M/s Brilliant Etoile Private Limited vs Anita Yadav & Anr.

I. Complaint No. 26/12/2023 titled M/s Brilliant Etoile Private Limited versus Anita Yadav & Puja Singh Sangwan.

II. Complaint No. 19/12/2023 titled M/s Brilliant Etoile Private Limited versus Rajesh Bhardwaj & Sandeep Bhardwaj.

III. Complaint No. 11/05/2024 titled Rajesh Bhardwaj & Anr. versus M/s Brilliant Etoile Private Limited & Ors.

I. M/s Brilliant Etoile Pvt. Ltd.- the Promoter of the project;

II. Ms. Anita Yadav- one of the allottees of Apartment A-1501;

III. Ms. Puja Singh Sangwan- one of the allottees of Apartment A-1501. She is also an authorized real estate agent/channel partner of the promoter/developer. She is also registered with RERA, Delhi as real estate agent having Registration No. DLRERA2020A0072;

IV. Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj - they purchased Apartment A-1501 from original allottees Ms. Anita Yadav and Ms. Puja Singh Sangwan and requested the Promoter for transfer of the said apartment in their name. The promoter agreed to transfer the said apartment in their name but later allotted them a new Apartment A-902, and

V. M/s Uppal Housing Pvt. Ltd.- the landowner of the real estate project developed by promoter M/s Brilliant Etoile Pvt. Ltd.

I. The Promoter averred that Respondents Ms. Anita Yadav and Ms. Puja Singh Sangwan booked an Apartment bearing number 1501 on 14th Floor in Tower A in the said project (referred as A-1501 hereinafter) vide application dated 30.09.2020. The promoter allotted them the said Apartment A-1501 on 30.09.2020 for a total consideration of Rs. 7,30,64,403/-. and executed an Agreement for Sale on 15.02.2021.

II. The Respondents opted for 10:90 payment plan wherein the Respondents were to make payment of 10% of the cost of the apartment at the time of booking and 90% of the cost of the apartment at the time of completion (i.e. on making application to the Competent Authority for grant of Occupancy-cum-Completion Certificate). According to the Promoter, the Respondents made a payment of Rs. 71,75,379/- (i.e. 10% amount) in due course but failed to make the payment of balance of Rs. 6,39,03,555/- i.e. remaining 90% amount.

III. The Promoter averred that it issued demand notices seeking payment of the outstanding balance, but the Respondents failed to pay the same. Consequently, the Promoter issued a pre-termination notice on 13.09.2023 and, thereafter, a termination letter dated 06.10.2023 under Section 11(5) of the RE(RD) Act, 2016, cancelling the allotment and forfeiting the amounts paid.

IV. The Promoter further averred that Ms. Puja Singh Sangwan executed an MOU with a third party (Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj) for transfer of the apartment A-1501 allotted to her in favor of the said third party without any authority for such transfer and without knowledge or consent of the Promoter. The Promoter further submitted that the entire transaction regarding Apartment A-1501 was fraudulently orchestrated by the Respondents in conspiracy with each other and with the third party. The Promoter also stated that the affidavits filed during police investigation revealed that Ms. Sangwan had fabricated signatures of co-allottee Ms. Anita Yadav in various documents.

I. To direct Sub-Registrar to cancel the Agreement for Sale dated 15.02.2021 executed between the Promoter M/s Brilliant Etoile and the allottee Ms. Anita Yadav and Ms. Puja Singh Sangwan.

II. To direct the Respondents Ms. Anita Yadav and Ms. Puja Singh Sangwan to execute a cancellation deed and handover the original documents.

I. The Respondents booked a residential Apartment bearing no. 1501, 14th Floor, Tower A in a project being developed by the Complainant. Respondents paid a sum of Rs.10,42,500/- (Ten Lakh Forty-Two Thousand Five Hundred) as the booking amount. Agreement for Sale was entered into between the parties on 15.02.2021, outlining the terms and conditions of the allotment.

II. The Complainant M/s Brilliant Etoile Pvt. Ltd. raised the next demand (of Rs. 6,39,03,555/-) in the name of Respondents Ms. Anita Yadav and Ms. Puja Singh Sangwan. Respondents could not arrange sufficient fund for payment of said next demand. As per clause 15.1 of the Agreement to Sell, the Promoter could not have accepted payments from the third party. Therefore, the Respondents approached the Complainant/Promoter to permit transfer of the apartment to a third party. The Complainant/Promoter orally agreed to transfer the said unit in the name of third party and accept the payments from the third party.

III. On such assurance from the Complainant/Promoter the Respondents contacted and persuaded a third party namely Shri Rajesh Bhardwaj and Shri Sandeep Bhardwaj to purchase the said Apartment A-1501 from Respondents and get it transferred in their names. As Ms. Anita Yadav and Ms. Puja Singh Sangwan had already paid an amount of Rs. 10,42,500/- to promoter M/s Brilliant Etoile, Shri Rajesh Bhardwaj and Shri Sandeep Bhardwaj paid Rs. 10,42,500/- to the Respondents Ms. Anita Yadav and Ms. Puja Singh Sangwan and entered into an agreement with them for purchase/transfer of the said apartment.

IV. The Respondents, Ms. Anita Yadav and Ms. Puja Singh Sangwan along with Sh. Rajesh Bhardwaj, approached the Complainant for transfer of the apartment in favor of Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj so that the outstanding and future demands can be paid by Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj. The Complainant advised them that the demand may be paid by Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj through demand draft and the same would be accepted by the Complainant after transfer of the unit in the name of Shri Rajesh Bhardwaj and Sh. Sandeep Bhardwaj after the name of original allottees were changed from Ms. Anita Yadav and Ms. Puja Singh Sangwan to Sh. Rajesh Bhardwaj.

V. Respondents stated that relying upon assurance from the Complainant, and acting in good faith Sh. Rajesh Bhardwaj issued three demand drafts in the name of the Complainant toward unpaid installment for apartment A-1501 and for its transfer in their names. The Complainant accepted the same and credited them to Complainant’s bank account.

VI. However, subsequently, even though the payments were made by Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj, the Complainant issued receipt for the said payments in the name of Ms. Anita Yadav and Ms. Puja Singh Sangwan. The receipt of payments were not issued in favor of Shri Rajesh Bhardwaj and Sh. Sandeep Bhardwaj. The apartment was also not transferred in the name of Shri Rajesh Bhardwaj and Sh. Sandeep Bhardwaj.

VII. The Respondents pointed out the said fact to the Complainant. The Complainant again assured that allotment would be transferred in name of Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj and all future demands would be raised in the name of Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj.

VIII. The next demand was to be raised by the Complainant/Promoter at the time of application for O.C. However, after making an application for O.C. the Complainant again raised the demand in the name of Ms. Anita Yadav and Ms. Puja Singh Sangwan. The demand was not raised in the name of Shri Rajesh Bhardwaj and Shri Sandeep Bhardwaj.

IX. Ms. Anita Yadav and Ms. Puja Singh Sangwan did not pay the demand raised by the Complainant on application for O.C. because the Respondents had already sold the apartment A-1501 to Shri Rajesh Bhardwaj and Shri Sandeep Bhardwaj on the assurance of the Complainant and had ceased to have any interest in the unit.

X. As a result, the Complainant cancelled allotment of the said unit A-1501 on the grounds that the Respondents Ms. Anita Yadav and Ms. Puja Singh Sangwan had failed to make the payments in accordance with the payment schedule. Respondents have further submitted that Shri Rajesh Bhardwaj continues to be interested in the property and have already made substantial payment to the Complainant on the assurance of the Complainant himself that unit would be transferred to Shri Rajesh Bhardwaj.

XI. The Respondents have asserted that the Promoter has deliberately suppressed material facts. Respondents have invoked the doctrine of estoppel submitting that the Promoter cannot accept payments from third party with assurances to transfer the unit to third party, but later refuse to transfer and cancel the allotment claiming non-payment by the original allottees.

I. The Respondents (Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj) are neither genuine home buyers nor end-users, but are investors who booked two apartments (A-802 and A-902) with the sole intention of reaping undue profits through speculative trading. The Promoter averred that the Respondents had invested less than 10% of the total cost of the units and planned to sell them before issuance of the Occupancy Certificate with intention to make unreasonable profits at the Promoter's expense.

II. The Respondent Shri Rajesh Bhardwaj and Shri Sandeep Bhardwaj, vide their application dated 03.09.2021, applied for a residential apartment in the real estate project being developed by the Complainant opting for a 10:90 payment plan wherein the Respondents had to pay 10% of the cost of unit at the time of booking and 90% of the cost at the time of making an application to the Competent Authority for issuance of Occupancy-cum-Completion Certificate.

III. The Complainant, vide allotment letter dated 03.09.2021 allotted Apartment no. 902, 9th Floor, Tower-A (referred as A-902 hereinafter) to the Respondents with three covered parking space for cars. The sale consideration was Rs.7,40,00,000/-only. The Complainant and Respondents entered into an Agreement for Sale dated 16.03.2022 setting out the terms and conditions of such allotment.

IV. The Respondents paid a sum of Rs.10,40,000/- as booking amount. It was agreed between the parties that Respondents will pay the remaining price of the apartment as per schedule of payment annexed with Agreement for Sale.

V. The Complainant applied for Occupancy-cum-Completion Certificate on 02.06.2023 and raised a demand to the Respondents for making the balance payment.

VI. However, the Respondents failed to deposit the outstanding demand of Rs. 7,12,81,026/- despite repeated reminders. Therefore, the Complainant terminated the allotment on 06.10.2023 for violation of terms and conditions of the Agreement to Sell.

VII. Thereafter, the Complainant requested concerned Sub-Registrar for cancellation of registered Agreement to Sell dated 16.03.2022. However, the Sub-Registrar has refused to do so in absence of any order of this Authority to the said effect.

VIII. The Complainant has therefore, made the following prayers:

i To direct Sub-Registrar to cancel the Agreement for Sale dated 16.03.2022 executed between the Promoter/Complainant M/s Brilliant Etoile and Respondents Shri Rajesh Bhardwaj and Shri Sandeep Bhardwaj.

ii To direct the Respondents Shri Rajesh Bhardwaj and Shri Sandeep Bhardwaj to execute a cancellation deed and handover the original documents.

I. That the issues raised by the Complainant in the present complaint (No.19/12/2023) have already been clarified by the Respondents in their separate complaint filed before the Authority on 28.04.2024 bearing number 11/05/2024 titled Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj versus M/s Brilliant Etoile and others which is pending for adjudication.

II. That the Respondents Shri Rajesh Bhardwaj and Shri Sadeep Bhardwaj were approached by the authorized agent of the Complainant Ms. Puja Singh Sangwan who portrayed a colourful picture of the project assuring world class facilities and amenities in the project. The authorized agent further informed that one unit, with one EWS quarter and four covered car parking spaces, has been allotted in the joint names of Ms. Anita Yadav and Ms. Puja Singh Sangwan (herself). Agreement to Sell dated 15.02.2021 has been also executed between her and the Complainant.

III. The authorized agent further stated that initial allottees were facing financial constraint and were willing to transfer their allotment rights in the said unit at the cost price of Rs.7,11,00,000/-. She assured that the said unit would be transferred in the name of the Respondents and requisite documents would be executed.

IV. As the Respondents had concerns over transfer of the said unit, the authorized agent persuaded them to meet the representatives of the Complainant namely Mr. Amit Tiwari and one of the directors namely Mr. Peng Qing Jonathan. When the Respondents met the said representatives of the Complainant, the representatives assured that in case Respondents purchase the said apartment from initial allottees Ms. Anita Yadav and Ms. Puja Singh Sangwan, and execute requisite documents with the initial allottees, then the allotment will be transferred in favor of the Respondents and till such transfer takes place the Complainant would accept third party payment from Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj.

V. The initial allottees Ms. Anita Yadav and Ms. Puja Singh Sangwan had already paid an amount of Rs. 10,42,500/- to the Complainant. Therefore, the Respondents made a payment of Rs.10,42,500/- to the initial allottees Ms. Anita Yadav and Ms. Puja Singh Sangwan and entered a Memorandum of Understanding/Agreement dated 01.03.2021 with them.

VI. The Respondents made a further payment of Rs.61,32,879/- to the Complainant by Demand Drafts as per following details:

VII. However, even after receiving payments from the Respondents towards erstwhile unit A-1501 the Complainant did not issue receipts in favor of the Respondents nor transferred the unit in their favor. The receipts for payments made by the Respondents were issued in favor of initial allottees Ms. Anita Yadav and Ms. Puja Singh Sangwan ignoring request of the Respondents.

VIII. Later, the Complainant informed the Respondents that they have stopped the process of transferring the old booked units in name of new allottees. The Complainant further informed the Respondents that higher management has now decided to allot a new unit to the Respondents. The new unit will have the similar area, amenities, facilities and additional benefits as provided in the erstwhile unit. The Complainant also refused to refund the payments made by the Respondents towards erstwhile unit A-1501 but assured that the payments made by the Respondents in respect of unit A-1501 shall be adjusted towards the new unit and a separate Agreement to Sell shall be executed with the Respondents in respect of new unit.

IX. Because the Respondents had already paid substantial amount to the Complainant till now, and because the Complainant had refused to refund the money but had shown willingness to adjust the payments made for unit A-1501 shall be adjusted towards new unit, the Respondents had no option but to agree to accept the new unit.

X. Therefore, the Respondents agreed to accept the new unit paid Rs. 10,40,000/- to the Complainants towards booking amount as demanded by the Complainant. The Complainant allotted a new unit/apartment bearing no. 902, 9th Floor, Tower-A (referred to as A-902 hereinafter) to the Respondents on 10:90 payment plan on 03.09.2021. The Agreement to Sell was executed between the Complainant and the Respondents on 06.03.2022.

XI. However, the Complainant failed to adjust the amount of Rs. 61,32,879/- paid by the Respondents for the erstwhile unit A-1501 towards new unit A-902. The Respondents also realised that new unit A-902 had smaller area and higher sale price than previously provided unit A-1501, and had only three parking spaces with it and did not have EWS quarter.

XII. Accordingly, Respondents filed an FIR no. 684 of 2023 under Section 420, 406, 467, 468, 471, 506 and 120-B of the Indian Penal Court, 1908 against the Complainant.

XIII. Subsequently, the Complainant issued demand notices for payment of remaining 90% amount and pre-termination notice on 19.03.2023.

XIV. The Respondents did not respond to said notices because the same were issued in contravention and violations of agreed terms and conditions between the Complainant and the Respondents.

XV. The Complainants terminated the allotment on 06.10.2023.

XVI. The Respondents have alleged that the Complainant have indulged in fraudulent practices to misappropriate the hard earned money of the Respondents and have violated the assurances given by them to the Respondents for their personal gains.

XVII. The Respondents have further argued that the remedy prayed for by the Complainant for direction to the Sub-Registrar, Hauz Khas, New Delhi for cancellation of Registered Agreement to Sell dated 16.03.2022 does not fall within the purview of the Real Estate (Regulation and Development) Act, 2016. There are no provisions under the RE(RD) Act, 2016 empowering this Hon’ble Authority to give directions to the Sub-Registrar, Hauz Khas, New Delhi for cancellation of Registered Agreement to Sell. Such directions to the Sub-Registrar can be sought only through a suit in a Civil Court under the relevant provisions of the Specific Relief Act. The Respondents have further submitted that Section 79 of the RERA Act bars the jurisdiction of a Civil Court only in respect of a matter which the Authority or the Adjudicating Officer or the Appellate Tribunal is empowered under this Act to determine.

I. The Complainants asserted that they were looking to purchase a residential property for their own use in January 2021 when they were approached by Ms. Puja Singh Sangwan (the real estate agent of the promoter) who portrayed a very attractive picture of the Sky Mansion project with world-class facilities and amenities. On the insistence of the sales consultant, the Complainants met the representatives of the Promoter, including Mr. Amit Tiwari and Mr. Peng Qing Jonathan (a Director of the Promoter), who assured them that the allotment would be done in the name of the Complainants swiftly after proper documentation.

II. The Complainants averred that during the meeting with the Promoter's representatives, they were induced and lured to opt for a 10:90 payment scheme whereby they would pay only 10% of the cost of the apartment at the time of booking with the remaining 90% cost at the time of possession.

III. The Complainants averred that they discovered that Clause 1.15 of the Memorandum of Understanding explicitly prohibited acceptance of third-party payments. The Complainants further stated that when they pointed out that the erstwhile unit (A-1501) was already allotted in the names of other allottees (Ms. Anita Yadav and Ms. Puja Singh Sangwan) and raised concerns that accepting third-party payments would be illegal, the Promoter's representatives assured them that they had obtained all necessary approvals from requisite authorities and that accepting third-party payments was within their guidelines.

IV. Based on these assurances and representations, the Complainants agreed to proceed and purchase unit A-1501 from the initial allottees Ms. Anita Yadav and Ms. Puja Singh Sangwan made an initial payment of Rs. 10,42,500/- to initial allottee Ms. Puja Singh Sangwan followed by additional payments totalling to Rs. 61,75,379/- towards the erstwhile Unit A-1501. The Promoter accepted payments from the Complainants.

V. The Complainants alleged that after making substantial payments towards A-1501, the representatives of the Promoter informed them that they could not transfer the erstwhile unit A-1501 in the name of the Complainants due to some internal policy, but that the higher management had unilaterally decided to allot them a new unit (A-902) with similar amenities and facilities. The Complainants averred that the Promoters assured them that all payments made towards the erstwhile unit A-1501 would be adjusted against the new unit A-902 and that the new unit would have four covered car parking spaces and an EWS quarter as the erstwhile unit had.

VI. The Complainants asserted that since they had already paid substantial amounts towards unit A-1501 but the Promoter had refused to either transfer A-1501 in the name of the Complainants or refund the amount paid, they reluctantly agreed to purchase new unit A-902. They executed an Agreement for Sale dated 16.03.2022 for allotment of apartment A-902 in their name for a total consideration of Rs. 7,40,00,000/-.

VII. The Complainants further averred that upon subsequent scrutiny, they realized that the new unit did not have the promised EWS quarter and had only 3 covered car parking spaces instead of 4 and that they had been defrauded.

VIII. The Complainants further averred that they attempted to follow up with the Promoter regarding these discrepancies, but the Promoter chose not to address their queries. They sent an email dated 23.06.2023 but there was no response.

IX. The Complainants stated that upon further investigation, they discovered that the Promoter and the sales consultant are habitual offenders who have defrauded many innocent persons, leading them to lodge FIR No. 684 of 2023 against the Promoter and its officials at Police Station Kavi Nagar, Ghaziabad, under Sections 420, 406, 467, 468, 471, 506, and 120-B of the Indian Penal Code.

X. Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj have also averred that the same set of circumstances and fraudulent conduct of the promoter took place in a separate transaction relating to the purchase of apartment A-802 and A-1601 for which they have filed a separate complaint.

XI. In view of all above, the Complainants have made the following prayers:

i Refund of the entire amount paid (Rs. 82,15,379/-) along with interest at 10.50% per annum invoking Section 12 read with Section 19 of the RERA Act, because the Promoter has violated its obligations regarding the veracity of prospectus and representations.

ii Compensation of Rs. 5,00,000/- (Rupees Five Lakhs only) for mental agony caused to the Complainants by the Respondents.

iii To pay a sum of Rs.2,00,000/- (Rupees Two Lakhs only) towards litigation costs.

I. The Promoter submitted that the Complainants are not genuine home buyers but investors, and that the agreement and all terms were clearly explained and consciously executed by the Complainants themselves. The Promoter denied making any false representations about amenities or accepting third-party payments with knowledge, and submits that it always acted in good faith, discovering the irregular third-party payments only when the Complainants later revealed this information.

II. The Promoter further submitted that Ms. Puja Singh Sangwan, despite being registered with RERA and engaged as a sales consultant, violated the Channel Partner Agreement by facilitating unauthorized inter-party transfers and accepting commissions through fraudulent means. The Promoter produced detailed evidence showing the sequence of payments, refunds, and commissions paid to understand the conspiracy.

I. Whether the termination of allotment of Apartment A-1501 in favour of Ms. Anita Yadav and Ms. Puja Singh Sangwan vide Termination Notice dated 06.10.2023 is valid and legally sustainable.

II. Whether the termination of allotment of Apartment A-902 in favour of Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj vide Termination Notice dated 06.10.2023 is valid and legally sustainable.

III. Whether request of Promoter M/s Brilliant Etoile Pvt. Ltd. for direction to Sub-Registrar for cancelling of Agreement for Sale is justified.

IV. What relief, if any, can be granted to the parties in the three interconnected complaints?

I. M/s Brilliant Etoile, vide their Termination Notice dated 06.10.2023 have cancelled the allotment of Unit A-1501 allotted to Ms. Anita Yadav and Ms. Anita Yadav and Ms. Puja Singh Sangwan. The first issue to be examined by the Authority is whether termination of allotment of Apartment No. A-1501 made in name of Ms. Anita Yadav and Ms. Puja Singh Sangwan is valid or not.

II. M/s Brilliant Etoile has stated that Apartment No. A-1501 was allotted in the name of Ms. Anita Yadav and Ms. Puja Singh Sangwan on 30.09.2020 for a total sale consideration of Rs. 7,30,64,408/-. The allottees made a payment of Rs. 71,75,379/- (10% amount) but failed to make the payment of Rs. 6,39,03,555/-(remaining 90% amount) despite issue of demand notice, reminders and pre-termination notice. Therefore, they cancelled the allotment and forfeited the amounts paid.

III. In response Ms. Anita Yadav and Ms. Puja Singh Sangwan have stated that they paid Rs. 10,42,500/- as application money/initial booking amount. Subsequently, they approached M/s Brilliant Etoile to permit them to transfer the unit to a third party and to accept remaining amounts from the said third party. The Promoter agreed to transfer the unit to third party and to accept remaining amounts from such third party.

IV. Thereafter, Ms. Anita Yadav and Ms. Puja Singh Sangwan contacted a third-party Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj and persuaded them to purchase unit A-1501 from them, get it transferred in their own name and make the balance payment towards cost of the unit directly to M/s Brilliant Etoile. The third party Mr. Rajesh Bhardwaj also met representatives of M/s Brilliant Etoile Pvt. Ltd. Mr. Amit Tiwari and Director Mr. Peng Quing Jonathan, who also assured that the unit would be transferred in the name of third party and remaining payments shall be accepted from the third party.

V. Ms. Anita Yadav and Ms. Puja Singh Sangwan have further stated that Sh. Rajesh Bhardwaj paid her the amount she had paid to M/s Brilliant Etoile as application money/initial booking amount. Thereafter, she sold the unit to Sh. Rajesh Bhardwaj through an Agreement as per which the remaining amount was to be paid by Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj directly to M/s Brilliant Etoile. Sh. Rajesh Bhardwaj paid the next demand of Rs. 61,32,879/- to M/s Brilliant Etoile through Demand Drafts. The demand drafts were accepted by M/s Brilliant Etoile and encashed through their bank account in line with the verbal assurance given by M/s Brilliant Etoile to Ms. Anita Yadav and Ms. Puja Singh Sangwan and also to Sh. Rajesh Bhardwaj.

VI. She has further stated that the demand for 90% of the cost should have been raised in the name of Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj. However, M/s Brilliant Etoile raised the demand for remaining 90% amount in the name of Ms. Anita Yadav and Ms. Puja Singh Sangwan. She did not pay the demand of 90% amount raised in her name because, after due assurance from M/s Brilliant Etoile she had already sold the unit A-1501 to Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj and had exited from the allotted unit.

VII. She further stated that M/s Brilliant Etoile has erred seriously in issuing Cancellation Letter in her name because after having sold her apartment to Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj, that too after express assurance from M/s Brilliant Etoile, she was not in picture at all.

VIII. It may further be seen that Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj have also affirmed the above averments of Ms. Anita Yadav and Ms. Puja Singh Sangwan. Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj have stated that they agreed to purchase apartment A-1501 from Ms. Anita Yadav and Ms. Puja Singh Sangwan only after they met Director of M/s Brilliant Etoile namely Mr. Ping Quing Jonathan and Sh. Amit Tiwari who assured them that the unit will be transferred in their name and outstanding payments/demands would be accepted from Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj.

IX. Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj further stated that they paid Rs. 10,42,500/- to Ms. Puja Singh Sangwan towards the initial payment she made for booking the Apartment. Subsequently, they paid Rs. 61,32,879/- to M/s Brilliant Etoile through Demand Drafts who accepted the same and encashed it in their bank account. However, M/s Brilliant Etoile later refused to transfer Apartment No. A-1501 in favour of Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj.

X. It may be noted that Ms. Puja Singh Sangwan had initially paid Rs. 10,42,500/-towards application money/initial booking amount. Second demand of Rs. 61,32,879/- was to be paid within 45 days of paying application money. However, M/s Brilliant Etoile did not raise the demand of Rs. 61,32,879/- against Ms. Anita Yadav and Ms. Puja Singh Sangwan within 45 days nor initiated any action against Ms. Anita Yadav and Ms. Puja Singh Sangwan when they failed to pay the demand after 45 days.

XI. M/s Brilliant Etoile have not explained why the demand of Rs. 61,32,879/- was not raised to Ms. Anita Yadav and Ms. Puja Singh Sangwan after 45 days.

XII. Records further show that Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj paid an amount of Rs. Rs. 61,32,879/- through three Demand Drafts much after expiry of 45 days even though no such demand was raised against their name.

XIII. These demand drafts were encashed by M/s Brilliant Etoile in their bank account.

XIV. Records further show that the demand drafts submitted by Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj clearly mentioned that the demand drafts were made by Sh. Rajesh Bhardwaj. While accepting the said demand drafts M/s Brilliant Etoile were in knowledge that the demand drafts were not submitted by Ms. Anita Yadav and Ms. Puja Singh Sangwan but were submitted by third party Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj.

XV. This fact goes to show that M/s Brilliant Etoile had assured the initial allottee as well as the third party that they would transfer the flat Apartment A-1501 in favor of the third party and would accept the payment from third party. That is why no demand was raised against Ms. Anita Yadav and Ms. Puja Singh Sangwan and no action was taken against her for non-payment within prescribed time.

XVI. It may further be mentioned that as per Clause 11.1 of the Agreement to Sell executed between M/s Brilliant Etoile and Ms. Anita Yadav and Ms. Puja Singh Sangwan, it was permissible to transfer the allotted unit from original allottee to a third party after obtaining prior permission from Developer. It appears that on the basis of this provision, M/s Brilliant Etoile had assured the original allottee Ms. Anita Yadav and Ms. Puja Singh Sangwan, and subsequently to the third party Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj, that the Apartment No. A-1501, allotted to Ms. Anita Yadav and Ms. Puja Singh Sangwan shall be transferred to Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj.

XVII. Records also show that after Sh. Rajesh Bhardwaj made a payment 9.9% amount i.e. Rs. 61,32,879/-, the Promoter M/s Brilliant Etoile paid a commission of Rs. 55,10,000/- to Ms. Puja Singh Sangwan, their channel partner and authorized real estate agent for unit A-1501. Such commission of Rs. 55,10,000/- could not have been made to an allottee. Such commission could have been paid to Ms. Puja Singh Sangwan only when she was a real estate broker of the Promoter. The payment of Rs. 55,10,000/- as commission to Ms. Puja Singh Sangwan for unit A-1501 clearly shows that company had treated Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj as an allottee and had treated Ms. Puja Singh Sangwan as channel partner/ real estate agent/broker.

XVIII. The Promoter M/s Brilliant Etoile, accepted 9.9% amount of Rs. 61,32,879/- from Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj. Therefore, as per Clause 11.1 of the Agreement to Sell, the Promoter was required to transfer Apartment No. A-1501 in the name of Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj. The demand for 90% of the amount on making application for Occupancy-cum-Completion Certificate should have been raised against Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj for payment.

XIX. Therefore, after making application for Occupancy-cum-Completion Certificate, raising a demand for 90% amount in the name of Ms. Anita Yadav and Ms. Puja Singh Sangwan is not justified by the promoter M/s Brilliant Etoile.

XX. As such raising 90% of the demand in the name of Ms. Anita Yadav and Ms. Puja Singh Sangwan and subsequent termination of allotment and forfeiting the amount deposited by the initial allottee (Ms. Anita Yadav and Ms. Puja Singh Sangwan) and third party (Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj) is also not justified.

XXI. The termination effected by the Promoter also fails on account of non-compliance with mandatory statutory requirements relating to the procedure for termination as provided in the Agreement for Sale executed between the parties due to following reasons:

XXII. (i) In the present case, Clause 9.1.4 of the Agreement for Sale dated 15.02.2021 executed between the Promoter and the original allottees reads as follows:

XXII (ii) In the present case, the record shows that the Promoter issued demand notice on 19.06.2023, followed by reminders on 07.07.2023, 24.07.2023, 10.08.2023, and 27.08.2023. Thereafter, the Promoter issued a Pre-Termination Notice dated 13.09.2023 giving only seven days’ notice for payment of outstanding dues. Subsequently, the Promoter issued the Termination Notice dated 06.10.2023, which is approximately 23 days after the Pre-Termination Notice dated 13.09.2023. The seven-day notice period provided in the Pre-Termination Notice falls woefully short of the mandatory thirty-day notice period prescribed in Clause 9.3(ii) of the prescribed form in the NCTD, Real Estate (Regulation and Development) (Agreement for Sale) Rules 2016. The use of the word “shall” in the proviso leaves no room for doubt that the thirty-day notice is mandatory and must be strictly complied with. This constitutes a clear and fatal violation of the statutory requirement.

XXII.(iii)The thirty-day notice period is a protective provision enacted to safeguard the interests of allottees. It provides allottees with a reasonable opportunity to cure the default and prevent cancellation of allotment. The period of thirty days is designed to give the allottee sufficient time to arrange finances, make payments, and regularize their position.

XXII.(iv)The Promoter’s argument that it issued multiple demand notices over a period of several months and that the allottees had sufficient opportunity to make payment does not cure the defect of non-compliance with the mandatory thirty-days pre-termination notice.

XXII.(v)Further, as per Clause 9.1.4 of the Agreement to Sell dated 05.02.2021, the promoter was required to terminate the allotment on failure of the allottee to pay at least two consecutive demands. In the instant case, the promoter has terminated the allotment on the default of the allottee to pay one demand only. On this ground also, the termination of unit A-1501 is found to be illegal and unsustainable.

XXII.(vi)For all the reasons set out above, this Authority holds that the Termination Notice dated 06.10.2023 issued by the Promoter cancelling the allotment of apartment A-1501 in favour of Ms. Anita Yadav and Ms. Puja Singh Sangwan is invalid, illegal, and legally unsustainable.

XXII.(vii) Therefore, issue No. 1 is decided in negative. It is held that the termination of allotment of Apartment A-1501 in favour of Ms. Anita Yadav and Ms. Puja Singh Sangwan is illegal and invalid.

I. This Authority must now examine the validity of the Termination Notice dated 06.10.2023 issued by the Promoter cancelling the allotment of apartment A-902 in favour of Rajesh Bhardwaj and Sandeep Bhardwaj. The analysis of this issue is inextricably linked to the factual matrix established in the earlier paragraphs and the findings recorded in relation to Issue No. 1.

II. The undisputed factual position is that Rajesh Bhardwaj made payments aggregating Rs. 61,32,879/- through demand drafts during April-May 2021 towards the erstwhile apartment A-1501, which was originally booked in the names of Ms. Anita Yadav and Ms. Puja Singh Sangwan. These payments, when added to the initial payment of Rs. 10,42,500/- made by the original allottees, brought the total payments received by the Promoter against apartment A-1501 to Rs. 71,75,379/-. The Promoter accepted these payments, processed them, deposited them in his bank account and paid commission to the sales consultant Ms. Puja Singh Sangwan based on these payments.

III. Subsequently, in June 2021, the Promoter informed Rajesh Bhardwaj and Sandeep Bhardwaj that it could not transfer apartment A-1501 in their names due to internal policy constraints. However, the Promoter proposed to allot a new apartment A-902 to them and gave categorical assurances that all payments made towards the erstwhile unit A-1501 would be adjusted and credited towards the purchase price of the new apartment A-902. The Promoter further assured that the new apartment would have similar amenities and facilities as the erstwhile apartment, including an EWS quarter and four covered car parking spaces.

IV. On 03.09.2021, apartment A-902 was formally allotted to Rajesh Bhardwaj and Sandeep Bhardwaj. An Agreement for Sale for apartment A-902 was executed on 16.03.2022 with a total consideration of Rs. 7,40,00,000/-. At the time of booking of apartment A-902, Rajesh Bhardwaj and Sandeep Bhardwaj made an additional payment of Rs. 10,40,000/-. Therefore, the total payments made by or on behalf of Rajesh Bhardwaj and Sandeep Bhardwaj across both apartments (A-1501 and A-902) aggregate Rs. 82,17,879/- (comprising Rs. 61,32,879/- towards A-1501, Rs. 10,42,500/- by original allottees towards A-1501, and Rs. 10,40,000/- towards A-902.

V. The Promoter’s conduct subsequent to the allotment of apartment A-902 is of critical importance in determining the validity of the termination. The payment schedule for apartment A-902 would have required the allottees to make intermediate payments at various construction milestones in accordance with the Payment Plan annexed to the Agreement for Sale. However, the records establish that the Promoter did not raise any demand for intermediate payments in respect of apartment A-902 during the period from the execution of the Agreement for Sale on 16.03.2022 until the application for the Occupancy Certificate on 02.06.2023.

VI. The Promoter’s failure to raise demands for intermediate payment obligations is a matter of singular significance. The intermediate payment obligations would have constituted approximately 9.9% of the total consideration of Rs. 7,40,00,000/-, which would amount to approximately Rs. 73,26,000/-. The Promoter did not raise any demand for this intermediate payment. Instead, upon application for the Occupancy Certificate on 02.06.2023, the Promoter directly raised a combined demand for the entire outstanding balance of the purchase price.

VII. This conduct on the part of the Promoter can be explained only on one hypothesis: that the Promoter intended to adjust and credit the payments of Rs. 71,75,379/- made towards apartment A-1501 against the purchase price of apartment A-902. If the Promoter had not intended to make such adjustment, there would have been no reason for the Promoter to forgo raising demands for intermediate payments amounting to approximately Rs. 73,26,000/-. The Promoter’s selective non-enforcement of intermediate payment milestones, coupled with its bundled demand at the occupancy stage, demonstrates a pattern of conduct that can only be reasonably interpreted as an implicit acceptance of the adjustment of payments from apartment A-1501 to apartment A-902.

VIII. The Promoter’s conduct reveals a tacit acknowledgment that Rajesh Bhardwaj’s payments of Rs. 61,32,879/- towards apartment A-1501 were intended to be credited towards apartment A-902, thereby establishing an implicit agreement between the parties regarding the adjustment and transfer of payment obligations. Such conduct is wholly inconsistent with the Promoter’s subsequent assertion that it had no knowledge of the third-party payments or any understanding regarding the transfer of allotment. The Promoter cannot, on one hand, accept substantial payments from Rajesh Bhardwaj towards apartment A-1501, pay commission to the sales consultant on these payments, propose apartment A-902 as an alternative with assurance of adjustment of payments, waive demands for intermediate payments for apartment A-902, and then suddenly claim that Rajesh Bhardwaj and Sandeep Bhardwaj are in default of their payment obligations.

IX. The Promoter’s case is that it always intended that the payments made towards apartment A-1501 would be refunded to Rajesh Bhardwaj and that fresh payments would be required for apartment A-902. However, this assertion is belied by the Promoter’s own conduct. If the Promoter intended to refund the payments made towards apartment A-1501, it would have actually refunded those payments to Rajesh Bhardwaj at the time of allotting apartment A-902 or shortly thereafter. The record shows no such refund. On the contrary, the Promoter retained the entire amount of Rs. 71,75,379/- and did not raise intermediate payment demands for apartment A-902, clearly demonstrating its intention to adjust these payments against the new apartment.

X. Such conduct on the part of the Promoter amounts to unjust enrichment and constitutes a fraud on the allottees. The Promoter cannot be permitted to accept payments totaling Rs. 82,17,879/- (if one includes all payments made towards both apartments), fail to provide promised amenities, fail to adjust payments as assured, and then terminate the allotment claiming default in payment. To uphold such termination would be to give judicial sanction to a fraud and would violate the fundamental principles of equity and justice.

XI. Apart from the substantive grounds rendering the termination invalid, the termination of apartment A-902 also suffers from the same procedural and statutory infirmities as were found in relation to the termination of apartment A-1501. The Agreement for Sale dated 16.03.2022 executed for apartment A-902 is similarly not in the prescribed form as mandated by Rule 3(1) of the Agreement for Sale Rules. The Agreement does not incorporate the mandatory termination procedure prescribed in Clause 9.3(ii) of the prescribed form, and specifically does not incorporate the proviso requiring thirty days’ prior intimation before termination.

XII. As held in the analysis of Issue No. 1, the use of the word “shall” in Rule 3(1) makes compliance with the prescribed form mandatory. Promoters cannot execute agreements containing their own one-sided clauses in derogation of the prescribed form and then seek to rely on such clauses to terminate allotments. The Promoter, having failed to execute the Agreement for Sale in the prescribed form, cannot invoke the right to terminate the allotment. This is a fundamental principle that a party cannot take advantage of its own wrong.

XIII. Furthermore, even assuming that the mandatory provisions of the prescribed form apply by operation of law, the Promoter has failed to comply with the mandatory requirement of giving thirty days’ prior intimation before termination. As in the case of apartment A-1501, the Promoter issued a Pre-Termination Notice dated 13.09.2023 giving only seven days’ notice, and thereafter issued the Termination Notice dated 06.10.2023 approximately 23 days later. This falls short of the mandatory thirty-day notice period prescribed in the proviso to Clause 9.3(ii) of the prescribed form. The thirty-day notice is a statutory safeguard designed to protect allottees and provide them with a reasonable opportunity to cure defaults. Non-compliance with this mandatory requirement vitiates the termination.

XIV. Further, in this case also the promoter was required to terminate the allotment after two consecutive defaults by the Allottee. However, in this case also, the promoter has terminated the allotment on the first so called default of the allottee, without waiting for second default.

XV. Sh. Rajesh Bhardwaj in his reply to Complaint Number 19/12/2023 titled M/s Brilliant Etoile Pvt. Ltd. versus Sh. Rajesh Bhardwaj and Anr. has enclosed copy of the Order dated 19.02.2024 of Hon’ble Justice Sameer Jain of Allahabad High Court in “Criminal Miscellaneous Anticipatory Bail Application U/S 438 CRPC No. 13374 of 2023”, filed in FIR/Case Crime No. 684 of 2023, granting Anticipatory Bail to Applicant Mr. Peng Quing Jonathan involved in the said case crime number. The said FIR No. 684 of 2023 was made by Sh. Rajesh Bhardwaj against Sh. Peng Quing Jonathan, Director of Promoter M/s Brilliant Etoile Pvt. Ltd. and 5 others, including builder company Risland India Group, alleging that the Applicant (Mr. Peng Quing Jonathan), along with co-accused, duped more than one crore Rupees of informant (Sh. Sh. Rajesh Bhardwaj) by playing fraud under the garb of booking flats in the scheme of the Company of the Applicant.

XVI. Para 15 of the said order dated 19.02.2024 of Hon’ble Justice Sameer Jain is reproduced below:

XVII. Above submissions of Mr. Ping Quing Jonathan, Director of promoter M/s Brilliant Etoile Pvt. Ltd. before Hon’ble Allahabad High Court clearly shows that the promoter M/s Brilliant Etoile Pvt. Ltd. had accepted the amount of Rs. 61,32,879/- from Sh. Rajesh Bhardwaj for booking Apartment A-1501 and had promised to adjust the same against the payments due for new booking for flat Apartment A-902. Not adjusting the payments made by Sh. Rajesh Bhardwaj towards unit A-1501 for new allotted unit A-902 and treating him as defaulter leading to terminate of allotment is clear cut violation of legal canons and can not be justified.

XVIII. For all the reasons set out above, this Authority holds that the Termination Notice dated 06.10.2023 issued by the Promoter cancelling the allotment of apartment A-902 in favour of Rajesh Bhardwaj and Sandeep Bhardwaj is invalid, and legally unsustainable.

XIX. In view of all above, it is hereby held that the termination of Apartment No. 902 is not justified.

I. M/s Brilliant Etoile Pvt. Ltd. have made a prayer to issue directions to concerned Sub-registrar to cancel allotment of Agreement for Sale for Apartment A-1501 executed by Ms. Anita Yadav and Ms. Puja Singh Sangwan and Agreement to Sale for Apartment No. A-902 executed by Sh. Rajesh Bhardwaj and have further requested the Authority to issue directions to Ms. Anita Yadav and Ms. Puja Singh Sangwan and Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj to execute a cancellation deed with the Promoter.

II. Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj have submitted that the remedy prayed for by the complainant for direction to the Sub-Registrar, Hauz Khas, New Delhi for cancellation of Registered Agreement to Sale dated 16.03.2022 does not fall within the purview of the Real Estate (Regulation and Development) Act, 2016 and the falls outside the jurisdiction of the Hon’ble Authority. There are no provisions under the RERA Act empowering this hon’ble Authority to do the same. Direction to the Sub-Registrar, Hauz Khas, New Delhi for cancellation of Registered Agreement to Sale can only be sought through a suit in a Civil Court under the relevant provisions of the Specific Relief Act.

III. Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj have further submitted that Section 79 of the RERA Act does not bar the jurisdiction of the Civil Court as the same bars the jurisdiction of a Civil Court only in respect of a matter which the Authority or the Adjudicating Officer or the Appellate Tribunal is empowered under this Act to determine. The relevant section is reproduced hereinbelow for ready reference of this Hon’ble Authority.

IV. They have further submitted that the RERA Act does not bar the jurisdiction of the Civil Court due to the application of Section 88 of the RERA Act, which says that “The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force”. That in support of the submission made herein, it is pertinent to refer to the judgment of the Hon’ble Supreme Court titled as “Satya Pal Anand v. State of Madhya Pradesh”, [(2016) 10 SCC 767], decided on 26.10.2016, wherein the Hon’ble Supreme Court observed the following:

V. It is noted that the Agreement to Sell between Promoter M/s Brilliant Etoile Pvt. Ltd. and Ms. Anita Yadav and Ms. Puja Singh Sangwan and M/s Brilliant Etoile Pvt. Ltd. and Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj have been registered under the provisions of the Registration Act 1908. Such registration can be cancelled only under provisions of the Registration Act 1908. The provisions of RE(RD) Act 2016 also do not provide for cancellation of registered agreements or conveyance deeds. It may, therefore, be noted that once a document is registered with Sub-Registrar under Provision of the Registration Act 1908, it cannot be cancelled by Sub-Registrar because the provisions of the Registration Act 1908 do not authorized Sub-Registrar of cancel a registered document. As has been rightly pointed out by allottees Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj only a competent civil court under the relevant provisions of specific relief act can order cancellation of registered document.

VI. In any case, in previous sections, we have concluded that Agreement to Sell has been wrongly terminated by promoter M/s Brilliant Etoile Pvt. Ltd.

VII. For the above mentioned reasons, there is no need to order cancellation of Agreement to Sell executed between the parties.

I. In its findings on Issues No. 1 and 2 above, this Authority has already recorded that the terminations effected by the Promoter M/s Brilliant Etoile Private Limited in respect of both Apartment A-1501 and Apartment A-902 are invalid and legally unsustainable. This Authority must now determine the appropriate relief to be granted to the parties in the three complaints. The relief must be decided keeping in mind the established facts and circumstances, the conduct of the Promoter, the doctrine of promissory estoppel, and the overarching objective of the RE (RD) Act, 2016.

II. Section 18 of the RE(RD) Act, 2016, which is the central provision governing the rights of allottees in case of default by the Promoter, reads as under:

III. A plain reading of Section 18(1) of the Act makes manifest that the right conferred upon an allottee to seek refund with interest is unqualified and absolute. The legislature has employed the phrase “without prejudice to any other remedy available,” indicating that the right to refund under Section 18 of the Act is in addition to, and not in substitution of, any other legal remedy. The expression “he shall be liable on demand” further establishes that upon the allottee making a demand, the Promoter’s liability to refund with interest is automatic, mandatory, and admits of no exception or qualification.

IV. The scope and nature of this right under Section 18 has been expounded by the Hon’ble Supreme Court of India in M/s. Newtech Promoters and Developers Pvt. Ltd. v. State of U.P. & Ors. [Civil Appeal Nos. 6745–6749 of 2021, decided on 11.11.2021, reported as (2021) 18 SCC 642], wherein the Court held that Section 18 of the RE(RD) Act, 2016 confers an unqualified right upon the allottee to seek refund of the amount deposited with the Promoter along with interest at the prescribed rate in cases where the Promoter fails to complete or is unable to give possession as per the date specified in the Agreement for Sale.

V. Before proceeding to determine the relief, this Authority considers it necessary to record its findings regarding the fraudulent conduct of the Promoter M/s Brilliant Etoile Private Limited and the manner in which the doctrine of promissory estoppel operates against it in the present proceedings. The conduct of the Promoter, examined in its entirety across the three interconnected complaints, discloses a deliberate, calculated, and systemic pattern of fraud perpetrated upon all allottees.

VI. The doctrine of promissory estoppel, as laid down authoritatively by the Hon’ble Supreme Court in M.P. Sugar Mills v. State of U.P. [(1979) 2 SCC 409] affirmed that where one party has, by its words or conduct, made a clear and unambiguous representation to another party, intending that representation to be acted upon, and the other party has acted upon that representation to its detriment, the party making the representation is estopped from resiling from it. The principle operates as a rule of equity and justice and prevents a party from blowing hot and cold making promises and representations to induce action, only to disown them when it suits its own convenience.

VII. In the present case, the Promoter, M/s Brilliant Etoile Private Limited made clear and repeated representations to Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj, through its duly authorised representatives Mr. Amit Tiwari and Director Mr. Peng Qing Jonathan, that:

Apartment A-1501 would be transferred in the names of Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj;

third party payments from Sh. Rajesh Bhardwaj would be accepted towards the cost of Apartment A-1501;

upon allotment of the new Apartment A-902, all payments made towards Apartment A-1501 would be fully adjusted against the cost of Apartment A-902; and;

the new Apartment A-902 would have the same amenities, facilities, EWS quarter, and four covered car parking spaces as Apartment A-1501.

Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj acted upon each of these representations to their significant financial detriment, parting with monies totalling Rs. 82,15,379/- in reliance thereon. The Promoter is therefore estopped from resiling from these representations or from taking any position inconsistent therewith.

VIII. Crucially, the Promoter’s agent and channel partner Ms. Puja Singh Sangwan was the very instrument through whom both the original allotment of A-1501 and the subsequent representations to Sh. Rajesh Bhardwaj were made. In law, a principal is bound by the acts and representations of its authorised agent made within the scope of the agent’s authority. Ms. Puja Singh Sangwan was not a third party or a stranger, she was a RERA-registered real estate agent, an authorised Channel Partner of the Promoter, and had a Channel Partner Agreement with the Promoter under which she was entitled to receive commissions. The Promoter cannot in these circumstances disown the representations made by its own authorised agent to induce Sh. Rajesh Bhardwaj to part with his money, particularly when the Promoter itself accepted the payments so made and deposited them in its own bank accounts.

IX. The Promoter’s fraudulent conduct is further compounded by the fact that it accepted Demand Drafts drawn in favor of the Promoter, M/s Brilliant Etoile Pvt. Ltd. The issuing bank has clearly mentioned the name of purchaser as Sh. Rajesh Bhardwaj. Thus, the promoter was fully aware that the Demand Drafts were issued by a third party and not by the original allottees, Ms. Anita Yadav and Ms. Puja Singh Sangwan and still encashed those Demand Drafts into its own bank account.

X. This act of accepting and encashing third-party payments, in the full knowledge of the identity of the payor, is irrefutable documentary evidence of the Promoter’s acquiescence in and acceptance of Sh. Rajesh Bhardwaj as the de facto allottee of Apartment A-1501. Having accepted the money, the Promoter then paid a commission of Rs. 55,10,000/- to Ms. Puja Singh Sangwan as a channel partner, a payment that would only be triggered upon completion of a valid booking. This further establishes that the Promoter had treated Sh. Rajesh Bhardwaj as the true allottee and Ms. Puja Singh Sangwan as the channel partner, and not as a co-allottee, for Unit A-1501. Having thus accepted the money and paid commission on it, the Promoter cannot now turn around and deny the very transaction it had facilitated.

XI. This Authority also takes serious note of a further consequence of the Promoter’s unlawful and fraudulent conduct: as of the date of this order, both Apartment A-1501 and Apartment A-902 are effectively lying vacant and unallotted, with the Promoter holding substantial monies of the allottees against both units. Apartment A-1501 was transferred by the original allottees Ms. Anita Yadav and Ms. Puja Singh Sangwan to Sh. Rajesh Bhardwaj on the strength of the Promoter’s own assurances, following which the original allottees ceased to have any further stake in the unit. The Promoter, having accepted payment from Sh. Rajesh Bhardwaj and having agreed to transfer A-1501 to him, then unilaterally changed and allotted A-902 instead, without adjusting the payments as promised. It subsequently terminated both allotments illegally. The net result is that the Promoter has both Apartment A-1501 and Apartment A-902 available to it in an unencumbered state having collected Rs. 82,15,379/- from the allottees across both units while the allottees are left with neither an apartment nor their money. This is a textbook case of unjust enrichment and therefore, the Authority must refuse approval to such conduct.

XII. This Authority therefore holds that the Promoter M/s Brilliant Etoile Private Limited’s conduct in accepting substantial payments, making repeated assurances of transfer and adjustment of allotment rights through its own authorised agent and its own directors, depositing such payments in its own accounts, paying commission thereon, thereafter failing to honour those assurances, allotting a substitute apartment of inferior specifications without fulfilling the promised adjustments, and subsequently seeking to cancel both allotments while retaining both apartments for resale at its own profit, constitutes a failure to discharge its obligations under the Act and under the terms and conditions of the Agreements for Sale, within the meaning of Section 18(3) of the Act, and amounts to fraud upon the allottees for which the Promoter must be held fully liable.

I. Relief in Complaint No. 26/12/2023 filed by M/s Brilliant Etoile Private Limited against Ms. Anita Yadav and Ms. Puja Singh Sangwan: This Authority has found that the cancellation of allotment of Apartment A-1501 in favour of Ms. Anita Yadav and Ms. Puja Singh Sangwan vide Termination Notice dated 06.10.2023 is legally invalid and unsustainable. The Complaint No. 26/12/2023 filed by the Promoter against Ms. Anita Yadav and Ms. Puja Singh Sangwan is accordingly dismissed in its entirety. The Promoter’s termination of Apartment A-1501 is set aside and declared void ab initio. The allotment of Apartment A-1501 continues to subsist in the name of Ms. Anita Yadav and Ms. Puja Singh Sangwan.

II. Relief in Complaint No. 19/12/2023 filed by M/s Brilliant Etoile Private Limited against Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj: This Authority has found that the cancellation of allotment of Apartment A-902 in favour of Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj vide Termination Notice dated 06.10.2023 is likewise legally invalid and unsustainable. Complaint No. 19/12/2023 filed by the Promoter against Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj is accordingly dismissed in its entirety. The Promoter’s termination of Apartment A-902 is set aside and declared void ab initio.

III. Relief in Complaint No. 11/05/2024 filed by Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj against M/s Brilliant Etoile Private Limited and Others:

i The total amount to be refunded to Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj comprises all sums paid by them or on their behalf, whether towards the erstwhile Apartment A-1501 or the subsequently allotted Apartment A-902. This includes:

Rs. 61,32,879/- paid by Sh. Rajesh Bhardwaj directly to the Promoter by Demand Drafts towards Apartment A-1501; and;

Rs. 10,40,000/- paid by Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj towards booking amount for Apartment A-902.

ii The aggregate of all amounts paid is Rs. 71,72,879/- (Rupees Seventy-One Lakh Seventy-Two Thousand Eight Hundred and Seventy-Nine only). The Promoter, having accepted all these payments directly into its bank account is bound to refund the entirely of such amount to Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj within 45 days from the date of this order along with interest at the rate of 10.75% per annum from the date of receipt of each amount till the date of payment.

iii Upon payment of the full refund amount with interest as directed above, the allotment of Apartment A-902 in favour of Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj shall stand extinguished, and M/s Brilliant Etoile Private Limited shall be free to deal with Apartment A-902 as an unencumbered unit.

iv The amount of Rs. 10,42,500/- paid by Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj to Ms. Anita Yadav and Ms. Puja Singh Sangwan is a private transaction between those parties and does not involve the Promoter. This Authority need not adjudicate disputes arising from such private arrangements. Any claim for recovery of the said amount is left open to be pursued before a competent Court.