BEFORE THE HONOURABLE REAL ESTATE REGULATORY

AUTHORITY,
GURUGRAM, HARYANA
CR/3050/2020
NDOH: 21.07.2023

SATYANAND SHUKLA

……..COMPLAINANT
VERSUS

EMAAR INDIA LTD.

(FORMERLY EMAAR MGF LAND LTD)

……..RESPONDENT

MOST RESPECTFULLY SHOWETH:

1. That the said matter had come for hearing on

21.04.2023 and the next date of hearing was fixed

as 21.07.2023.

2. It has been stated as under in the Varun Gupta Vs Emaar

Judgement as under at Para 53 onwards as under:

“Whether subsequent allottee is also an allottee as per

provisions of the Act?”

53. The term “allottee” as defined in the Act also includes

and means the subsequent allottee, hence is entitled to

the same relief as that of the original allottee. The

definition of the allottee as provided in the Act is

reproduced as under: “2 In this Act, unless the context

otherwise requires- (d) "allottee" in relation to a real

estate project, means the person to whom a plot,

apartment or building, as the case may be, has been

allotted, sold (whether as freehold or leasehold) or

otherwise transferred by the promoter, and includes the

person who subsequently acquires the said allotment

through sale, transfer or otherwise but does not include a

person to whom such plot, apartment or building, as the

case may be, is given on rent”. Accordingly, following are

allottees as per this definition: Page 74 of 205 Complaint

No. 4031/2019 and others (a) Original allottee: A person

to whom a plot, apartment or building, as the case may

be, has been allotted, sold (whether as freehold or

leasehold) or otherwise transferred by the promoter.

Allottees after subsequent transfer from the original

allottee: A person who acquires the said allotment through

sale, transfer or otherwise. However, allottee would not be

a person to whom any plot, apartment or building is given

on rent. From a bare perusal of the definition, it is clear

that the transferee of an apartment, plot or building who

acquires it by any mode is an allottee. This may include (i)

allotment; (ii) sale; (iii) transfer; (iv) as consideration of

services; (v) by exchange of development rights; or (vi) by

any other similar means. It can be safely reached to the

only logical conclusion that no difference has been made

between the original allottee and the subsequent allottee

and once the unit, plot, apartment or building, as the case

may be, has been re-allotted in the name of the

subsequent purchaser by the promoter, the subsequent

allottee enters into the shoes of the original allottee for all

intents and purposes and he shall be bound by all the

terms and conditions contained in the builder buyer’s

agreement including the rights and liabilities of the

original allottee. Thus, as soon as the unit is reallotted in

his name, he will become the allottee and nomenclature

“subsequent allottee” shall only remain for identification

for use by the promoter. Therefore, the authority does not

draw any difference between the allottee and subsequent

allottee per se.

54. Reliance is placed on the judgment dated 26.11.2019

passed in consumer complaint no. 3775 of 2017 titled as

Rajnish Bhardwaj Vs. M/s CHD Developers Ltd. by NCDRC

wherein it was held as under: “15. So far as the issue

raised by the Opposite Party that the Complainants are

not the original allottees of the flat and resale of flat does

not Page 75 of 205 Complaint No. 4031/2019 and others

come within the purview of this Act, is concerned, in our

view, having issued the Re-allotment letters on transfer of

the allotted Unit and endorsing the Apartment Buyers

Agreement in favour of the Complainants, this plea does

not hold any water………………………………………………….”

55. The authority concurs with the Hon’ble NCDRC’s

decision dated 26.11.2019 in Rajnish Bhardwaj vs. M/s

CHD Developers Ltd. (supra) that it is irrespective of the

status of the allottee whether it is original or subsequent,

an amount has been paid towards the consideration for a

unit and the endorsement by the developer on the

transfer documents clearly implies his acceptance of the

complainant as an allottee. 56. Therefore, taking the

above facts into account, the authority is of the view that

the term subsequent allottee has been used

synonymously with the term allottee in the Act. The

subsequent allottee at the time of buying a unit/plot takes

on the rights as well as obligations of the original allottee

vis-a-viz the same terms and conditions of the builder

buyer’s agreement entered into by the original allottee.

Moreover, the amount if any paid by the subsequent or

original allottee is adjusted against the unit in question

and not against any individual. Furthermore, the name of

the subsequent allottee has been endorsed on the same

builder buyer’s agreement which was executed between

the original allottee and the promoter. Therefore, the

rights and obligation of the subsequent allottee and the

 promoter will also be governed by the said builder buyer’s

agreement.”

3. That the original allottee for the Unit No. EHF-267-

A-FF-053 were Mr. Lokesh Nigam and Ms. Ila Nigam

who had signed the BBA on 17.03.2010 (before the

RERA 2016 can into operation. (Kindly refer Page

No. 63 of the Reply)

4. The project was registered by Emaar with RERA for

License No. 162 of 2017 on 29.08.2017.

5. The delivery was 27 Plus 6 months Clause No. 13. 1

Page No. 17 of the BBA and Page No 78 of the

Reply. Hence the delivery date was 16.12.2012.

6. Second allottee Shri Rajeshwar Banerjee and Mrs.

Shomita were transferred the property on BBA on

10.05.2013 ( Before the RERA came into existence)

and this is after the due date of possession being

16.12.2012.

7. Therefore, in view of the judgement of Varun Gupta

Vs Emaar the above category defined at serial No. 5

falls under Category “ b “ of the judgement and is

entitled for the DPC from the date of endorsement

on the BBA which in the present case is 10.05.2013.

8. The complainant Shri Satyanand Shukla & Mrs. Jaya

Shukla got the property transferred on 03.09.2019,

being the third allottee, which was after the

enactment of RERA and after the Registration of

the project with HRERA Page No. 59 of the BBA and

Page No120 of the Reply.

9. Therefore, the complainant fell under Category “d”

of the Varun Gupta judgement, which reads as

under:

“Where the subsequent allottee has stepped into

the shoes of original allottee after coming into

force of the Act and after the Registration of the

project in question.”

“Therefore, the authority is of the view that in cases

where the subsequent allottee had stepped into the shoes

of original allottee Page 83 of 205 Complaint No.

4031/2019 and others after coming into force of the Act

and after the registration of the project in question, the

delayed possession charges shall be granted w.e.f. due

date of handing over possession as per the builder buyer’s

agreement”
10. In such cases as per the order of the Authority

the delayed possession charges shall be granted

with effect from due date of handing over

possession as per the Builder Buyer Agreement.

11. Hence the complainants in the present case are

entitled for the Delayed Possession Charges.

12. The issue pertaining the extinguishment of the

rights of an allottee on signing of indemnity-cum-

undertaking bond was taken up at length,

deliberated, discussed and decided as under:

Whether signing of indemnity-cum-undertaking at the

time of possession or unit hand over letter extinguishes

the right of the allottee to claim delay possession

charges?

At times, the allottee is asked to give the affidavit or

indemnity-cum-undertaking in question before taking

possession. The allottee has waited for long for his

cherished dream home and now when it is ready for

taking possession, he has either to sign the indemnity-

cum-undertaking and take possession or to keep

struggling with the promoter if indemnity-cum-

undertaking is not signed by him. Such an undertaking/

indemnity bond given by a person thereby giving up their

valuable rights must be shown to have been executed in a

free atmosphere and should not give rise to any suspicion.

If a slightest of doubt arises in the mind of the adjudicator

that such an agreement was not executed in an

atmosphere free of doubts and suspicions, the same

would be deemed to be against public policy and would

also amount to unfair trade practices. No reliance can be

placed on any such indemnity-cum-undertaking and the

same is liable to be discarded and ignored in its totality.

Therefore, this authority does not place reliance on such

indemnity cum undertaking. To fortify this view, the

authority place reliance on the NCDRC order dated

03.01.2020 in case titled as Capital Greens Flat Buyer

Association and Ors. Vs. DLF Universal Ltd., Consumer

case no. 351 of 2015, wherein it was held that the

execution of indemnity-cum-undertaking would defeat the

provisions of sections 23 and 28 of the Indian Contract

Act, 1872 and therefore, would be against public policy,

besides being an unfair trade practice. The relevant

portion of the said judgment is reproduced herein below:

“Indemnity-cum-undertaking - The developer, while

offering possession of the allotted flats insisted upon

execution of the indemnity-cum-undertaking before it

would give possession of the allotted flats to the

concerned allottee.
Clause 13 of the said indemnity-cum-undertaking required

the allottee to confirm and acknowledge that by accepting

the offer of possession, he would have no further

demands/claims against the company of any nature,

whatsoever. It is an admitted position that the execution

of the undertaking in the format prescribed by the

developer was a pre- requisite condition, for the delivery

of the possession.

The opposite party, in my opinion, could not have

insisted upon clause 13 of the Indemnity-cum-

undertaking. The obvious purpose behind such an

undertaking was to deter the allottee from making

any claim against the developer, including the

claim on account of the delay in delivery of

possession and the claim on account of any latent

defect which the allottee may find in the

apartment. The execution of such an undertaking

would defeat the provisions of Section 23 and 28 of

the Indian Contract Act, 1872 and therefore would

be against public policy, besides being an unfair

trade practice. Any delay solely on account of the

allottee not executing such an undertaking would

be attributable to the developer and would entitle

the allottee to compensation for the period the

possession is delayed solely on account of his

having not executed the said undertaking-cum-

indemnity.”

The said judgment of NCDRC was also upheld by the

Hon’ble Supreme Court vide its judgement dated

14.12.2020 passed in civil appeal nos. 3864-3889 of 2020

against the order of NCDRC.

Hon’ble Supreme Court and various High Courts in

plethora of judgments have held that a term of a contract

shall not be binding if it is shown that the same were one

sided and unfair and the person signing did not have any

other option but to sign the same. Reference can also be

made on the directions rendered in the Pioneer Urban

Land and Infrastructure Limited Vs. Govindan Raghavan

passed by the Hon’ble Apex Court as well as in the

Neelkamal Realtors Suburban Pvt. Ltd. (supra) and others.

A similar view has also been taken by the Apex court in

IREO Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors.

dated 11.01.2021.

The unit hand-over letter was relied upon by the learned

counsel for the respondent in support of his submissions,

that the complainant having taken possession of the

allotted unit without any demur and protest and having

got the sale deed executed in his favour without any

protest are not entitled to any compensation. The relevant

para of the unit handover letter relied upon reads as

under: “The allottee, hereby, certifies that he/she has

taken over the peaceful and vacant physical possession of

the aforesaid Unit after fully satisfying himself/herself with

regard to its measurements, location, dimension and

development etc. and hereafter the allottee has no claim

of any nature whatsoever against the company with

regard to the size, dimension, area, location and legal

status of the aforesaid Home.” The counsel for the

respondent further submitted that upon acceptance of

possession, the liabilities and obligations of the company

as enumerated in the allotment letter/agreement

executed in favour of the allottee stands satisfied.

It is noteworthy that section 18 of the Act stipulates for

the statutory right of the allottee against the obligation of

the promoter to deliver the possession within stipulated

timeframe. Therefore, the liability of the promoter

continues even after the execution of indemnity-cum-

undertaking at the time of possession. Further, the

reliance placed by the respondent counsel on language of

the handover letter, that the allottee has waived off his

right by signing the said unit handover letter is superficial.

In this context, it is appropriate to refer case titled as Mr.

Beatty Tony Vs. Prestige Estate Projects Pvt, Ltd. (Revision

petition no.3135 of 2014 dated 18.11.2014), wherein the

Hon’ble NCDRC while rejecting the arguments of the

promoter that the possession has since been accepted

without protest vide letter dated 23.12.2011 and builder

stands discharged of its liabilities under agreement, the

allottee cannot be allowed to claim interest at a later date

on account of delay in handing over of the possession of

the apartment to him, held as under: "The learned counsel

for the opposite parties submits that the complainant

accepted possession of the apartment on 23/24.12.2011

without any protest and therefore cannot be permitted to

claim interest at a later date on account of the alleged

delay in handing over the possession of the apartment to

him. We, however, find no merit in the contention. A

perusal of the letter dated 23.12.2011, issued by the

opposite parties to the complainant would show that the

opposite parties unilaterally stated in the said letter that

they had discharged all their obligations under the

agreement. Even if we assume on the basis of the said

printed statement that having accepted possession, the

complainant cannot claim that the opposite parties had

not discharged all their obligations under the agreement,

the said discharge in our opinion would not extend to

payment of interest for the delay period, though it would

cover handing over of possession of the apartment in

terms of the agreement between the parties. In fact, the

case of the complainant, as articulated by his counsel is

that the complainant had no option but to accept the

possession on the terms contained in the letter dated

23.12.2011, since any protest by him or refusal to accept

possession would have further delayed the receiving of

the possession despite payment having been already

made to the opposite parties except to the extent of Rs.

8,86,736/-. Therefore, in our view the aforesaid letter

dated 23.12.2011 does not preclude the complainant from

exercising his right to claim compensation for the

deficiency on the part of the opposite parties in rendering

services to him by delaying possession of the apartment,

without any justification condonable under the agreement

between the parties."

The said view was later reaffirmed by the Hon’ble NCDRC

in case titled as Vivek Maheshwari Vs. Emaar MGF Land

Ltd. (Consumer case no. 1039 of 2016 dated 26.04.2019)

wherein it was observed as under: “7. It would thus be

seen that the complainants while taking possession in

terms of the above referred printed handover letter of the

OP, can, at best, be said to have discharged the OP of its

liabilities and obligations as enumerated in the

agreement. However, this hand over letter, in my opinion,

does not come in the way of the complainants seeking

compensation from this Commission under section 14(1)

(d) of the Consumer Protection Act for the delay in

delivery of possession. The said delay amounting to a

deficiency in the services offered by the OP to the

complainants. The right to seek compensation for the

deficiency in the service was never given up by the

complainants. Moreover, the Consumer Complaint was

also pending before this Commission at the time the unit

was handed over to the complainants. Therefore, the

complainants, in my view, cannot be said to have

relinquished their legal right to claim compensation from

the OP merely because the basis of the unit has been

taken by them in terms of printed hand over letter and the

Sale Deed has also been got executed by them in their

favour.” 44. It is observed by the authority that the

respondent had failed to show a single incident wherein

the indemnity-cum-undertaking has been executed by the

complainant in a free atmosphere. On the contrary, in the

lead complaint Varun Gupta Vs. Emaar MGF Land Ltd.

(4031/2019), the complainant had deposited the amount

under protest which clearly shows that the said indemnity-

cum-undertaking has been executed under a distress

atmosphere where the complainant in order to take

possession of the unit has executed the said indemnity-

cum-undertaking.

Therefore, in light of the aforesaid discussion and

judgements, the authority is of the view that the

aforesaid unit handover letter or execution of

indemnity-cum-undertaking does not preclude the

complainant-allottee from exercising his right to

 claim delay possession charges as per the

provisions of the Act.

13. Clause No. 26 Page No. 27 of the BBA and Page

No 88 of the reply reads as under:

“It is clearly understood and so agreed by and

between the Parties hereto that all the provisions

contained herein and the obligations arising

hereunder in respect of the said Floor/ Building /

Project shall equally be applicable to and

enforceable against any and all occupiers, tenants,

licensees and/or subsequent allottee(s)/ assignees

of the said Floor, as the said obligations go along

with the said Floor for all intents and purposes.”

14. In view of the above clause, the Indemnity-cum-

Undertaking, gets overruled on endorsement of the

BBA in favor of the complainant as the Indemnity-

cum-Undertaking was signed on 28/08/2019 a date

prior to the endorsement of the BBA being

03.09.2019.

WHETHER A FLAT BUYER WHO SEEKS TO ESPOUSE A

CLAIM AGAINST THE DEVELOPER FOR DELAYED
POSSESSION CAN AS A CONSEQUENCE OF DOING SO
 BE COMPELLED TO DEFER THE RIGHT TO OBTAIN A
CONVEYANCE TO PERFECT THEIR TITLE

15. In the recent judgement of Wg. Cdr Arifur

Rahman Khan & Aleya Sultana & Othrs. Vs DLF
Southern homes Pvt ltd decided on 24.08.2020 by
Supreme Court of India in Civil Appeal no. 6239 of 2019
6303 of 2019 held even after taking the possession of
Flat/Unit/house and doing conveyance deed later, the
homebuyer/complainants are entitled for delay interest or
compensation interchangeably used.

16. Honourable Supreme Court in Wg. Cdr. Arifur

Rahman Khan And ... vs Dlf Southern Homes Pvt.
Ltd. Bench Headed by Honourable Mr. Justice
Chandrachud held

“It would, in our view, be manifestly unreasonable to

expect that in order to pursue a claim for compensation
for delayed handing over of possession, the purchaser
must indefinitely defer obtaining a conveyance of the
premises purchased or, if they seek to obtain a Deed of
Conveyance to forsake the right to claim compensation.”

“The flat buyers were essentially presented with an unfair

choice of either retaining their right to pursue their claims
(in which event they would not get possession or title in
the meantime) or to forsake the claims in order to perfect
their title to the flats for which they had paid valuable
consideration. In this backdrop, the simple question which
we need to address is whether a flat buyer who seeks to
espouse a claim against the developer for delayed
possession can as a consequence of doing so be
compelled to defer the right to obtain a conveyance to
perfect their title. It would, in our view, be manifestly
 unreasonable to expect that in order to pursue a
claim for compensation for delayed handing over of
possession, the purchaser must indefinitely defer
obtaining a conveyance of the premises purchased
or, if they seek to obtain a Deed of Conveyance to
forsake the right to claim compensation. This
basically is a position which the NCDRC has
espoused. We cannot countenance that view.

The flat purchasers invested hard earned money. It

is only reasonable to presume that the next logical
step is for the purchaser to perfect the title to the
premises which have been allotted under the terms
of the ABA. But the submission of the developer is that
the purchaser forsakes the remedy before the consumer
forum by seeking a Deed of Conveyance. To accept such
a construction would lead to an absurd
consequence of requiring the purchaser either to
abandon a just claim as a condition for obtaining
the conveyance or to indefinitely delay the
execution of the Deed of Conveyance pending
protracted consumer litigation.”

17. As early as 2016, in Consumer Case No. 1039 of 2016 it

was held by Honourable Mr. Justice V K Jain, Presiding
Member, as under in a matter titled Vivek Maheshwari
Versus Emaar MGF Land Limited as under:

“It would thus be seen that the complainants while taking

possession in terms of the above referred printed hand
over letter of the OP, can, at best, be said to have
discharged the OP of its liabilities and obligations as
enumerated in the agreement. However, this hand over
letter, in my opinion, does not come in the way of the
complainant’s seeking compensation from this
Commission under Section 14(1)(d) of the Consumer
 Protection Act for the delay in delivery of possession. The
said delay amounting to a deficiency in the services
offered by the OP to the complainants. The right to seek
compensation for the deficiency in the service was never
given up by the complainants. Moreover, the Consumer
Complaint was also pending before this Commission at the
time the unit was handed over to the complainants.
Therefore, the complainants, in my view, cannot be said
to have relinquished their legal right to claim
compensation from the OP merely because the basis of
the unit has been taken by them in terms of printed hand
over letter and the Sale Deed has also been got executed
by them in their favour.”

18. Similar view has been expressed by the Honourable

Haryana Real Estate Regulatory Authority, Gurugram in
the matter of Varun Gupta Versus Emaar and 49 others
wherein it was held as under, relying on the above two
judgements:

“From the above it is clear that on execution of a sale /

conveyance deed only the title and interest in the said
immovable property is transferred. However, the
conveyance deed doesn't mark an end to the liabilities of
a promoter since various sections of the act provide for
continuing liability and obligation of a promoter who may
not under the garb of such contentions be able to avoid its
responsibility. “

19. In view of what has been stated it is therefore most

respectfully prayed that this Honourable Authority be

pleased to direct the respondent as under:

i. It is most respectfully prayed that this Hon’ble Authority

be pleased to order the Respondent to pay the entire

 amount of interest due to the Complainants with effect

from the committed date of possession as per the Buyer’s

Agreement to the actual delivery of possession, at the

simple rate of interest as per the guidelines laid in RERA,

2016.

ii. It is most respectfully prayed that this Hon’ble Authority

be pleased to order the Respondent to refund the

additional amount collected towards the maintenance

charges.

iii. This Honourable Authority may kindly pass any other

order / orders as may deem just and proper in the facts

and circumstances of the case.

COMPLAINANT

THROUGH

KOHLI &KOHLI LAW ASSOCIATES

COUNSEL(S) FOR THE COMPLAINANT
V 3/11, DLF PHASE III, GURUGRAM,
HARYANA
 ADVOCATE KULDEEP KUMAR KOHLI
D/383/79
+91-8860332404
[email protected]; [email protected]