notRs6.s0/ per sq.it.

Therefore, you. return payabLetoyou shaLlbe as foLlows Th s addendum forms an integralpa!t ofburlder buyerAg.eement A Tilloierolthcpossession:Rs.71.50/-pe.sq.ft.

B.AfterCompletion oithe burldinS: Rs.65l- pErsq ft Youwould be paLd ana$urcd return w.e f.0410 2010 o. a monrhly baes belore dre 1srh ofea.h.alendar month.

The obligation ofthe developer shau be to lease the p.emrses ofwhi.h your fl,t rs parl @Rs 65/ pe.sq tt.ln theeventualitytheachieved retur. beinghrgherorlowerthan Rs 1. lithe rental is less rhan Rs 65/- per sq ft. than you shall be returned @Rs 120/. l,e. sqtt ior eve.y Rs 1/ bywhich achieved rcntalis less than Rs 65/ pe.sq.ft.

2.lirhc achreved rentaljs hisherthan R 65l- persq ft. rhan 50% olthe increased renr ac-ue to you free ofany additionalsale consrderation.

Ilowever, you will be requcsrcd a.lditional saleconsideration @R'120/' per sq.ft. fo. every rupee ofaddition.l rentalec in the case ofbalarce 50% ofincreased .enrals Assu.ed return clause in complaint b€arinsno.807.2022 *HARERA €F- clrnrcnnur ta",,,pr"t-;t6.r;,&il. l The unit has beenallotted to you with an assured monthly rerurn of Rs.65/. of Rs.65/. per sq.ft.

However,duringthecou.seofconstructionrill suchtimetheb!ildinginwhichyourunn is situated is ready for possession you will be paid.n additional rerurn ofRs.

13/, per sq.ft.

Therefore,your return payable to you shall beas iotlows: This addendum forms an integral parr olbuilderbuyerASreehent A,Till offer ofth€ possession: Rs.78l, per sq. ft.

E.AfterCompletioD ofthe building: Rs.65/- per sq. ft.

You would bepaid an assured r€turnw.e.t 10.04,2010ona monthlybasisbetoreth€ lsth oteachcalendarmonth Th€ obligation ol the developer shall be to lease the premises otwhich your flar is part @Rs,65/ persq.ft. h the eventuality ti€ achieved return beinghigheror towerthan Rs. l lrthe renialis less than Rs.65/- per sq.ft. rhan you shallbe.eturned @Rs116/- per sq.ft. fo.every Rs.1/. by which aclrlsved rentat is tess than Rs.65/. persq.fr.

2lftheachieved.entalEhigherthanRs.65/-persq.ft.than50%oftheinc.easedr€ntat shall acc.ue to you free of any addtioDal sale consideration.

However, you wil be requested to pay additional sale considerarion @Rs, 116/- pe. sq.ft.Ior every rupee oi add itional .€ntal achied in rheese otbalance 50% otrncreased rentals AsuEd Eturn cl.rse ln complaint be.rlng no.

783-2022 The unit has been allotted !orou with a. assur€d monthly r€tu.n of Rs.65/- persq.tt.

How€ver, duringthecourEolco.structiontillsuchtimerhe burldingin which yourunit is situated is ready fo. possessionyou w,llbe paid an additional return ofRs,6,50/- pe. sq,ft.

Therefore,you. return payable to you shallbe as fotlows: This addendum forns an inre8.al part olbuilder buyer Aereement A.

Tillofferofthe possessionrRs 71,50/- p.rsq. ft.

After Completion oitle buildin8: Rs.65/- persq. ft.

Youwould be paid ana$ure.lreturnw,e.f.10.05,2010 on amonrhlybasis b€forethe 15th oteach calendar month.

The obheatjon ofth. developer shallbe to lease the pftmises ofwhich your flat h parr @Rs65/'persq.ft.ln the€rentualitytheachieved retu.n being higher orlowerthan Rs. l. han Rs. l.lfthe rentalis less than Rs.65/- p€rsq.ft. rhanyou shallbe ret!rned @Rs 120l- per sq.ft. for every Rs.1/- bywhich achieved rentat is less than Rs,65/- per sq.ft.

2. lfthe a.hieved rental is higher than R,65/- per sq.ft. than 50% ofrhe in.reased renta accru€ to you free ofany additionalsale consid€.arion Bowever,you wiltbe requesred additionalsale consideraiion @Rs.

120l- persq.ft. for every rupeeofaddnional rentatacl rn lhe co(e or bdldnce 50% ot rnc.eased renral\ il HARERA GURUGRAN/ The aforesaid complaints were nled by rhe complainants against the promoter on account of violation of the builder buyer's agreement executed between the part,es inter se in respect ol sajd units for not handing over the possession by th€ due date, seeking award of delayed possession charges, assured return, and the execut,on olrhe conveyance It has been decided to treat the said complaints as an applicatjon fo. non- compliance ot statutory obli8ations on the part of the promoter/respondent in terms ofsection 34(0 ofthe AcI which mandates the authority to ensure compliance of rhe obligations cast upon the Complarnrno 756 of2022 &4 orhe6 5.

HARERA GURUGRA[/ promoters, the allottee(s) and th€ real estate agents under the Act, the rules and the regulations made thereunder.

The facts ofall the complaints nled by the compla,nant(s)/allotte€(slare also similar.

Out ofthe above-mentioned case, the particulars oflead case CR 756/2022 titled as Reena culati Vs.

M/s Votlka Llmlted are being taken into consideration for determining the .ights of rhe allottee(s) qua delay possession charges, assured return and execurion of conveyance Prolect and unir related detalls The particulars ofthe project, the details ofsale consideration, the amount paid by the complainant(s), date of proposed handing over the possession, delay period, ilany,have been detailed in the foltowing rabular forml CR/75612022 tiiled as Reena GulatiVs.

M/s Varika Limited l Name and lo. me and lo.ation of rhe "Vatika InxtCity Centel'at Sector 83, 2 4.

122 of2008 dated 14.06 2008 13.06.2U18 M/s Trishul lndrsirjpr 5.

25.04.2011 [pase 34 ofcomplaiDt) Date of execution of builder buyer'!

25.04.2011 (pase 32 ofcomplaint) 231,2tu noor 500sq.ft. (page 3{ ot 443, admeasunng 500 sq.ft., +i noor, Rs.

25,00,000/ {pase 39 otcomplaintl Complaint no 756 oi2022 & 4 oth€6 7_ THARERA $- cLrnrcnnu Complarni no 756 of 2022 & 4 others Totalamountpajd by the 25,00.000/- 20 11 2012 12 Due date otpossessron 25.44 2014 1l [page 65 olcomplarn, 14 O.cupation certifrcate B. u Facts ofthe complaint That in pursLrant to the elaborate advertisements assurances, representations and promises made by the respondent in the b.ochure circulated by them abo ut the timely co mpletion ola premium projectwith impeccable facil,ties and belleving the same to be correcr and true, the lormer allottee considered the booking ol commercial u n it bearing no.231 admeasuring 500 sq.ft. on second floor, tower A in Vatika Trade Centre, NH-8.

Sector 83, Curugram. lt was represented and assured by the respondent that the proiect including the residential unit of the former allottee would be completed by the date of30.09.2012.

That the booking of the said unit was confirmed to the complainant vide allotment letter dated 25.04.2011 enclosjng with respective terms and That subsequendy, the booking of the said unit i.e., commercial unit bearing no.231 admeasuring 500 sq.ft. on second floor, tower A was conli.med to the formerallottee vide buyer's agreemenr dated 25.04.2011, wherejn the respondent explicitly assigned allthe rights and benefits to the former allottee.

Along with thjs, both rhe parties signed addendum to the builder buyer agreement dared 25.04.2011.

9. l0 HARERA GURUGRA[/ Complarot no.

756 of2022 & 4 oth€rs 11.

The former allottee made the payment to the respondent vide cheque dated 29.03.2011 & 20.04.2011 of Rs.25,64,375l, towards the booking of 12. ing of 12.

That the respondent vide its letter dated 27.07.2011 informed the former allottee that the project has been relocated from Vatika Trade Centr. to the lNxT city centre with a better srrategically location. wirh reference to that, the respondent and forme. allottee signed the addendum to builder buyer agreement dated 24.08.2011.

13.

That ihe respond€nt vide its letter dated 20.11.2012 informed the complainant that he..equestfor change in ownership of commercial u n it bearing no.

231 admeasur,ng 500 sq.ft. on second floor, tower A is app.oved and recorded the said Rat in h€r name.

That arter, the complainant and respondent had sigDed a addendum to the buye.s agreement dated 27.11.2012.

14.

Thatthe com p lainant was shocked and appalled when respondentvide its letter dated 25.04.2013 iniormed the complainant that the new unit allocated to the complainant is now commercial unit bearing no 413 admeasuring 500 sq. ft. on 4th floor ofblock F in INXT City Centre, NH-8, Sector-83, Gurugram instead of commercial unit bearing no.

231 ad- measuring 500 sq. ft. on second floor, tower A jo lNXT City Centre, NH-8, Sector-83, Gurugram.

It is not olrt the place to mention that this act ol respondent is arbitrary and in contravention to various provisions ofthe BBA and otheragreements agreed betlveen the parties.

15.

Furthermore, with reference to the clause 32.2 olthe buye/s agreement dated 25.04.2011 and the addendum to the agreement dated 25.04.2011, the respondent had promised an assured return w.e.t 25.04.2011 of Rs.

71.50/' per sq.ft. till offer of possession of Rs.

65l- per sq.ft. after Page I of34 *HARERA $- clrnrcnnu compl.rnt no 756ot2022& 4 olhers , Ll.

10. completion of the building on a monthly basis before rhe 15,h of each Th ereafter, several effo.ts from th e complainant we. ainant we.e mad e to seek timely updates about the status of the construction work at the originatsire, but due to the negligence oa the respondent, there was no satislacrory response from its end.

The agreement entered berween the complainanr and the respondent provjded ior construction linked payment ptan. t-he complainant had assumed rhar the money collected by rhe respondent from him would be utilized for const.uction purpose oi the commercial unit at INXT City Cenke.

Unfortunately, rhe respondenr did not property utilize the complainant s hard-earned money and even afrer rhe lapse ol more than 12 years of the date of bookin& rhe project is yet to be After getting no response from the respondent, the complainantvisited the construction site but were shocked and appalled ro see that construcrion that had not been completed.

Desprte the respondent promising the complainant to prov,de him wirh world class project with jmpeccable iacilities, he was shocked to see incomplete construction being don€ at rhe construction site and the purpose ofthe complainant to book rhe unir was not aulfllled.

That due to the act of respondent by delaying rhe handing over rhe possession ofthesaid unit is resulting into restraining the complainant to use the premises.

According to the architectural norms, each buildrng has a specilic age and such delay of more than 8 years by the respondent is causing loss to the complainant.

Thal itisunambiguouslylucid thatnoforce majeu re was involved, and rhe project has been at a standstill since severalyears, precisely in the end of 1l C, 12. *HARERA S- crnrannr,r Complainr no 756 of 2022 & a othe6 2011 and it has been more than 11 years till the present date, therefore the respondent can not take a plea that the construction was halted due ro the covid-19 pandemic.

It is submitted that the reassigned complainant has already made the full paym€nt to the respondent towards the commercial un,t booked by him. ed by him.

That, despite paying such a huge sum towards the commercial unit, the respondent has failed to stand by the terms and condition of the builder-buyer agreement and the promrses, assurances, representations etc., which it made to the complainant at the time ofthe bookingthe above saidbooked unit.

That the complainant is co.strained and leftwith no option but to file this present complaint seekjng the peacetul and vacant possession, and regiskation ofthe sale deed of the unit.

Further, the complainant reserves the right(s) to add/supplement/amend/change/alter any submission(sl made herein in the complaint and further reserves the.ight to produce additional document[s) or submissions, as and when necessary or directed by this hon'ble tribunal.

Relletsought by th€ complainant: The complainant has sought follow,ng relief(s): i.

To handover the actual, physical, vacant possession of the commercial unit. ii.

To direct the respondent to execute the sale deed of the ,bove said unit in favour ofthe complajnant. iii.

To direct the respondent to pay the delay penalty charges with interestas per RER^ Act. iv.

To direct the respondent to make payment on account of the assured return in terms ofthe builder buyer agreement.

D, HARERA GURUGRAN/ Complainr no 756of 20ZZ&4othets On the date of hearing, the authoriry explained to the respondent/ promoter about the contraventions as alleged to hav€ been committed in relation to section 11(41 [a) oathe act to plead guilty or not to plead guilty.

Reply by the respondent The respondenthas contested the complaint on the following grounds. a.

That the complainant has got no locus standi or.ause ofaction to file the present complaint.

The present complaint is based on an erroneous interpretation of the provisions oa the Act as well as an incorrect understanding of the terms and conditions of the builder buyers' agreemenr dated 25.04.2011, as would be evident from the submissions made in the following paras olthe reply. b. reply. b.

That at the very outset it is submitted that rhe present complaint rs not maintainable or tenable in the €yes of law.

The complainant has m isdjrected himself in filing the above caption ed com p lai nt before the Authority as the reliefs being claimed by the complainant cannot be said to iall withjn the realm ofjurisdiction of this Ld.

Authority.

It is humbly submitted that upon the enactment ol the Banning of Unregulated Depos,t Schemes Act, 2019, (hereinafter relerred as BUDS Actl the 'Assur€d Return' and/ or any "committed returns" on the deposit schemes have been banned.

The respondent having not taken registration from SEBI Board cannot run, operate, continue an assured return scheme The impUcations of enactment of BUDS Act read with the Companies Act, 2013 and Companies (Acceptance ol Deposits)Rules, 2014, resulted in making the assu.ed return/committed return and similar schemes as unregulated schemes as being within the definition of"Deposit. *HARERA $-r,rnucnnu d Complarnt no 756 oI20Z2 & 4 others Thatas perSection 3 oithe BUDS Act all Unregulated Deposit Scheme havebeen strictlybanned and deposit takers such as builders, cannot, directly or indirectly promote, operate, issue any advertisements soliciting partic,pation or enrolment in; or accept deposit.

Thus the section 3 ofthe EUDS Act, makes the assured .eturn schemes, ofthe builders and promoter, lllegal and punishable under law.

Further as per the Se.urities Exchange Board of, India Act, 1992 {hereinaiter reierred as SEBIAct) Collective Investment Schemes as defined under Section 11 AA can only be run and operated by a registered person/company.

Hence, th€ assured return scheme of the respondent has become illegal by the operation of law and the respondent cannot be made to run a scheme which has become inftuctuous by law.

Thus, the present complaint deserves to be dismissed at the very outset, without wasting precious time of this Hon'ble Authority.

The complaint has been filed by the complainants just to harass the respondent and to ga,n the unjust enrichment For the aair adiudication oi grievance as alleged by the complainant, detailed deliberation by leading the evidence and cross-examination is required, thus only the civil Court has jurisdiction to deal with the cases req u iring detailed evidence for proper and iair adjudication.

That it is pertinent to mention that the present complaint is not maintainable before the Hon'ble Authority as it is apparent from the prayers sought in the complaint.

That iurthe. it is crystalclear from reading the complaint that the complainant is not an'allo$ee', but purely is an'investor', who is only seeking physical possessio n/delay possession charges lrom the respondent, by way olpres€nt petition, 9HARERA $-crrnrrCnav Complaint no.756 of2022 & 4 others f. c h. which is not maintainable as the unit is not meant lor personal use rather it is meantfor earning rentalincome.

That it is pertinent to mention that the present complaint is not maintainable before the Hon'ble Authority as it ,s apparent lrom the prayers sought in the complaint.

That lurther it is crystalclear from reading the complaint that the complainant is not an allottee, but purely is an'investor', who is only seeking physicalpossess'on/delay possessjon charges from the respondent, by way olpresent petition, which is not maintainable underthe provisions ofthe Act,2016.

That itisalso relevant to m ention herethatthecommercialunitoithe complainant is not meant for physical possession as the said unit is only meant for leasing the said commercial space for earning rental rnjome.

Furthermore, as per clause 32.1(d) ofthe as.eement, the sdrd commercial space would be deemed to be legally possessed by the complainant.

Hence, the commercial space booked by thc complainant is not meant tor physical possession.

That in view oi the judgment and order dated 16.10. ted 16.10.2017 passed by the Maharashtra RERA Authority in the complaint tided lrahesh Pariani vs.

Monarch Solitairc ord€r, Complaint Nol CC00600000000078 ot2017 wherein it has been obseryed that in case where the complainant has invested money in the project with sole intention of gaining profits out of the prolect, then dre complainant is in the posrtion ofco-promoter and cannot be treated as allottee'.

Thus, in view ofthe aforesaid de.ision, the complainant could not and ought not have filed the present complajnt being a co *HARERA &, c,unuennv Complarnr no 756 of 2022 & 4 othe6 That in the matter o f arhimieet &Ors vs.

M/s Londmork Aportments Pvt ltd. (Complaint No.

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

Thus, the RERA Act, 2016 cannot deal wjth issues oi assu.ed .eturn.

Hence, the complaint deserves to be dismissed at the That further rn the matter of Bhamm singh & orsvs.venetion LDF Proiectr r,rP (Complaint No, 175 of2018), the Hon'ble Real tjstate Regulatory Authority, Curugram upheld its earlier decision of not entertaining any matter related to assured returns. 'l hat the complainant has come beiore the Authority with un'clean hands.

The complaint has been flled by the complainant )ust to harass the respondent and to gain unjust enrichment.

The actual reason for liling ofthe complaint stems from the changed financialvaluation of the realestate sector, in the past few years and the allottee malicious intention to earn some easy buck.

The covid pandemic has grven people to think beyond th€ basic l€gal way and to attempt to gain financially at the cost of others.

The .omplainant has instituted the present false and vexarious complaint against the respondent who has already fulfilled its obligation as defined unde. the buyers' agreement dated 25.04.2011.

That the ershvhile allottees entered into an agreement i.e., buyer's ag.eement dated 25.04. ted 25.04.2011 with respondent company thereafter owing to the name, goodwill and reputation of the respondent the complainant purchased the unit from the erstwhile allottees on 21.11 2018.

Further, the construction of the unit was completed and the same was duly informed to the erstwhile allottees vidc lcttcr j. *HARERA S-eLrnuonnrr,l Complaint no.756 of2022 & 4 othem dated 27.03.2018.

Due to external .ircumstance which were not in control ol the respondent, minor timeline alterations occurred in completion ofthepro)ect.

Eventhough the respoDdents suffered from setback due to external circumstances, yet the respondent managed to complete the construction, further the assured returns were stopped in September 2018 thus the complainants have never .eceived any assured return amount. m.

The complaint of the complainant has been filed on the basis of incorrect understandingofthe obiect and reasons ofenactment ofthe RERA, Act, 2016.

The legislature in its great wisdom, understanding the catalytic role played by the Real Estate Se.tor in fulfilling the needs a nd demands lor housing and inftastructure inthecountrv, and the absence of a regulatory body to provide p.ofessionalism and standardization to the said sector and to address all the concerns of both buyers and p.omoters in the real estate sector, drafted and notified the RERA Ac!

2016 aiming to gain a healthv and orde.lv growth ol the industry.

The Act has been enacted to blance the interests of €onsumer and promo!€r by imposing certain responsibilities on both.

Thus, while section 11 to section 18 ol the Act, 2016 describes and prescribes the lunction and duties of the developer, section 19 provides the rights and duties of allottees Hence, the Act, 2016 was never intended to be biased legislation prefernng the allottees, ralher the intent was io ensure that both the allottee and the developer be kept at Par and either of the party should not be made to suffer due to act and omission oi part of the HARERA GURI-]GR A GURI-]GRAN/ Comph,ntno 756of2022& 4 orhe6 n.

That in matter titled Anoop Kumor Rath Vs M/S Shethlnlrou/orld Pvt.

Ltd, in appeal no.

AT00600000010822 vide order dated 30.08.2019 the tvlaharashtra Appellate Tribunal while ad)udicating points be considered while granting relief and the spirrt and obiect behind the enactment ol tbe Act, 2016 in para 24 and para 25 discussed in detail the actual purpose of maintaining a flne balance between the rigbts and duties of the promoter as wellas the allottee' The Ld.

Appellate Tribunal vide the sard judgment discussed the aim and object oithe Act, 2016 That the complainant is attempting to seek an advantage ot the slowdown in the real estate sector, and it is apparent fromthe facts of the present case that the main purpose ofthe present complaint is to harass the respondent by engagingand igDiting frivolous issues with ulterior motiv€s to pressurize the respondent.

Thus, the complaint is without any basis and no cause ofacron has arisen till date in lavour of the complainant and against the respondent and hence, the complaint deserves to be dismissed That the complainant is atEmpting to seek an advantage of the slowdown in the realestate sectorand it isapparent irom the facts of the present case that the main purPosed ofthe complaint is to harass the respond€ nt by engaging and igniting irivo lous issues with ulterior motiveto pressurize the respondent Thee.stwhile allotteeswas sent the letter dated 27.03.2018 inlorming of the completion of const.uction.

Thus, the complaint is without any basis and no cause of action has arisen tilldate in favour olthe complajnant and against the respondent and hence, the complaint deserves to bedismissed' p l *HARERA S-eLLnuennH,r Complaint no.756 of2022 & 4 orheB q.

That it is brought to the knowledge of the Authority that the complainantis guilty ofplacinguntrue lacts and is attemptingto hide the true colour oithe intention ofthe complainant. mplainant.

Belore buying the property from the erstwhile allotlees, the complainant was aware of the status ofthe projectand the lact thatthe commercialunitwas only inrended ror lea\e dnd n"!er lor physi.dl po\ses(ion r.

That, it is evident that the entire case of the complainant is nothlng but a web oflies and the false and frivolous allegations made against the respondent are nothingbutan afterthought, hence the complaint nled by the complainant deserves to bedismissed with hea\'f costs' s.

That the various contentions raised by the complainant is fictitious, baseless, vague, wrong and created to misrepresent 3nd mislead the Authority, for the reasons stated above.

It is further submitted that none of the reliefas prayed for by the complainant is sustainable, in the eyes oi ]aw.

Hence, the complaint is liable to be dismissed with imposition of exemplary cost for wasting the precious time and effo rts oi th e Authority.

The complaint is an utterabuseolthe process oflaw. and heDce deserves to b€ dism,ssed.

Copies of all the relevant documents have been nled and placed on the reco.d.

Their authenticity is not in disput€.

Hence, the complaint can be decided on the basrs of these undisputed documents and submissions made by the parties. [.

Iurisdiction ofthe authority 14.

The respondent has.aised p relimina ry objection regardingjurisdiction of authority to entertain the present complaint.

The authorily observes that it has territorial as well as subject matter iurisdiction to adjudicate the present complaint for the reasons given below. *HARERA S-eunueneu Complarnrno 756of2022& 4 others E.

I Territorial iurisdiction 1s.

Aspernotilicationno.L/92/20r?

1TCP dated74.12 2017issuedbyTown and Count.y Planning Department, Haryana thc jurisdiction oiReal Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with olfices situated in Curugram.

Curugram.

In the present case, the prolect rn question is situated within the planning area of Curugram District.

Therefore, this authority has complete territorialjurisdiction to dealwith the p.esent complaint.

E. ll Subiect-matter iurisdlctlon 16.

Section 11(a)[a) of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement lor sale. section 11t4)(a) is reproduced ashereunderl sectionll(4)(o) Be respansible lat oll obhgations, rcsPonsibilitiesond lun.ttans undet the pto$ions al thj Act or th. tules ond .egulattohs mode thereunder or tb the ollottees os Per the osreenent lar sole, ar to the osecianoh olollottees, as the.ose no! b. tillthe canrelonceofolltheopo nenLt, plots or buildtngs osthe cose ndt be, nt the ollottees, ot thc cohdoh oreas ta the ossociotion olollotteesat the canpetent outhotitf, as the cose nat be) The prowsion ol assurctl rctw$ is part oJthe builde. buvet s ogreeneht as Wr clous 15 olthe BBA doted .. acco.dinglv the pronoter 6 rcsponsible lor oll obhgotiohs/respanstbnities o n d fu ncti ohs i nctuai ng payne n t oI o s urcd tetun s o s pr ovi ded tn Builder Buler's Agreenent Se.tion j1-Functions ot the Authortt!: 34A of the A.t ptovdes to ensue conpliance althe oblisations cost upon the prcnoted, the ollattees ond the reol estote ogentt un.let this Act antl the.ules and tegulonohs mode theteundet 17.

So, in view olthe provisions ofthe Act of2016 quoted above, the authorty has complete jurisdiction to decide the complaint.egarding non' compliance of obligations by the promoter leaving aside compensation sfU\RERA gP- GURUGRATV aomplarnt no 756 o12022 & 4 orhers which is to be decided by the adjudicating omcer il complainant ata later stage.

Findings on the reli€l sought by the complaina.t: The rommon rssues with regard lo delayed possessron return and execution ofconveyance deeds are involved F.

18 t9 20.

While filine the petition besides delayed possession charges ofthe allotted unitas per build er buyer agreement, the claimanthas also sought assured returDs on monthly basis as per addendum to the agreement at the rates mentioned there,n tillthe completion ofthe buildlng.lt is pleaded that the respondent has not complied with the terms and conditions of the agreement.

Though for some rime, the amount ofassured 'eturns was paid but later on, the responde.t r€fused to pay the same by taking a plea ofthe Banning of Unregulated Deposit Schemes Act, 2019 (herein after referred to as the Act of 2019).

But that Act does not create a bar ior payment oi assured returns even afte. cominginto operation and the payments made in this regard are protected as persection 2t4l(iiil ofthe above-mentioned Act.

However, the plea of respondent is otherwise and who took a stand that though it paid the amount of assured returns upto the year 2018 but did not pay the same amount aft€r coming into f.r.e oithe Act o12019 as itwas declared illegal.

The Act oi2016 defines "agreement for sale" means an agreement entered into between the p.omoter and the allottee [Section 2(c)]' An agreement lor sale is defined as an arranqement entered between the promote' and allottee with freewill and consent of both the parties.

An agreement defines the rights and liabilities olboth the parties i.e., promoter and the allotteeand marksthestartof newconrractual relationshiPbetweenthem' *HARERA S-aLnuonm,t Complainr no.756 of2022 &4 otheA This contractual relationship gives rise to luture agreements and transactions betlveen th€m.

The different kinds ofpayment plans were in vogue and legalwithin the meaning of the agreement for sale.

One ofthe integral part of this agreement is the transaction olassured return rnter se parties.

The agreemen t for sale" after coming into force of th 's Act ( i.e., Act of 2016) shall be in the presc. the presc.ibed form as per rules but this Act of 2016 does not rewrite the 'agreemenf' entered between promoter and allottee prior to coming into iorce ofthe Act as held by the Hon'ble Bombay High Court in case lveelkamal Realto5 Suburban Privote Limited and Anr.v/s Union oltndia &Ors, (Writ Petttion No.2737 ol2017) decided on 06.12.2017.

Since the agreement d€fines the buyer promoter relahonship therefore, it can be said that the agreement for assured returns between the promoter and allottee arises out of the same relationship.

Therefore, it can be said that the real estate regulatory authority has compl€te jurisdiction to deal with 2ssured return cases as the contractual relationship arise out of agreement for sale onlv and betwe€n the same parties as per the provisions of section 11[a][a) of the Act of 2016 which provides that the promoter would be responsible tor all the obligations under the Act as per the agreement fo. sale till the execution ol conveyance deed ofthe unit in iavour of the allottee' Now, thre. issues arise for consideration as to: i.

Whethe. the authority is within its jurisdiction to va.y its earlierstand rega.d ing assu red returns due to changed facts and circumstances. ii.

Whether the autho.ity is co m petent to a llow assu red return s to the allottee in pre_RERA cases, after the Act of 2016 came into operation, *HARERA S-cunuenel,l iii.

Whether the Act of 2019 bars payment ofassured returns to the allottee in Pre RERA cases 19. while takins up the cases ol Brhimieet & Anr' Vs M/s Landmork Apartments Pvt.

Ltd. (conplaint no 1 41 o1 20181, an d sh Bharam singh & Anr. vs.

Venetoin LDr Projects U,P" (supra), it was held bv the authority that it has no jurisdiction to deal witb cases of assured returns' Thoueh in those cases, the issue ofassured returns was involved to be paid by the builder to an allottee but at that time, neither the full facts were brought beFore the authority nor it was a'gued on behalfof the allottees that on the basis o he basis of conlractual obligatio ns, the builde' is obligated to pay that amount.

However, there is no bar to take a different view from the earlrer one if new racts and law have been brought before an adiudicating authority or the court There is a doctrine of"prospective overruling" and which provides that the law declared by the court applies to the cases arising in future onlyand its applicabiliry to thecaseswhich have attained finality is saved because the repeat would otherwise work hardshrp to those who had trusted to its existence' A reierence in this regard can be made to the case ot.ton an Kufior & Anr ys Madan Lal Aggaru)al Appeal (ci,]il) 1058 of 2003 decided on 0602'2003 and wherein the hon'ble apex court observed as mention€d above' So' now the plea raised with regard to maintainability ofthe complaint in the ia'e ofearlier orders of the auth ority in not tenable.

The authority can take a different view fro m the earlier one on the basis ofnew f:cts and law and the pronouncements maile by the apex court olthe land.lt is now wellsettled preposition oilaw thatwhen payment oF assu red .etu rns is part and parcelolbuilderbuver's agreement (maybe there is 3 clause in that document or by way ol add endu m , menorandum oi understanding or terms and conditi ons of thc ;;phh,*;6 "r,oz & 4 ",1";l *HARERA S- crnrcnnnr Complaint no 756 of 2022 & 4 olhers allotment ofa unitl, then the builder is liable to pay that amount as agreed upon and cant take a plea thatit is not liableto pay the amountofassured return.

Moreover, an agreement for sale defines the builder-buyer relationship.

So, it can be said that the agreement lor assured returns between the promoter and an allotee arises out of the same relationship and is marked by the ongrnal agreement lor sale.Thereiore, it can be sard thatthe authority has complete ju.isdiction with respect to assured return cases as the contractual relationship anses out olthe agreement for sale only and between the same contracti. contracti.g parties to agreement for sale.

1n the case in hand, the issue ofassured returns is on the basis ofcontrnctual obligations arising between the pa(ies.

Then in case ol Pioneer Urban Land and Inlrostructufe Llmlud & Anr. v/s Union oJ lndia & Ors. lW tit Petition (Civill No.43 oi2019l decided on 09.08.2019, it was observed by the Hon'ble Apex Court ofthe land that "...allottees who had entered into assured return/committed reiurns' agreements with these developers, whereby, upon payment of a substantial portion of the total sale consideration upfront at the timeofexecution ofagreement, th€ developer undertook to pay a certain amount to allottees on a monthly basis from the date ol execution ot agreement till the date of handing over of possession to the allottees" lt was lurther held that'amounts raised by developers underassured return schemes had the "commercialelfect ofa bo..owing'which became clear from the developer's annual returns in which the amount raised was shown as 'commitment charges under the head "financialcosts".As a result. such allottees were held to be "financial creditorj' within the meanjng of section 5(7) of the Code" including its treatment in books of accounts of the promote. and for the purposes of income tax.

Then, in the latcst pronouncement on this aspect in casc HARERA GURUGRAI/ Jqryee Kenslngton Boulevard Apartments Wefare Assoelotlot and Ors, v3, NBCC (Indla) Ltd. and Ors.

124-O3.2027-SC); MANU/ SC/0206 /2021, the same view was followed astaken earlier in the case otPioneer Urban Land Infrastructure Ld &Anr. with regard to the allottees ofassured returns to be financial creditors within the meaning of section 5(7) olth€ Code.

Then after coming into lorce the Act of 2016 we.t01.05.2017, the builder is obligated to register the project with the authority being an on8oing project as per proviso to section 3(1) ofthe Act o12017 read with rule 2[o) of the Rules, 2017. les, 2017.

The Act of 2016 has no provision for re- writing of contractual obligadon. belween the parties as held by the Hon'ble Bombay High Court in case Neelkamal Reoltors Suburbon Prlvote Llmlted dnd Anr. v/s Unlon of lndla & Ors,, (supra) as quoted earlie..

So, the respondent/builder cant take a plea that there was no contractual obligation to pay the amountofassured returns to the allottee after the Act of 2016 came into force or that a new agreement is being €xecuted with regard to that fact.

When there is an obligation of the promotera8ainst an allottee to paytheamount ofassured returns, then he can'twriggle out from that situation by taking a plea ofthe enforcement of Acr ol 2016.

BIJDS Act 2019 or any other law 20. lt is pleaded on behalf of respondent/builder that after the Banning oi Unregulated Deposit SchemesAct 0f2019 came inro force,there is bar tor payment otassured returns to an allottee.

But again, the plea taken in this regard isdevoid ofmerit.

Section 2(4) olthe above ment,onedAct defines the word ' deposit' as ,, d nount of mone! received by way of an advance or loan or in any other form, b! ony deposit taker \yith a pronise to return tA/hether after a specilied periodorotherwise, either in cash or in kind or in Complaint no.756 of2022 & 4 oth€6 Pase 23 of34 21.

22 *HARERA $- crrnrrcnanr Com.lai.i no.756 of2022& 4.rhers the fo.m of a specified setvice, with or without any benelit in the form af interest, bonus, proltot jn ony other form, but daes notjnclude i. on amaunt received in the rcwse oI, or lor the purpose al burin?ss and bearing o genuine connection to su.h buiiners ii. advance received in cannectian $,ith considerotion of an tmnovable properE under on ogreement ar arrongement subject to the condition thot such a.lvance is adjusted ogomst such inmovoble property os speciJied in terns of the agreement A perusal of the above-mentioned definition of the term deposit shows that it has been given the same meaning as assigned to it under rhe under rhe Companies Act,2013 and the same provides under section 2(31J includes any receipt by way ofdeposit or loan or in any other form by a company but does not include such categories of amount as may be prescribed in consultation with the Reserve Bank of India.

Similarly rule 2(c) of the Companies (A€ceptance of Depositsl Rules, 2014 defines the meaning of deposit which includes any receiptofmoney by way ofdeposit or loan or in any other lorm bya company butdoes not include. i. os a advance, dccounted fot in any nonner u,hatsoever, teceived in connection with consideration for on inmovable propert, ii. as an advance receired ond as ollowed by any sectoral regulotaror in acco ance with directnns ol Cental or State Gavernment) So, keeping in view the above'mentioned provisions oithe Act of2019 and the Companies Act 2013, it is to be seen as to whethe. an allottee is entitled to assured returns in a casewhere hehas deposited substa ntial amou nt of sale consideration against the allotment of a unit with the builder at the PJSe 24 or 34 23 *HARERA {taJRTJGRAI/ Compla,nr no.756 of2022 & 4 orhets time of booking or immediately thereafter and as agreed upon betlveen The Government of India enacred the Eanning of Unregulated Deposit Schemes Act, 2019 to provide for a comprehensive mechanism to ban the unregulated deposit schemes, orher than deposits taken in rhe ordinary course ofbusiness and to protect the interest ofdepositors and ior matters connected therewith o. incidental th ereto as defined in section 2 (41ofrhe BUDS Act 2019 mentioned abov€.

It is evident from the perusal ofsection 2(410)(ii) olthe above-mentioned Act that the advances received in connecrion with considerarion ot an immovable prope.ty under an agreem€nt or arrangement subject to the condition that such advances are adjusted against such immovable property as specified in terms ofthe agreement or arrangement do not fall withjn the term ofdeposit, which have been banned by theAct of 2019. t of 2019.

I!,loreover, the developer isalso bound by promisso ry esro ppel.

As perthrs doctrine, the view is that if any person has made a promise and the promisee has acted on such promise and ahered his positjon, then the person/promisor is bound to comply w,th his or he. p.omise.

When the builders fail€d to honour their commitments, a number ofcases were filed by the creditors at different forums such as /Vildril /rrehta, Pioneer Urban Land ond Inlrastructure which ultimarely led the cenrral govern me nt ro enact the Banning ofUnregulated Deposit Scheme Act,2019 on 31.07.2019 in pursuant to the Banning of Unregulared Deposit Scheme Ordinance, 2018.

Howeve., the moot quesrion to be decided is as ro whether the schemes floated earlier by the builders and promising as assured rerurns on the basis ofallotment of units are covered by the abovementioned Acr or not.

A similar issue for conside.ation arose before Hon'ble RERA 24 *HARERA s- c,rnrc+nrr,l Conplaint no.756 oi2022 & 4 othe6 Panchkula in case Baklev Cautam yS Rlse Projects Private Limited (REe,.PKL-2068-2019) vthere in it was held on 11.03.2020 that a builder is l,able to pay monthly assu red .eturns to the complainants till possession oirespective apartments stands handed over and the.e is no illegaliry in this regard.

26. 'lhe definition of term deposit'as given in the BUDS Act 2019, has the same meaning as assigned ro ir under the Compan,es Act 2013, as per section 2(a)(iv)(il i.e, explanationto sub clause Iiv).ln pu.suant to powers conlerred by clause 31 ol section 2, section 73 and 76 read with sub, section 1 and 2 of section 469 ofthe Companies Act 2013, the Rules with regard to acceptanceofdeposits by the companies were framed in the year 2014 and the same came into force on 01.04.2014.

The dennlion of deposit has been given under section 2 (c) ofthe above-mentioned Rules and as per clause xii (b), as advance, accounted lor in any manner whatsoever received in connection with conside. h conside.ation for an immovable property under an agreement or arrangement, provided such advance is adjusted against such property in accordance with th e terms of, agreement or arrangement shall not b€ a deposil Though there is proviso to this provision as wellas to the amounts received under heading 'a' and 'd' and the amount becoming refundable with or without interest due to the reasons that the company accepting the money does not have necessary permission or approval whenever requir€d to deal in the goods or properties or services lor which the money is taken, then the amount received shall be deemed to be a deposjt under these rules.

However, the same are not applicable ,n the case in hand.

Though it is contended that there js no necessary permission orapprovalto take the sale consideration as advance andwould beconsidered as depositas per sub-clause 2(xvl{b) *HARERA S-eunuennv rompla'nt no 75bor20l2& 4orhe6 but the plea advanced in this regard is devoid oimer,t.

First ofall, there is exclusion clause to section 2 (xiv)(b) which provides that unless speciiic:lly excluded under this clause.

Earlier, the deposits received by the companies orthe builders as advance were considered as deposits but w.e.l 29.06.2016, itwas provided that the money received as such woutd not be deposit unless specifically excluded under rhis clause.

A reterence in this regard may be given to clause 2 oarhe First schedute of Regutated Deposit Schemes framed under section 2 [xv) oi the Act of 2019 which prov,des as underl (2) Thelallo|/ihg shallaha betrcoted os Reguloted Depasit schene\ undct th6 Acthohelyj [o) depoets occepted undet dhy fhene, ar on orrohsenent regtste.ed sith an! rcgulotory body ih lndto connttutud ot established under a notute: ond (b) onyothershene os nar be natiled br the cehndt covunment LnderthisAct 27.

The money was tak€n by the builder as deposit in advance against allotment oa immovable property and irs possession was to be oifered within a certain period. in period.

However, in v,€w oitaking sale consideration by way oladvance, the builder promised certain amount by way of assured returns foracertain period.So, on his failureto lulnl thatcommirment,rhe allottee has a right to approach the authority lor redressal of his grievances by way offil,ng a complaint.

28.

It is notdisputed that the.espondent is a realesrate developer, and it had not obtained .egistration under the Act of2016 for the project jn questio!.

However, the project in which the advance has been received by the developer lrom the allottee is an ongoing project as per section 3(11 ofthe Actoa2016 and, thesame would Iallwithin rhejurisdicnon ofthe authoriry lor giving the desired .elief ro the complainant besides iniriaring penal p.oceedings.

So, the amount paid by the complaiDanr ro lhe builder is a {THARERA $- cunrrc,n,qvr Complarnr no 796oi2022 & 4orhe6 regulated depost accepted by rhe later from rhe former against the immovable property to be kansferred ro theallottee lateron.

F.lI Delay possesslon charges 29.

In the present complaint, the complainant[s) intends to continuewith the project and is seeking possession olthe subject unit and delay possession charg€s as provided under the provisions ofsectio.

18(1) oftheActwhich ''Sectlon fi: - Retum of amtunt on.l .ompeMtlon 18(1). tl the prohotet ldib to conplete or k unabte to sive po*es'oa oJon opaanent. plot, ot buildins, - Ptovided thot where ak ollottee does not htend to withtlrow Jran the prciect he shall be poid, by the prcnoter, in?rest fot evu! nonth ol deloy, till the hondihg aver of the po$ession, ot su.h rate as na! be 31.

The builder buyer ag.eement was €xecuted beiween the parries.

As per clause 2 ofthe builder buyer agreementi rhe possession was to be handed ove. within 3 years from the date ofexecution ofbuilder buyeragreement.

The clause 2 ofthe builder buyer agreemenr is reproduced b€1ow: 2, Sole .

2, Sole .on sideration The Developet wi eonplete the constuction afthe soid compkxwxhn thtee (j) yeon lron the doteolexecution olthisosreenent Fwther,the Allottee hos paid fu||sole considerction oh signing althisogreenenathe Derelaper furthe. undertakes to dake poJment of Rs A\ pet onnexure A .. tRupees......) pet sq.ft. alrupq oreo per nonth b! teo! of.annitted .etutn larthe penod olconsiuctian,whi.h tt)e Allottee dulyo.cepts- tn .he event of a tine are uh n conpletion al the sob coaplex the Developet sho continue to poy to the Alloxee the wnhn nentioned o$Lred return untit thc unn it olfered by the Devetoper lot posasio. (Enphosissupplied) 32.

At the outset, it is relevant to comment on rhe preser possess,on clause of the agreement wherein the possession has been subjefted to all kinds of terms and conditions ofthis agreement, and the complainant(s) not beinq PaEe 28 oi34 *HARERA S-eLnLnnll,r Complajnt no.756 of2022 & 4others in delault under any provisions oithis agreement and compliance with a1l provisions, iormalities and documentation as prescribed bythe promoter.

The draiting ofth,s clause and incorporation ofsuch conditions is not onty vague and uncertain but so he:vily loaded in iavour ofthe promoter and against rhe allottee(s) rhat even a singte defautt by hjm in futfiltin8 formalities and documentations etc. as prescribed by the p.omoter may make the possession clause irrelevant for the purpose otallottee(sl and the commitment time period for handing over possession loses its meaning.The incorporation ofsuchclausein the buyer,s agreement by the promoter is just to evade the llability towards rimely detivery ot subjecr unit and to deprive rhe allotree[s) of their right accruing after delay in possession.

This is justto commenras to howthe buitder has misused his dominant positjon aod drafted such mischievous clause in the agreemenr and the allonee(sJ is lefrwith no oprion bur to stgn on the dotted lines.

33. lines.

33.

Admissibility of delay possession charges at prescribed rate ot interestr The compla,nan(, is seeking delay possession charges.

However, proviso to section 18 provides thatwhere an allotree(s) does not intend to withdraw from the projecr, he shall be paid, by the promorer, interest ior every month oidelay, till the handing over ol possession, at surh rate as may be prescribed and it has be€n prescribed under rute 15 oithe rules.

Rule 15 has been reproduced as underl Rule 15.

Presctibed rote ol inter.st- lProviso to section 12, section la ond sub-section 6) and subsecnm (7) oJ [1)Fotthe purpose of ptowe to sction 12; se.ton 18;ond sub yctions (4) ahd t7) ofsection 19, the "ihtercn ot the rcte prennbed shollbetheStat Bank ol tndia high$t narginol cost al ldding rcte +2%,: Ptovided thot in case rhe Stote Bonk ol tndio notllinol cost ol lending rate (MCLR) is not in use, it shal be reploced b! such *HARERA $- eunircnlr,r Complaint no.756 of2022 & 4orhers benchnork lekding rutes which the Shre Bank ol India no! lx lron tihe to tine Ior tendins to the s.herct public.

The legislature,n its wisdom inthe subordinate legislation underthe rule 15 ofthe rules has determ,nedthe prescribed rate ofinreresL 34.

Consequently, as per website of the State Bank of India j.e., the marginalcost oilending rate [in short, MCLR] as on date i.e., 11.08.2023 is 8.75%.

Accordingly, the prescribed rare oiinteresr will be marginal cost of lending rare +2% i.e., 10.75%.

35.

The definition ofterm'interest'as defined under section 2(za) of rhe Act provides that the rate of interesr chargeable from the allottee by the promoter, in case ofdeiault, shallbe equaltorhe rateotinterestwhich the promoter shallbe liable to pay the allottee, in case ofdefautr.

The.elevant section is reproduced below: ''(zo) "intetest' meahs the rotes ol interest porabk by the pronotet at the ollottee, osthecdse na! be.

Explonoaon. - l.at the puryoe ol this cloAe- (l the rcte oI itercst . itercst .horseoble Jtun the ottottee by the prcdoter, in coe ol dcfdDtt sholl be equot ta the rcre aI tntercst which the ptunotet shotl be tiabte to poy th. d ltattq, in cose ol deloutt; (ii) the lnkren poyoble by the prcnoter ta the a atEe :holl be fron the dote rhe pronotet receieed the o ounlor ony pahthercaftiltthe date the anountar pd.t the.eol ond interen thercon is refunded, antl the tntercst poloble by the ollottee to the pramatershotl be lion the dote the ollottee deloults ih poynent to the pronatet till the dote x 6 poidi 36. on consideration ofdocuments available on record and submissions made by the complainanr(s) and the respondent, rhe authoriry is sarisfied that the respondent is in cont.avent,on ofthe provisions of the Act.

By virtue oiclause 2 of,the agreem€nt executed berween the parries, the possession ofthe subject unitwas to be delivered wirhin threeyears from the date of execution ol buyers' agreemenr.

However now, the proposirion before ir is PJBe l0 of34 *HARERA 9P- eunuenm,r Complarnt no 756 or 2022 &4 orhe6 as to whether an allotteeGl who is getting/entitled for assured return even after expiry of due date of possession, can claim both the assured return as wellas delayed possession charges?

37.

To answer the above proposition, it is worthwhile to consider that the assured return is payable to theallottee(s) on accountoia provision in rhe BBA having reference of the addendum to the agreemenr.

The assured return in this case is payable from the dare of makjng 100% of the total sale consideration till completion of the building.

The rates at which assured .eturn has been committed by the promorer are more rhan .easonable in the present circumstances.

If we compare rhis assured return with delayed possession charges payable under proviso to section 18(1) of the Act, 2016, the assured return is much berter than delayed possession cha.ges.

By way of assured return, the promoter has assu. has assu.ed the allottee(sl that they would be entitled for this specific amount till completjon of construction of the sa,d building.

Accordingly, the interest of the allottee(sl is protected even after the due date of possession is over as the assured returns are payable from the first 3 y€ars aiter the date of completion ofthe projecrortillthe date ofsaid unit/space is put on lease wh,chever is earlier.The purpose otdelayed possession charges after due date ofpossession is served on payment ofassured return after due date ofpossess,on as the same is to safeguard the interest ofthe allottee as rheir money is connnued to be used by the promoter even after the promised due date and in return, they are to be pajd eithe. the assured return or delayed possession charges whichever is higher.

38 Accordingly, the authorjty decides rhat in cases where assured return is reasonable and comparable with the delayed possession charges under section 18 and assured return is payable even alter due date olpossession *HARERA 9!- c,unucnnl,r Complarnt no 756or2022& 4others is over tillthe date oicompletion ofthe project, then the allottee shallbe ent,tled to assured return or delayed possession charges, whichever is higher withour prejudice ro any other remedy including compensation.

Hence, the authority directs the respondenr/promoter to pay assured return lrom the date the payment ofassured return has not been paid till completion of construction oi building ar agreed rate per month and ar agreed rate per month fsuper area as minimum guaranteed rent up to 3 yea.s irom the date of completion ofthe said buitdjng or the said unit is put on lease whichever js earlier and declines ro order payment of any amount on account of delayed possession charges as rheir interesr has been protected by granting assured returns rill the complerion ot rhe construction of the building and thereafter also upto 3years at ditferent rate from the date ofconstruction ofthe said build,ng o. uild,ng o. rhe said unit is put on leasewhichever is earlier.

F.III Conveyance deed 39.

With respect to the conveyance deed, the p.ovision has be€n made underclause 8 ofthe bLryer's agreement and the same is reproduced for ready reference: A, Conveyonce Subtect to the apprcwl/naobtec on olthe opprop.iote the Developet shollsellthe Soid Unitto the Allottee bt evcuting ond regstenng the Conftyunce Deed and also do such othet ac\/deeds os nuy be ne nec*\ary lot conlirntng rpan theAtloueea narketoble ritle rotheSod Unx f.ce l.om o encumbrances The caneetohce Deed shall be n the lom and contentos oppro@d bJ the Devclopet'slegol odvisor ond shall be ih fovourofthe Alloiee Proviled that the Conveyohce Deed sholl be executed anlrupan receiptolfull consiaercboh onouht olthe soiauniL Srotup Dut!on.l Registrotian Chorges ond receiptolother du6 os p *HARERA $- r,rrnrcnrvr 40.

S€ction 17 (1) oa the Act deals with duty oi promoter to get the conveyance deed executed and the same is reproduced below: "17. rtunsler ol tttte.- (1) The pronoE. shollexecute o regktered canvelance deed tn fovour aI the ollattee olohg wth the undividetl p.oporttohote tttle ti the connon areos to the ossocionon ol the allatte* o. the conpetent outhority, ot the .ay hoy be, ahd hond avet the phyecol posse\ston oI the plot, oportnent albuildins, os the cae may be, to the ollottees ond the connoh oteos ta the o$o.iotion af the otloueet ot the.anpetent authantt, os the case nay be, in a real estote projeca und the ather tile docunents pertoining theteto within speciled perbd o\ pet sanctianed plans as pravtded under the locallows: Provided thot, in the obsenceolany locol lov cohvelonce decd tn lavour ol the oltottee ot the ostociotion oJ the otlottees o. the .ompetentauthoriq,os thecase tuoJ b., underthisvcuoh shall be corried aut bf the pronoter within thtee nonthslton aoteaJ6sue ol oau po n cr a rtificote." 41. cote." 41.

As OC of the unit has not been obtained, accordingly conveyance deed cannot be executed without the unit come into existence for which conclusive proof ofhaving obtained OC ftom the competent authority and filing of deed of declaration by th€ promoter befor€ registering authority.

Complainr no.756 of2022 & 4 otheB G.

Directionsoftheauthorlty 42.

H€nce, the authority hereby passes this order and issue the following directions under section 37 ol the Act to ensure compljance of obUgat,ons cast upon the promoteras per the function entrusted to the authority under section 34(0: The respondent ,s directed to pay the arrears ofamount o[assured return at agreed rate to the complainan(, in each case from the datethe payment ofassured return hasnotbeen paid tillthedate of *HARERA l$- cunLnnrvr Complaint no.

756 of 2022 & 4 others completion of construction of building.

After completion ol th€ construction ofthe building, the respondent/builderwould be liable to pay monthly assured returns at agreed rate ofthe super area up to 3 years or tillthe unit is put on lease whichever is earlier.

The respondent is also directed to pay the outstanding accrued assured return amount till date at the agreed rate within 90 days from the date of order after adiustment ofoutstanding dues, ifany, from the complainant(s) and faaling which that amount would be payable with interest @8.75%p.a. tiu the date ofactualrealization.

The respondent shall execute the €onveyance deed of the allotted unit within the 3 months from the ffnal otrer of possession atter obtaining valid OC & upon payment ofrequisite stamp duty as per norms ofthe state government The respondent shall not charge anything from the complainantG) which is not the part ofthe agreement ofsale. ,13 This decision shallmutatis mutandis apply to cases mention€d in The complaints stand disposed ot True certified copies of this orderbe placed in the case files oieach matter.

Files be consigned to registry.

45.

11.08.

11.08.2023 Estate Regu latory Authority