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Judgment
A complaint was filed by Amit Dhawariya (herein after referred as the Complainant) on 23.12.2020 against M/s Antriksh Group seeking several reliefs in respect of an apartment booked by him in 2015 in a project name “Antriksh Urban Greek” located in L-Zone, Dwarka, Delhi promoted by M/s Antriksh Group. The reliefs sought by the Complainant include refund of the deposit with interest.
Brief facts of the case as mentioned by the Complainant in his application filed in Form ‘M’ before the Authority are that the Complainant had approached M/s Antriksh Group in the year 2015 for booking an apartment with a super area measuring 1100 sq. feet in their project “Antriksh Urban Greek” and paid a sum of Rs.15,80,000/- (Rupees Fifteen Lakh, EightyThousand only) in more than one installments. The application form for booking the apartment was signed and received by the Complainant on 23 September, 2015. As per the information of the Complainant the opposite party was not able to obtain any license and /or approval from the concerned authorities for constructing the subject project. The opposite party failed to deliver the apartment or refund the amount paid inspite several and successive efforts. The Complainant feels that he has been cheated and de-frauded by the opposite party, who has misappropriated the money and not offered possession of the apartment. As Respondent promoter did not refund the monies of the Complainant in spite of several requests, the Complainant is constrained to file the present complaint.
The complaint was filed before the Authority on 23 December, 2020. A notice was issued to the Complainant to appear before the Authority on 09 September, 2021 on which date, after hearing the Complainant, the Authority directed that a notice may be issued to the Respondents.
The Respondents submitted reply on 18 August, 2021. In this reply, the Respondents stated that the Complainant has filed this complaint to extort money from them. The Respondents further stated that since more than 1 year, the Complainant and Respondents have been trying to settle the issue amicably. Due to Covid-19 last year, the business of Respondents suffered tremendous and incalculable losses. The Respondents also stated that they do not intend to withhold any amount due to the Complainant.
The Respondents further stated that in NCR region, in 2015, they launched a project namely 'Antriksh Urban Greek' in which Complainant booked a unit. The booking was made out of his own free will and the Respondents had all good intentions to develop the project but due to some administrative reasons and govt. policy which were beyond their control. Respondents could not obtain the 'Land Transfer Certificate' which is prerequisite for developing the project. The Respondents realizing that the project is getting delayed, gave an option to the buyers to either stay invested in the project or opt for a refund.
The arguments made by both the parties were heard and they were directed to file their written submissions within two weeks. The matter was reserved for orders on 10 November, 2021.
On examination of documents filed by the Complainant and the Respondents, the following points emerged.
The Complainant submits and the Respondents admits that the project by the name ‘Antriksh Urban Greek’ was promoted by the Respondents in the year 2015;
The Complainant submits and the Respondents admit that the Complainant had booked an apartment in the said project and has paid a sum of Rs.15,80,000/- (Rupees fifteen lakh eighty thousand only) in various installments upto 22.03.2016.
The Complainant has claimed a refund of Rs. 10,45,000/- only and the Respondents in their reply dated 18th August, 2021 have agreed for refund of Rs. 10,45,000/- (Rs. Ten lakh forty five thousands only).
Complainant submits and the Respondents admit that there has been no progress at all in the matter of construction of the said project as the Respondents have not been able to obtain necessary approvals and sanctions from various authorities.
The Respondents claim that upon realizing that a delay in execution of the project was inevitable, they offered all such persons who had booked apartments in the project to either continue with the project till such time project was completed or opt for a refund. The Respondent claimed that the Complainant at the relevant point in time did not opt for the refund;
Both the Complainant and the Respondents have furnished, along-with their submissions, copies of blank application forms, bank MoU and details relating to the transactions. Clause 20 of the terms and conditions, as laid down on the application form, stipulates that if the NOC/sanction plans for commencement of construction of the said Housing Complex are not obtained by the Respondents within three years from the date of the application then the Respondents shall be liable to the refund of amounts received with an interest @6.99% p.a.
The Respondents claim that they accepted cheque payments from the Complainant against receipts and they are amenable to settling the case as per their terms and conditions agreed at the time of booking.
In addition to the above points covering the present dispute between the Complainant and the Respondents which is under consideration of the Authority, two more issues emerged that merit consideration; namely, i) whether the Respondents are in violation of the provisions of the Real Estate (Regulation and Development) Act, 2016 by not registering, within the prescribed time frame the said project 'Antriksh Urban Greek' as an ongoing project as the said project was admittedly promoted in the year 2015 and was not complete as on 01 May, 2017, the date on which Real Estate (Regulation & Development) Act 2016 come into force. ii) whether by the alleged publication of an advertisement on its website and/or elsewhere in respect of its project 'Antriksh Urban Greek' the Respondents are in violation of the provisions of the Real Estate (Regulation & Development) Act 2016 by providing inaccurate information and inapplicable registration number granted by UP RERA for another project, thus misleading the prospective home buyers.
The Hon'ble Supreme Court in its judgment delivered in Civil Appeal No. 6745-6749 of 2021 on 11 November, 2021 has, inter alia, held that the Regulatory Authority has exclusive jurisdiction to direct refund of the amount deposited and interest on such amount, or directing payment of interest for delayed delivery of possession, or penalty and interest thereon, to the allottee; whereas the adjudication for determining compensation and interest thereon is with the adjudicating authority.
Citing Imperial Structures Ltd. v. Anil Patni and Another (2020) 10 SCC 783, the Supreme Court held that Section 18 entitles the allottee to get refund of the amount on the promoter's failure to handover possession as per the terms of the home buyer's agreement and since there is next to no scope for exercising discretion in this regard, issues of refund can be dealt with by the regulator even within their limited scope of scrutiny.
The Hon'ble Supreme Court has further held that;
"77...The submission has no foundation for the reason that the legislative intention and mandate is clear that Section 18(1) is an indefeasible right of the allottee to get a return of the amount on demand if the promoter is unable to handover possession in terms of the agreement for sale or failed to complete the project by the date specified and the justification which the promoter wants to tender as his defence as to why the withdrawal of the amount under the scheme of the Act may not be justified appears to be insignificant and the regulatory authority with summary nature of scrutiny of undisputed facts may determine the refund of the amount which the allottee has deposited, while seeking withdrawal from the project, with interest, that too has been prescribed under the Act, as in the instant case, the State of Uttar Pradesh has prescribed MCLR + 1% leaving no discretion to the authority and can also claim compensation as per the procedure prescribed under Section 71(3) read with Section 72 of the Act."
In view of the above facts we have no hesitation to hold that the Complainant is entitled to a refund of Rs.10,45,000/- (Rupees Ten lakh forty five thousand only) deposited by him, along-with interest @9 % p.a. (MCLR + 2%) in accordance with the terms and conditions referred to both by the Complainant and the Respondents. The Respondents have directed to pay the above amount and interest from the date of receipt of each such amount until the date of full payment to the Complainant within a period of 45 days of this order.
Ordered accordingly.
No orders as to cost. forty five thousand only) deposited by him, along-with interest @9 % p.a. (MCLR + 2%) in accordance with the terms and conditions referred to both by the Complainant and the Respondents. The Respondents have directed to pay the above amount and interest from the date of receipt of each such amount until the date of full payment to the Complainant within a period of 45 days of this order.
Ordered accordingly.
No orders as to cost.