1. A complaint dated 13.9.2018 was filed under section 31 of the Real Estate (Regulation & Development) Act, 2016 read with rule 28 of the Haryana Real Estate (Regulation and Development) rules, 2017 by the complainants Mr. Vinod Kumar and Mrs. Madhu Yadav against M/s Landmark Page 2 of 14 Complaint No. 953 of 2018 Apartments Pvt. Ltd, on account of violation of MoU executed on 12.10.2010 in respect of unit described as below for not handing over possession and not providing assured returns which is an obligation of promoter under section 11(4)(a) of the Act ibid.
2. The particulars of the complaint are as under: -
1. Name and location of the project Landmark Cyber Park, Sector- 67, Gurugram
2. Registered / not registered Unregistered
3. Unit no. Not mentioned in MoU
4. Unit measuring 500 sq. ft
5. Date of execution of MoU 12.10.2010
6. Assured return payable upto Clause 4 - Rs.27,500/- per month till the date of possession or 3 years whichever is later.
7. Due date of offer of possession Cannot be ascertained
8. Delay till date Cannot be ascertained
9. Amount paid by the complainant till date Rs. 13,75,000/-
10. Total sale consideration Rs. 13,75,000 /-
11. Percentage of amount paid 100% (approx.)
3. The details provided above have been checked on the basis of record available in the case file which has been provided by the complainant and the respondent. An MoU is available on record which was executed on 12.10.2010. Page 3 of 14 Complaint No. 953 of 2018
4. Taking cognizance of the complaint, the authority issued notice to the respondent for filing reply and for appearance. The reply has been filed on behalf of the respondent Facts of the case
5. The complainants entered into MoU with the respondent on 9.6.2008 and were allotted 500 sq. ft subject to final confirmation of area for total sae consideration of Rs.13,75,000 out of which the complainants have paid Rs.13,75,000.
6. The complainant as well as the respondent entered into the MoU dated 12.10.2010 in terms of which as per clause 4, the respondent was liable to make payment of Rs. 27,500/- per month to the complainant as assured return up till the date of possession of the property or 3 years whichever is later.
7. Complainant visited office of the respondent and requested the respondent to handover physical possession of the property and to clear the outstanding assured returns from December 2012 onwards. Similar request was made by email dated 31.07.2015, 30.07.2015. However, no reply was received from the respondents. That the respondent had offered possession to the complainant on the ground that respondent have applied for occupancy certificate from the Page 4 of 14 Complaint No. 953 of 2018 appropriate authority, however it is a settled principle of law that the possession offered without the occupancy certificate is no application in the eye of law.
8. Complainant sent email to the respondent for providing copy of license, sanction plan, application for occupation certificate and occupancy certificate and seeking the resolution of issues regarding payment of assured return as well as handover of possession of the property, however no reply was received. Respondent was also asked to make the payment of the remaining assured return along with the interest of 18% p.a.
9. The complainant has been visiting the office of the respondent and requesting to pay the remaining assured return and to provide the documents. The complainant has been seeking payment of assured return due, however the respondent has failed to respond to the complainant in any manner.
10. As on today, a sum of Rs. 18,70,000/- from January 2013 until 31.8.2018 along with interest @ 18% per annum accruing from the respective date of the assured return becoming due until the date of payment. Page 5 of 14 Complaint No. 953 of 2018
11. The respondent has failed to abide the term and condition of the memorandum of understanding executed between the complainant and the respondent on 10.10.2010, as per the memorandum of understanding respondent has agreed to pay the assured return in the form of monthly rent to the complainant till the offer of possession which the respondent has not done till date and had even stopped paying the assured return to the complainant from January 2013.
12. The complainant had requested the respondent several times to make the payment of the assured return as promised under the MoU.
13. It is important to state herein, that the respondent has until today not received the occupation certificate of this project, and therefore this project falls under the Jurisdiction of RERA.
14. The respondent has not paid the assured return in terms of the agreement w.e.f. from January 2013, and therefore, as on the date of filing of this complaint a total sum of Rs. 18,70,000/- has become due and payable along with interest @ 18% per annum.
15. The cause of action to file this present complaint firstly arose at the time of booking of the office space, thereafter it arose on each subsequent payments so made to the respondents, Page 6 of 14 Complaint No. 953 of 2018 thereafter it again arose when the respondent paid the assured return to the complainant assured under MoU. The cause of action is continuous and the present complaint is filed as expeditiously as possible.
16. This honble authority has jurisdiction to entertain and to adjudicate this present complaint for the very reason that the project of the respondent is situated within the jurisdiction of district Gurugram, this authority has powers relegated under the act to decide and adjudicate the present complaint in its present form.
17. Issues to be decided
i. Whether the respondent made false representation as per the memorandum executed between the complainant and the respondent?
ii. Whether the respondent is liable to pay due assured return from January 2013 along with interest at the rate of 18% per annum?
iii. Whether the respondent is liable to handover the physical possession of office space?
18. Relief sought
I. The complainant in view of the foregoing submissions be awarded of Rs. 18,70,000 due Page 7 of 14 Complaint No. 953 of 2018 against the assured return from January 2013 till date along with interest at the rate of 18% per annum compounded quarterly in terms of the provisions of the Act governing this present forum from the date of the same becoming due, until its realization.
II. The complainant further be awarded future assured return in accordance with the terms and conditions of the MoU along with interest at the rate of 18% per annum compounded quarterly in terms of the provisions of the Act governing this present forum from the date of the same becoming due, until its realization.
III. The respondent be directed to provide copy of License, Sanction Plan.
IV. The complainant further prays for compensation for the harassment and mental agony caused to the complainant on account of the harassment meted out to the complainant for the past 10 years by the respondent. Page 8 of 14 Complaint No. 953 of 2018
V. The respondent be directed to allot and identify and handover the physical possession of the office space admeasuring 500 sq. ft with proper access from common areas and passages in the premises
VI. With any other order which this Honble forum may deem fit and proper be also passed in the interest of Justice in favour of the complainant and against the respondent. Reply on behalf of respondent
19. The respondent submitted that the honble authority in the similar matter titled as Brhimjeet vs. Landmark Apartments pvt. Ltd. last listed on 7.8.2018, has held that the matter in dispute therein was to be adjudicated by the adjudicating officer and not by the authority and accordingly dismissed the complaint with the liberty to approach the adjudicating officer.
20. The respondent submitted that the present complaint is not maintainable or tenable in the eyes of law as the complainant has not approached this honble authority with clean hands and has not disclosed the true and material facts relevant to this case of the complainant. That the complainant had Page 9 of 14 Complaint No. 953 of 2018 specifically not disclosed the fact that the complainant had failed to make timely payments which was a necessary covenant under the provisional allotment. That despite several reminders from the respondent, the complainant had failed to make the payments so as to be entitled for the possession of the unit. However, in the present complaint is seeking the refund of the amount citing reasons which are illegal and uneatable.
12. The complainant, thus, has approached the honble authority with unclean hands and has suppressed and concealed material facts and proceedings which have a direct bearing on the very maintainability of the purported complaint and if there had been disclosure of these material facts and proceedings, the question of entertaining the purported complainant would not have arisen. It is settled law as held by the honble Supreme Court in S.P. Chengalvaraya Naidu
v. Jagannath 1994(1)SCC(1) that non-disclosure of material facts and documents amounts to a fraud on not only The opposite parties but also on the court. Reference may also be made to the decisions of the honble Supreme Court in Dilip Singh Vs State of UP 2010-2-SCC-114 and Amar Singh Vs Union of India 2011-7-SCC-69 which is also been followed by the Honble National Commission in the case of Tata Page 10 of 14 Complaint No. 953 of 2018 Motors Vs Baba Huzoor Maharaj being RP No. 2562 of 2012 decided on 25.09.2013.
13. The present petition, so preferred under the real estate regulation and development Act 2016, is not maintainable as the complainant has failed to disclose any maintainable cause of action under the said provisions of the Act as alleged. That section 19 of the real estate regulation and development Act 2016 clearly prescribes the rights and duties of the allotees and section 19 (6).
14. That the present complaint pertains to compensation and interest for a grievance under section 12, 14, 18 and 19 of the real estate (regulation and development) Act, 2016 (hereinafter referred to as the said Act) and are required to be filed before the adjudicating officer under rule-29 of the Haryana Real Estate (Regulation & Development) rules, 2017 read with section 31 and section 71 of the said Act and not before this honble regulatory authority under rule-
28. Section 31, section 71, rule-28 and rule-29.
15. It is submitted that the respondent vide letter dated 23.6.2015 offered possession to the complainant with the request to make payment towards EDC/IDC/IMFC and any other charges in order to take possession. Page 11 of 14 Complaint No. 953 of 2018 Determination of issues
16. With regard to the first issue, the complainant has failed to provide documents in support of their allegations regarding false representation. Hence, this issue is not sustainable in eyes of law and therefore dismissed.
17. With regard to the second issue, as per clause 4 of the MoU, the respondent shall pay Rs.27,500/- as a assured return per month payable quarterly to the complainant till the date of possession or 3 years. The relevant clause is reproduced as under:
4. That the first party will pay Rs.27,500/- as a assured return per month payable quarterly to second party till the date of possession or 3 years.
18. The authority is of the view that the respondent is liable to pay assured return for a period of three years. In the present complaint, the respondent has paid a sum of Rs.12,61,010/- as assured return till 10.6.2013. So the authority is of the view that the respondent and complainant shall settle their matter w.r.t assured return.
19. With regard to third issue, the due date of possession cannot be ascertained. Page 12 of 14 Complaint No. 953 of 2018 Findings of the authority
20. The application filed by the respondent for rejection of complaint raising preliminary objection regarding jurisdiction of the authority stands dismissed. The authority has complete jurisdiction to decide the complaint in regard to non-compliance of obligations by the promoter as held in Simmi Sikka V/s M/s EMAAR MGF Land Ltd. leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainants at a later stage. As per notification no. 1/92/2017-1TCP dated 14.12.2018 issued by Town & Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram. In the present case, the project in question is situated within the planning area of Gurugram District, therefore this authority has complete territorial jurisdiction to deal with the present complaint. Decision and directions of the authority
21. After taking into consideration all the material facts as adduced and produced by both the parties, the authority exercising powers vested in it under section 37 of the Real Estate (Regulation and Development) Act, 2016 hereby issues Page 13 of 14 Complaint No. 953 of 2018 the following directions to the respondent in the interest of justice and fair play:
(i) Since the project is not registered, as such, notice under section 59 of the Real Estate (Regulation and Development) Act, 2016, for violation of section 3(1) of the Act be issued to the respondent. Registration branch is directed to do the needful.
(ii) Memorandum of Understanding was signed inter-se the parties on 12.10.2010 for which complainant has made payment of Rs.13,75,000/- for commercial unit in Landmark Cyber Park, Sector-67, Gurugram. As per clause 4 of MoU which reads as under:- That the first party will pay Rs. 27500/- as assured return per month payable quarterly to second party till the date of possession or 3 years whichever is later.
(iii) As such, the counsel for the respondent stated that they have received occupation certificate which is placed on record and they are offering possession to the complainant. As per clause 4 of MoU, both the Page 14 of 14 Complaint No. 953 of 2018 complainant and respondent are advised to settle their matter w.r.t. assured return.
22. Complaint stands disposed of accordingly.
23. Detailed order will follow.
24. File be consigned to the registry. (Samir Kumar) Member (Subhash Chander Kush) Member Haryana Real Estate Regulatory Authority, Gurugram Dated: 31.1.2019 Judgement uploaded on 26.02.2019