1. A complaint dated 18.09.2018was filed under section 31 of the Real Estate (Regulation and Development) Act, 2016 read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules, 2017 by the complainants Lakshman Singh Yadav & Sons HUF and Mrs. Asha Yadav against the promoters M/s Landmark Apartments Pvt. Ltd and ors., on account of violation oF clause 4 of memorandum of understanding (MoU) executed on 10.09.2008 in respect of unit described below for not paying assured return and for not handing over possession by the due date 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 Not registered
3. Unit no. Cannot be ascertained from the documents available on record.,
4. Unit measuring as per MoU 500 sq. ft. (tentatively)
5. Date of execution of MoU 10.09.2008
6. Assured return to be paid as per clause 4 of MoU. Rs.27,500/- per month payable quarterly till the date of possession or 3 years.
7. Amount paid by the complainants till date Rs.13,75,000/- as per clause 9 of MoU Page 3 of 13 Complaint No. 952 of 2018
8. Total sale consideration Rs.13,75,000 /- as per clause 1 of MoU (excluding taxes)
9. Date of delivery of possession. Cannot be ascertained
10. Delay in handing over possession till date of decision Cannot be ascertained
3. The details provided above have been checked on the basis of record available in the case file which has been provided by the complainants and the respondents. No builder buyer agreement is available on record but a MOU dated 10.09.2008 is available on record.
4. Taking cognizance of the complaint, the authority issued notice to the respondent for filing reply and for appearance. The respondent appeared on 31.01.2019. The case came up for hearing on 21.12.2018 and 31.01.2019. The reply filed on behalf of the respondent on 17.10.2018 has been perused. Facts of the case
5. The complainants submitted that the complainant and the respondent entered into a memorandum of understanding for the upcoming project of the respondent named as Landmark Cyber Park at Sector 67, Gurugram on 10.09.2008. Complainants were allotted 500 sq. ft. subject to final confirmation of area on completion of the building for Page 4 of 13 Complaint No. 952 of 2018 the total sale consideration of Rs.13,75,000/- out of which the complainants have paid a sum of Rs.13,75,000/-.
6. The complainants submitted that in terms of clause 4, the respondent was liable to make payment of Rs.27,500/- per month to the complainants as assured return up till the date of possession of the property or 3 years, whichever is later. The complainants submitted that the respondent communicated to the complainants regarding intimation of the possession of the project stating that the respondent has applied for occupation certificate.
7. The complainants submitted that they 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. However, no reply was received from the respondents.
8. The complainants submitted that Sh. Lakshman Singh Yadav, Karta of M/s Lakshman Singh Yadav & Sons HUF, expired on 06.12.2017 after which Sh. Bhup Singh Yadav was appointed as karta of the said HUF and the present complaint is also being filed by the said karta.
9. The complainants submitted that they sent an email to the respondent for providing copy of license, sanction plan, Page 5 of 13 Complaint No. 952 of 2018 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.
10. The complainants submitted that the respondent has failed to abide by the term and condition of MoU dated 10.09.2008. As per the memorandum of understanding, respondent has agreed to pay the assured return in the form of monthly rent to the complainants 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 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% p.a.
11. The complainants submitted that 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, thereafter it again arose when the respondent paid the assured return to the complainants as per MoU. The cause of action is continuous Page 6 of 13 Complaint No. 952 of 2018 and the present complaint is filed as expeditiously as possible.
12. The complainants submitted that 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 under the Act ibid to decide and adjudicate the present complaint in its present form. Issues to be decided
13. The relevant issues as per the complaint are:
i. Whether the respondent made false representation as per the memorandum executed between the complainants 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? Reliefs sought:
14. The complainants are seeking the following reliefs:
i. The complainants in view of the foregoing submissions be awarded Rs.18,70,000/- due against the assured Page 7 of 13 Complaint No. 952 of 2018 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 complainants 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, application of occupation certificate, etc.
iv. 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. Reply on behalf of the respondent
15. The respondent submitted that the honble authority in the similar matter titled as Brhimjeet vs. Landmark Apartments Pvt. Ltd. last listed on 7.08.2018, has held that the matter in dispute therein was to be adjudicated by the adjudicating officer and not by the authority and accordingly dismissed Page 8 of 13 Complaint No. 952 of 2018 the complaint with the liberty to approach the adjudicating officer. The facts related to the aforesaid mentioned case and the present case in dispute are identical in nature and thus the present complaint should be dismissed.
16. The respondent submitted that the present complaint is not maintainable or tenable in the eyes of law as the complainants have not approached this honble authority with clean hands and have not disclosed the true and material facts relevant to this complainant. It is submitted that as per the term and conditions of the MoU, the respondent agreed to pay a sum of Rs.27,500/- as assured return per month payable quarterly to the complainants till the date of possession or three years. The complainants have concealed a material fact that the respondent has not only paid the assured return amounting to Rs.8,89,760/- for the period of 3 years (i.e. 10.03.2012), but has also paid the same in excess by Rs.3,34,125/- for the period of almost another one and a half years i.e. till 10.06.2013. It is submitted that as per MoU, the complainants were eligible for the assured return only till 3 years i.e. by 10.03.2012 or date of possession but the respondent paid the assured return till 10.06.2013. Therefore, the complainants apart from clearing the dues amounting to Rs.4,27,450/-, is also liable to the Page 9 of 13 Complaint No. 952 of 2018 refund the excess of assured return amounting to Rs.3,34,125/-.
17. The respondent submitted that the reliefs sought by the complainants are contractual in nature, as the complainant, through this honble authority, is trying to invoke the clause of the MoU which specifically states about the payment of assured return. The present complaint is not maintainable and only a civil court could adjudicate the dispute in question as the transaction being contractual in nature.
18. The respondent submitted that the project was complete in the year 2015 and accordingly the respondent had applied for OC before the competent authority and offered possession vide intimation letter dated 10.07.2015 requesting the complainants to clear EDC/IDC/IMFS and any other charges.
19. The respondent submitted that the complainants have approached the honble authority with unclean hands and have 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 complainants would not have arisen. It is settled law as held by the honble Supreme Court in S.P. Chengalvaraya Naidu v. Jagannath Page 10 of 13 Complaint No. 952 of 2018 1994(1)SCC(1) that non-disclosure of material facts and documents amounts to a fraud not only on 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 Motors Vs Baba Huzoor Maharaj being RP No. 2562 of 2012 decided on 25.09.2013.
20. The respondent submitted that the present complaint pertains to compensation and interest for a grievance under section 12, 14, 18 and 19 of the Act ibid and are required to be filed before the adjudicating officer under rule-29 of the rules ibid read with section 31 and section 71 of the said Act and not before this honble regulatory authority under rule- Determination of issues After considering the facts submitted by the complainants, reply by the respondent and perusal of record on file, the issue wise findings of the authority are as under:
19. With regard to the first issue, the complainant has failed to provide documents in support of their allegations regarding Page 11 of 13 Complaint No. 952 of 2018 false representation. Hence, this issue is not sustainable in eyes of law and therefore dismissed.
20. 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.
21. As per clause 4 of MoU, both the complainants and respondent are advised to settle their matter w.r.t assured return.
22. With regard to third issue, the due date of possession cannot be ascertained as there is no documentary proof to ascertain the same. The parties have not even agitated the same at the time of oral arguments. Findings of the authority
23. 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 Page 12 of 13 Complaint No. 952 of 2018 stage. As per notification no. 1/92/2017-1TCP dated 14.12.2017 issued by Town & Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District. 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.
24. The memorandum of understanding was signed inter-se the parties on 10.09.2008 for which complainants have made payment of Rs.13,75,000/- for commercial unit in Landmark Cyber Park, Sector-67, Gurugram. Clause 4 of MoU reads as under:- That the First Party will pay Rs. 27500/- as a assured return per month payable quarterly to Second Party till the date of possession or 3 years.
25. As per clause 4 of MoU, both the complainant and respondent are advised to settle their matter w.r.t. assured return. Decision and directions of the authority
26. 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 Page 13 of 13 Complaint No. 952 of 2018 Estate (Regulation and Development) Act, 2016 hereby issues the following directions in the interest of justice and fair play:
(i) The complainants and respondent are advised to settle their matter w.r.t. assured return as per clause 4 of the MoU.
(ii) Since, the project is not registered, as such, notice under section 59 of the Act ibid for violation of section 3(1) of the Act ibid be issued to the respondent. Registration branch is directed to do the needful.
27. The order is pronounced.
28. Case file be consigned to the registry. (Samir Kumar) Member (Subhash Chander Kush) Member Haryana Real Estate Regulatory Authority, Gurugram Dated: 31.01.2019 Judgment Uploaded on 10.04.2019