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Judgment
This order shall dispose of the following three complaints which are being taken up together as the facts and circumstances are intrinsically interconnected and involve the same real estate project namely ‘the Sky Manson’, same apartments, overlapping transactions and overlapping parties:
a. Complaint No. 16/12/2023 titled M/s Brilliant Etoile Private Limited versus Rajesh Kumar Wadhwa, relating to allotment of Apartment No. A-1601.
b. Complaint No. 17/12/2023 titled M/s Brilliant Etoile Private Limited versus Rajesh Bhardwaj & Sandeep Bhardwaj, relating to allotment of Apartment No. A-802.
c. Complaint No. 04/05/2024 titled Shri Rajesh Bhardwaj & Shri Sandeep Bhardwaj versus M/s Brilliant Etoile Private Limited & Others, relating to Apartment No. A-802.
The Sky Mansion project is a multi-storeyed group housing complex situated on 19 Bigha 14 Biswa of land at Village Chandanhaula, Tehsil Hauz Khas, New Delhi. The project was registered with RERA, NCT of Delhi vide Registration Certificate No. DLRERA2018P0014 dated 24.07.2018. The registration was initially valid up to 25.08.2021 and was subsequently extended to 24.12.2023. The landowner of the project is M/s Uppal Housing Pvt. Ltd., which granted development rights to M/s Brilliant Etoile Private Limited (hereinafter "the Promoter") through a Collaboration Agreement dated 21.06.2017 and Power of Attorney dated 25.09.2018. The Promoter completed the construction and obtained the Occupancy-cum-Completion Certificate on 30.10.2023.
The main parties involved in these proceedings are:
a. M/s Brilliant Etoile Pvt. Ltd. – the Promoter of the Sky Mansion project.
b. Mr. Rajesh Kumar Wadhwa – the original allottee of Apartment No. A-1601 (15th Floor, Tower-A).
c. Ms. Puja Singh Sangwan – an Applicant/Intervenor in Complaint No. 16/12/2023 and 17/12/2023. She is a RERA-registered real estate agent (Registration No. DLRERA2020A0072) and an authorised Channel Partner of the Promoter. She has claimed rights in Apartment No. A-1601 pursuant to a Memorandum of Understanding (MOU) dated 22.02.2021 signed between her and Shri Rajesh Kumar Wadhwa allottee of apartment no. 1601.
d. Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj –the allottees of Apartment No. A-802 and the Complainants in Complaint No. 04/05/2024. e. M/s Uppal Housing Pvt. Ltd. – the landowner, arrayed as Respondent No. 2 in Complaint No. 04/05/2024.
Let us deal with averments made on behalf of the parties in each case separately.
COMPLAINT NO. 16/12/2023: M/s Brilliant Etoile Private Limited versus Rajesh Kumar Wadhwa (Relating to Apartment No. A-1601, 15th Floor, Tower-A)
SUBMISSIONS OF THE COMPLAINANT (M/s Brilliant Etoile Private Limited): The arguments and submissions made on behalf of the Complainant, M/s Brilliant Etoile Private Limited, are summarised as under:
a. The Promoter averred that the Respondent, Mr. Rajesh Kumar Wadhwa, booked Apartment bearing No. 1601, 15th Floor, Tower-A (hereinafter referred to as "A-1601") in the project "Sky Mansion" vide application dated 22.08.2020. The Promoter allotted the said Apartment A-1601 to the Respondent on 31.08.2020 for a total consideration of Rs. 7,11,64,058/-(Rupees Seven Crore Eleven Lakh Sixty-Four Thousand and Fifty-Eight only) and executed an Agreement for Sale dated 20.10.2020, registered in the office of the Sub-Registrar, Hauz Khas, New Delhi vide Registration No. 5329 dated 06.11.2020.
b. The Respondent opted for a 10:90 payment plan, whereby 10% of the cost of the apartment was to be paid at the time of booking and 90% at the time of completion (i.e., on making application for the Occupancy-cum-Completion Certificate). The Promoter stated that the Respondent paid only Rs. 10,50,000/- as the booking amount but failed to make payment of the remaining 90% balance amount.
c. The Promoter averred that it applied for the Occupancy-cum-Completion Certificate (OC) on 02.06.2023, following which multiple demand notices were issued. A Pre-Termination Notice dated 13.09.2023 was thereafter served seeking payment of Rs. 6,22,40,311/- being the outstanding balance including interest, and stipulating that failure to pay would result in exercise of the Promoter's rights under the Agreement for Sale. Since the Respondent failed to pay the same, the Promoter issued a Termination Notice dated 06.10.2023 under Section 11(5) of the Real Estate (Regulation and Development) Act, 2016 (hereinafter "the RERA Act" or "the Act"), cancelling the allotment and forfeiting the amounts paid.
d. The Promoter submitted that a total of Rs. 69,88,622/- was reflected as having been received from the Respondent at the time of filing. However, during the pendency of the proceedings, it was discovered that two payments of Rs. 29,73,061/- each, deposited in the Promoter's bank account, were third-party payments made by Ms. Puja Singh Sangwan and Mr. Rajesh Bhardwaj respectively. Since such third-party payments were prohibited under Clause 1.15 of the Agreement for Sale, the Promoter claimed to have refunded the said payments to Ms. Puja Singh Sangwan on 17.03.2021 and to Mr. Rajesh Bhardwaj on 22.03.2021. The Promoter further stated that similar third-party payments were again made by way of two Demand Drafts of Rs. 29,73,061/-each, and that it became aware of the source of these payments only after the filing of the present complaint.
e. The Promoter submitted that the registered Agreement for Sale continued to subsist as an encumbrance, preventing it from transferring the unit to any prospective buyer, and that the Sub-Registrar, Hauz Khas, New Delhi, refused to cancel the registered Agreement for Sale without an order or direction from this Authority.
f. The Promoter denied any knowledge of the Memorandum of Understanding (MOU) dated 22.02.2021 allegedly executed between the Respondent and Ms. Puja Singh Sangwan for transfer of allotment rights. It asserted that Clause 11.1 of the Agreement for Sale expressly prohibited transfer of allotment to a third party without prior written consent of the Promoter, and that no such consent was ever sought or granted.
In view of the above, the Complainant made the following prayers:
To direct the Sub-Registrar, Hauz Khas, New Delhi, to cancel the Agreement for Sale dated 20.10.2020, registered vide Registration No. 5329 dated 06.11.2020.
To direct the Respondent to hand over the original documents pertaining to the allotment and to issue directions against the Respondent not to raise any claim on the basis of the aforesaid documents.
SUBMISSIONS OF THE RESPONDENT (Rajesh Kumar Wadhwa): In response, the Respondent Mr. Rajesh Kumar Wadhwa filed a detailed reply. The arguments and submissions made on his behalf are summarised as under:
a. The Respondent submitted that he had booked Apartment A-1601 through the Promoter's authorised channel partner Ms. Puja Singh Sangwan on 22.08.2020 and had paid a total of Rs. 10,42,500/- as booking amount, duly acknowledged vide receipts dated 31.08.2020 and 01.10.2020. An Agreement for Sale dated 20.10.2020 was executed and registered with the Sub-Registrar, Hauz Khas, New Delhi.
b. The Respondent admitted that owing to financial constraints, he was unable to make further payments beyond the booking amount. He stated that he had categorically informed the Promoter's representatives of his inability to pay further amounts, and requested the promoter to forfeit the booking amount and terminate his allotment.
c. The Respondent submitted that the Promoter's representative Mr. Amit Tiwari approached him proposing that the allotment rights be transferred to the Promoter's channel partner and booking agent Ms. Puja Singh Sangwan for a consideration of Rs. 10,50,000/-. Acting on this advice and assurance, he agreed to transfer his allotment to Ms. Puja Singh Sangwan.The Respondent and Ms. Puja Singh Sangwan executed an MOU dated 22.02.2021, under which the Respondent sold his allotment rights to Ms. Puja Singh Sangwan for Rs. 10,50,000/-. All original allotment documents were handed over to Ms. Puja Singh Sangwan, duly acknowledged by her signatures.
d. The Respondent stated that pursuant to the MOU, Ms. Puja Singh Sangwan and Mr. Rajesh Bhardwaj made payments towards the unit directly to the Promoter. As per the Payment Ledger shared by the Promoter vide email dated 09.10.2023, a payment of Rs. 59,46,122/- was reflected as received from Ms. Puja Singh Sangwan and Mr. Rajesh Bhardwaj via RTGS on 01.03.2021. Further payments of Rs. 29,73,061/- each were made by Ms. Puja Singh Sangwan and Mr. Rajesh Bhardwaj on 20.03.2021 and 25.03.2021 respectively, as reflected in the Promoter's own Payment Ledger. The Respondent contended that the Promoter was fully aware of these payments and had accepted them.
e. The Respondent stated that vide email dated 12.08.2021, he had formally requested the Promoter's CRM team to transfer the unit in the name of Ms. Puja Singh Sangwan. Despite this, the Promoter continued to raise payment demands and issue termination notices in his name instead of Ms. Puja Singh Sangwan's. The Respondent had consistently forwarded all such communications to Ms. Puja Singh Sangwan and had repeatedly apprised the Promoter that the unit stood transferred.
f. The Respondent pointed out that the Promoter's own records reflected payment of agent brokerage of Rs. 53,84,171/- to Ms. Puja Singh Sangwan, thereby acknowledging her role in the unit. The Respondent contended that privity of contract had, for all practical purposes, shifted to Ms. Puja Singh Sangwan, and that he had no concern with the unit after the execution of the MOU dated 22.02.2021.
g. The Respondent asserted that the complaint was false, frivolous and vexatious, filed with an oblique motive to harass him despite the Promoter's full knowledge that he had ceased to have any privity of contract after 22.02.2021. The Respondent further contended that the reliefs sought were beyond the statutory purview of this Authority.
SUBMISSIONS OF THE APPLICANT/INTERVENOR (Ms. Puja Singh Sangwan): Ms. Puja Singh Sangwan filed an Intervention Applicant on 25.08.2025 which was decided by the Authority through order dated 09.10.2025 allowing her impleadment as a party in complaint titled as M/s Brilliant Etoile Pvt. Ltd. versus Rajesh Kumar Wadhwa (Complaint No. 16/12/2023) and Written Arguments as an Applicant/Intervenor in Complaint No. 16/12/2023. Her submissions are summarised as under:
a. Ms. Puja Singh Sangwan submitted that she has a direct and substantial stake in Apartment A-1601 by virtue of multiple transactions and monetary contributions. She purchased the allotment rights from Mr. Rajesh Kumar Wadhwa vide MOU dated 22.02.2021 for a consideration of Rs. 10,42,500/-, and TDS of Rs. 7,875/- was also deposited with the Income Tax Department on the said transaction. She had also informed the Promoter about this transaction via email.
b. The Applicant submitted that she subsequently entered into an MOU with Mr. Rajesh Bhardwaj on 01.03.2021 for joint ownership of the unit. Both parties transferred the requisite amounts via RTGS, which were initially returned by the Promoter citing non-acceptance of third-party payments. Thereafter, the Promoter directed both parties to submit Demand Drafts along with KYC documents, assuring that once the Builder Buyer Agreement (BBA) was amended to reflect their names, the Demand Drafts would be accepted.
c. The Applicant stated that both Demand Drafts of Rs. 29,73,061/- each, clearly bearing the names "Puja Singh Sangwan" and "Rajesh Bhardwaj" as drawees, were duly credited into the Promoter's accounts. Despite accepting these payments, the Promoter never effected the name change in the BBA, though receipts were issued acknowledging such payments.
d. The Applicant submitted that a second MOU was executed on 07.07.2021 whereby Mr. Rajesh Bhardwaj purchased the remaining 50% share of the Applicant. Thereafter, a third MOU was executed cancelling both earlier MOUs and restoring 100% ownership of Apartment A-1601 to Ms. Puja Singh Sangwan. It was agreed that the amount of Rs. 34,98,061/- deposited by Mr. Rajesh Bhardwaj towards A-1601 would be refunded to him by adjusting it against a separate unit (Apartment A-802), through a Demand Draft issued by Ms. Puja Singh Sangwan in favour of the Promoter, which the Promoter again accepted.
e. The Applicant contended that the Promoter deliberately misrepresented facts with the ulterior motive of unjustly forfeiting amounts paid by her and enabling resale of the unit at a higher market price. The Applicant invoked the doctrine of estoppel, submitting that the Promoter, having accepted payments and given assurances of transfer, cannot take a contrary position. The Applicant sought a direction to refund Rs. 29,73,061/- along with interest at MCLR+2%.
COMPLAINT NO. 17/12/2023: M/s Brilliant Etoile Private Limited versus Rajesh Bhardwaj & Sandeep Bhardwaj (Relating to Apartment No. A-802, 8th Floor, Tower-
A)
9. SUBMISSIONS OF THE COMPLAINANT (M/s Brilliant Etoile Private Limited):
The arguments and submissions made on behalf of the Complainant, M/s Brilliant Etoile Private Limited, are summarised as under:
a. The Respondents (Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj), vide their application dated 03.09.2021 bearing Application No. 85, applied for a residential apartment in the Sky Mansion project, opting for a 10:90 payment plan.
b. The Complainant allotted Apartment bearing No. 802, 8th Floor, Tower-A (hereinafter referred to as "A-802") to the Respondents vide allotment letter dated 03.09.2021, along with 03 covered parking spaces and undivided proportionate interest in the common area, for a total sale consideration of Rs. 7,40,00,000/- (Rupees Seven Crore Forty Lakh only). An Agreement for Sale was executed on 16.03.2022, registered in the office of the Sub-Registrar, Hauz Khas, New Delhi vide Registration No. 1851.
c. The Respondents paid Rs. 10,40,000/- (Rupees Ten Lakh Forty Thousand only) as the booking/advance amount towards the total sale consideration.
d. Upon applying for the Occupancy-cum-Completion Certificate on 02.06.2023, the Complainant issued five demand notices requiring the Respondents to clear the balance payment as per the agreed payment schedule. The Respondents failed to make any such payment.
e. The Complainant issued a Pre-Termination Notice dated 13.09.2023 seeking payment of Rs. 6,48,21,509/- (Rupees Six Crore Forty-Eight Lakh Twenty-One Thousand Five Hundred and Nine only) being the balance consideration including interest, and stipulating that failure to pay would result in exercise of the Complainant's rights. The Respondents took no steps to clear the said dues.
f. The Complainant, in exercise of powers under Section 11(5) of the RERA Act, served upon the Respondents a Termination Notice dated 09.10.2023, cancelling the allotment on account of failure to pay the balance sale consideration. An amount of Rs. 1,50,72,400/- (Rupees One Crore Fifty Lakh Seventy-Two Thousand Four Hundred only) was stated to be forfeitable in accordance with agreed terms and conditions. The total outstanding dues including interest as on the date of termination were stated to be Rs. 6,90,48,646/-.
g. Thereafter, the Complainant approached the Sub-Registrar, Hauz Khas, New Delhi seeking cancellation of the registered Agreement for Sale, but the Sub-Registrar refused to do so in the absence of an order or direction from this Authority.
In view of the above, the Complainant made the following prayers:
To direct the Sub-Registrar, Hauz Khas, New Delhi, to cancel the Agreement for Sale dated 16.03.2022, registered vide Registration No. 1851, for allotment of Apartment No. A-802.
To direct the Respondents Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj to hand over the original documents pertaining to the allotment and to issue directions against the Respondents not to raise any claim on the basis of the aforesaid documents.
11. SUBMISSIONS OF THE RESPONDENTS (Rajesh Bhardwaj & Sandeep
Bhardwaj): In response, Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj filed a detailed reply. Their submissions are summarised as under:
a. At the outset, the Respondents raised a preliminary jurisdictional objection, submitting that the relief sought by the Complainant, namely a direction to the Sub-Registrar for cancellation of the registered Agreement for Sale, does not fall within the purview of the RERA Act and is outside the jurisdiction of this Authority. The Respondents submitted that cancellation of a registered document can only be sought through a suit in a Civil Court under the relevant provisions of the Specific Relief Act, 1963, and that Section 79 of the RERA Act bars jurisdiction of the Civil Court only in respect of matters which this Authority is empowered to determine.
b. The Respondents submitted that the same facts and issues have already been raised by them in Complaint No. 04/05/2024 filed before this Authority on 18.04.2024, which is pending adjudication, and wherein the Respondents have prayed for a refund of Rs. 72,50,405/- along with interest at 10.50% per annum.
c. The Respondents submitted that they were approached by Ms. Puja Singh Sangwan, the Promoter's authorised channel partner, who induced them into the transaction by portraying an attractive picture of the project. The Respondents were subsequently introduced to Mr. Amit Tiwari and one of the Directors of the Promoter, Mr. Peng Qing Jonathan, who gave assurances that the allotment of the erstwhile Unit A-1601 (originally allotted to Mr. Rajesh Kumar Wadhwa) would be transferred in favor of the Respondents, and that the Promoter had taken all necessary approvals and was willing to accept third-party payments from them.
d. Acting on these assurances, the Respondents executed an MOU/Agreement dated 01.03.2021 and made the following payments towards erstwhile Apartment No. A-1601:
| S. No. | Date | Amount (Rs.) | Cheque/DD No. | Payment Made To |
|---|---|---|---|---|
| 1 | 01.03.2021 | Rs. 5,25,000/- | Cheque No. 04966 | Initial Allottee (Mr. Rajesh Kumar Wadhwa) |
| 2 | 23.03.2021 | Rs. 29,73,061/- | DD No. 515465 | Complainant (M/s Brilliant Etoile Pvt. Ltd.) |
e. Despite receiving the aforesaid payments towards erstwhile Apartment A-1601, the Complainant neither issued receipts in the name of the Respondents nor transferred the unit in their favour. The Complainant thereafter unilaterally informed the Respondents that the process of transferring names in pre-booked units had been stopped by higher management, and that a new unit would instead be allotted to the Respondents. The Complainant assured that all payments made towards the erstwhile unit would be adjusted towards the new unit and that the new unit would carry similar amenities, facilities and additional benefits.
f. Being unable to secure a refund and having already paid substantial amounts, the Respondents had no option but to accept the new unit (Apartment No. A-802). A Memorandum of Understanding / Agreement for Cancellation/Settlement dated 09.03.2022 was executed between the initial allottee, the Respondents and the authorised agent, followed by an Agreement for Sale dated 16.03.2022 for Apartment No. A-802. The Respondents made the following payments towards the new unit:
| S. No. | Date | Amount (Rs.) | Cheque/DD No. | Payment Made To |
|---|---|---|---|---|
| 1 | 31.08.2021 | Rs. 10,40,000/- | RTGS/ICICI R52021083100248005 | Complainant (M/s Brilliant Etoile Pvt. Ltd.) |
| 2 | 11.03.2022 | Rs. 27,11,844/- | DD No. 516821 | Complainant (M/s Brilliant Etoile Pvt. Ltd.) |
g. Upon execution of the Agreement for Sale for Apartment A-802, the Respondents found that the new unit did not have an EWS quarter (which the erstwhile unit carried) and had only 03 covered car parking spaces instead of the 04 covered car parking spaces that had been promised. The Complainant also failed to adjust the amounts paid towards Apartment A-1601 against the new Apartment A-802 as assured.
h. The Respondents raised their grievances vide email dated 23.06.2023, which the Complainant chose not to address. Being aggrieved by the conduct of the Complainant and its authorised agent, the Respondents were constrained to lodge FIR No. 684/2023 under Sections 420, 406, 467, 468, 471, 506 and 120-B of the Indian Penal Code, 1860 with Police Station Kavi Nagar, Ghaziabad against the Complainant, its directors and the initial allottee.
The Respondents stated that they did not respond to the demand notices, the Pre-Termination Notice dated 13.09.2023 or the Termination Notice dated 09.10.2023 as the same were issued in contravention of the agreed terms and conditions. The Respondents also brought to the attention of this Authority that the Complainant had, subsequent to the proceedings, entered into a Settlement Agreement dated 27.02.2025 with Ms. Puja Singh Sangwan and her husband Mr. Vijay Singh – a material fact which the Complainant deliberately and wilfully concealed before this Authority.
j. The Respondents also pointed out that the Complainant had admitted in its Reply to Complaint No. 04/05/2024 that it had received a total amount of Rs. 1,38,97,784/- from the Respondents towards sale consideration for multiple units including the erstwhile unit and the new unit, and that out of this, an amount of Rs. 47,91,844/- was received towards Apartment Nos. A-802 and A-902 under the registered Agreements for Sale. The Respondents contended that this admission substantially deviated from the position taken by the Complainant in the instant complaint.
12. SUBMISSIONS OF THE APPLICANT/INTERVENOR (Ms. Puja Singh Sangwan):
Ms. Puja Singh Sangwan also filed Written Arguments as an Applicant/Intervenor in Complaint No. 17/12/2023. Her submissions are summarised as under:
a. Ms. Puja Singh Sangwan submitted that she has a direct and substantial stake in Apartment No. A-802 by virtue of multiple transactions and monetary contributions. She submitted that Apartment A-1601 was originally allotted to Mr. Rajesh Kumar Wadhwa, who sold his rights to her and Mr. Rajesh Bhardwaj vide an MOU, and that she informed the Promoter about this transaction via email.
b. The Applicant submitted that the Promoter assured her and Mr. Rajesh Bhardwaj that payments would be accepted through Demand Drafts and that the Builder Buyer Agreement would be amended to reflect their names. Despite Clauses 1.15 and 1.15.1 of the BBA prohibiting acceptance of third-party payments, the Promoter accepted Demand Drafts of Rs. 29,73,061/-each bearing their names as drawees, and credited the same into its accounts, without ever effecting the name change in the BBA.
c. The Applicant submitted that through a series of MOUs executed between herself and Mr. Rajesh Bhardwaj, the ownership rights in Apartment A-1601 were eventually consolidated back 100% in favour of Ms. Puja Singh Sangwan. It was agreed that Rs. 34,98,061/- deposited by Mr. Rajesh Bhardwaj towards Apartment A-1601 would be refunded to him by way of adjustment against Apartment A-802, and a Demand Draft issued by Ms. Puja Singh Sangwan in favour of the Promoter was accepted by the Promoter towards this adjustment.
d. The Applicant contended that the Promoter has deliberately suppressed material facts, has accepted substantial payments both directly and indirectly including third-party Demand Drafts bearing her name, in clear violation of Clause 1.15 of the BBA. She invoked the doctrine of estoppel and contended that the Promoter, not having come with clean hands, cannot seek equitable relief. The Applicant sought a direction for refund of Rs. 34,98,061/- along with interest at MCLR+2%.
COMPLAINT NO. 04/05/2024: Shri Rajesh Bhardwaj & Shri Sandeep Bhardwaj versus M/s Brilliant Etoile Private Limited & Others (Relating to Apartment No. A-802, 8th Floor, Tower-A)
13. SUBMISSIONS OF THE COMPLAINANTS (Rajesh Bhardwaj & Sandeep
Bhardwaj): The arguments and submissions made on behalf of the Complainants, Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj, are summarised as under:
a. 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 authorised channel partner/sales consultant of the Promoter, who portrayed an attractive picture of the Sky Mansion project and assured world-class facilities and amenities. On the insistence of Ms. Sangwan, the Complainants met the Promoter’s representatives, including Mr. Amit Tiwari and Director Mr. Peng Qing Jonathan, who gave assurances that the allotment would be done swiftly in the Complainants’ names after proper documentation.
b. The Complainants averred that during the meeting with the Promoter's representatives, they were induced to opt for a 10:90 payment scheme whereby only 10% of the cost of the apartment was to be paid at the time of booking, with the remaining 90% at the time of application for the Occupancy-cum-Completion Certificate. The Complainants stated that they were also induced to agree to pay a 5% commission to the authorised sales consultant.
c. The Complainants stated that they raised a concern that the erstwhile Apartment A-1601 (originally allotted to Mr. Rajesh Kumar Wadhwa) was already booked and that accepting third-party payments from them would be illegal. The Promoter's representatives assured them that all necessary approvals had been obtained from the requisite authorities and that accepting third-party payments was within their permissible guidelines. Acting on these assurances, the Complainants executed an MOU/Agreement dated 01.03.2021 with the initial allottee/authorised agent regarding erstwhile Apartment A-1601 and made the following payments:
| S.No. | Date | Amount (Rs.) | Cheque/DD No. | Payment Made To |
|---|---|---|---|---|
| 1 | 01.03.2021 | Rs. 5,25,000/- | Cheque No. 04966 | Initial Allottee (Mr. Rajesh Kumar Wadhwa) |
| 2 | 23.03.2021 | Rs. 29,73,061/- | DD No. 515465 | Complainant (M/s Brilliant Etoile Pvt. Ltd.) |
d. The Complainants averred that despite receiving the aforesaid payments towards erstwhile Apartment A-1601, the Promoter neither issued receipts in the Complainants' names nor transferred the unit in their favour.
e. The Promoter thereafter unilaterally informed the Complainants that it had stopped the process of transferring names in pre-booked units, and that higher management had decided to allot them a new unit. The Promoter assured that the new unit would have all similar amenities and facilities including an EWS quarter and four covered car parking spaces as the erstwhile unit, and that all payments made towards erstwhile Apartment A-1601 would be adjusted towards the new unit.
f. The Complainants stated that since they had already paid substantial amounts towards erstwhile Apartment A-1601 but the Promoter refused to either transfer it in their names or refund the amounts paid, they reluctantly agreed to accept the new unit. A MOU/Agreement for Cancellation/Settlement dated 09.03.2022 was executed between the initial allottee, the Complainants and the authorised agent, followed by an Agreement for Sale dated 16.03.2022, registered with the Sub-Registrar, Hauz Khas, New Delhi vide Registration No. 1851, for allotment of Apartment No. A-802 for a total consideration of Rs. 7,40,00,000/-. The Complainants made the following payments towards the new unit:
| S. No. | Date | Amount (Rs.) | Cheque/DD No. | Payment Made To |
|---|---|---|---|---|
| 1 | 31.08.2021 | Rs. 10,40,000/- | RTGS/ICICIR 52021083100248005 | Complainant (M/s Brilliant Etoile Pvt.Ltd.) |
| 2 | 11.03.2022 | Rs. 34,98,061/- | DD No. 513476 | Complainant (M/s Brilliant Etoile Pvt. Ltd.) |
| 3 | 11.03.2022 | Rs. 27,11,844/- | DD No. 516821 | Complainant (M/s Brilliant Etoile Pvt. Ltd.) |
g. Upon execution of the Agreement for Sale for Apartment A-802, the Complainants discovered that the new unit did not have an EWS quarter and had only 03 covered car parking spaces instead of the 04 covered car parking spaces promised. The Promoter also failed to adjust the amounts paid towards erstwhile Apartment A-1601 against the new Apartment A-802 as had been assured.
h. The Complainants sent an email dated 23.06.2023 to the Promoter, its parent company and its directors raising the aforesaid discrepancies; however, the Promoter chose not to address the said queries.
The Complainants stated that upon further investigation, they discovered that the Promoter and the authorised sales consultant are habitual offenders who have defrauded multiple innocent persons. This led them to lodge FIR No. 684/2023 under Sections 420, 406, 467, 468, 471, 506 and 120-B of the Indian Penal Code, 1860 with Police Station Kavi Nagar, Ghaziabad, against the Promoter, its directors and the initial allottee. The Complainants further noted that Director Mr. Peng Qing Jonathan obtained Anticipatory Bail from the Hon'ble Allahabad High Court on 19.02.2024 in the matter titled Peng Qing v. State of U.P. [2024 AHC 2853] on the basis of misleading facts.
j. The Complainants contended that Clause 1.15 of the Agreement for Sale explicitly prohibited acceptance of third-party payments. However, the Promoter, notwithstanding the said clause and in utter violation thereof, proceeded to accept third-party payments from the Complainants, which is ex-facie bad in law and demonstrates the mala fide intention of the Promoter.
k. The Complainants submitted that the Promoter also violated its obligations under Section 12 read with Section 19 of the RERA Act by allotting a unit with different amenities than those promised, causing loss and damage to the Complainants. The Complainants relied upon the judgment of the Hon'ble Supreme Court in Newtech Promoters and Developers Pvt. Ltd. v. State of Uttar Pradesh & Ors. [(2021) 18 SCC 1] and the judgment of the Hon'ble Bombay High Court in Bombay Dyeing and Manufacturing Company Limited v. Ashok Narang &Anr. [2021 SCC Online Bom 12330] in support of their right to seek refund.
In view of the above, the Complainants made the following prayers:
Refund of the entire amount paid totalling Rs. 72,49,905/- (Rupees Seventy-Two Lakh Forty-Nine Thousand Nine Hundred and Five only) along with interest at 10.50% per annum from the respective dates of payment till realization, invoking Section 12 read with Section 19 of the RERA Act, on account of the Promoter's violation of its obligations regarding the veracity of representations and the amenities promised.
To direct the Sub-Registrar, Hauz Khas, New Delhi to cancel the Agreement for Sale dated 16.03.2022 registered vide Registration No. 1851 pertaining to Apartment No. A-802.
To pay compensation for mental agony and hardship caused to the Complainants by the Respondents.
To pay litigation costs to the Complainants.
SUBMISSIONS OF RESPONDENT NO. 1 (M/s Brilliant Etoile Private Limited): In response, M/s Brilliant Etoile Private Limited filed a detailed reply. Its submissions are summarised as under:
a. The Promoter submitted that the Complainants are not genuine home buyers or 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 Complainants had invested less than 10% of the total cost of the units in both apartments, the combined total consideration of which is approximately Rs. 14,80,00,000/-, and planned to sell them before the Occupancy Certificate was issued. Once the Promoter applied for the Occupancy Certificate and raised a demand for the remaining balance of Rs. 13,95,81,461/- for both apartments, the Complainants, being unable to make such payments, mischievously filed complaints with false and concocted facts.
b. The Promoter submitted that Ms. Puja Singh Sangwan, despite being registered with RERA Delhi as a real estate agent and having signed a Channel Partner Agreement with the Promoter, violated the said agreement by illegally executing different Agreements and MOUs with original allottees and accepting payments in her personal accounts without the knowledge of the Promoter. The Promoter stated that Ms. Sangwan, in conspiracy with the Complainants and other buyers, devised a scheme whereby third-party payments were made into the Promoter's escrow/collection bank account in order to fraudulently secure commission payments from the Promoter.
c. The Promoter provided detailed evidence of the payment sequence, refunds and commissions. When two RTGS payments of Rs. 29,73,061/- each were received on 01.03.2021 as third-party payments towards Apartment A-1601, the same were refunded on 17.03.2021 and 22.03.2021 to Ms. Sangwan's account and the Complainant's account respectively. Subsequently, two Demand Drafts of Rs. 29,73,061/- each were deposited on 20.03.2021 and 25.03.2021, which were later found to be third-party payments made through Ms. Sangwan's account. The Promoter stated that it paid commission to Ms. Sangwan totalling Rs. 1,50,60,928/- across multiple apartments on the basis of these payments, which it later discovered were fraudulently obtained. The total amount received by the Promoter from the Complainant in its escrow/collection bank account is Rs. 1,38,97,784/-, of which Rs. 91,05,940/- relates to third-party payments towards Units A-1501 and A-1601, and Rs. 47,91,844/-pertains to Units A-802 and A-902 under the registered Agreements for Sale.
d. The Promoter submitted that the Complainants had paid a total of Rs. 72,49,905/- towards Apartment A-802 against the total agreed consideration of Rs. 7,40,00,000/-. On application for the Occupancy Certificate on 02.06.2023, the Promoter issued demand notices on 19.06.2023, 07.07.2023, 24.07.2023, 10.08.2023 and 27.08.2023 for the balance payment. Despite service of a Pre-Termination Letter dated 13.09.2023, the Complainants did not make any payment. The Promoter accordingly terminated the allotment vide Termination Letter dated 09.10.2023 under Section 11(5) of the RERA Act. The total outstanding including interest as on 09.10.2023 amounted to Rs. 6,90,48,646/-. In terms of Clauses 9.1.5 and 9.1.6 of the Agreement for Sale, the Promoter forfeited an amount of Rs. 1,50,72,400/-, comprising: (i) 10% of agreement value (Rs. 72,49,905/-); (ii) GST on forfeited amount (Rs. 13,04,983/-); (iii) interest accrued till 09.10.2023 (Rs. 23,63,040/-); and (iv) brokerage paid to Ms. Puja Singh Sangwan (Rs. 41,54,472/-).
SUBMISSIONS OF RESPONDENT NO. 2 (M/s Uppal Housing Pvt. Ltd.): M/s Uppal Housing Pvt. Ltd. filed a reply in Complaint No. 04/05/2024 asserting that it was merely a landowner with no involvement in the construction, development, marketing or sale of the project. It submitted that all development rights were transferred to M/s Brilliant Etoile Private Limited through a Collaboration Agreement dated 21.06.2017 and Powers of Attorney dated 25.09.2018. M/s Uppal Housing Pvt. Ltd. submitted that it had no obligations towards allottees and that no payments were made to it, making the complaint against it baseless and liable to be dismissed on grounds of misjoinder of parties.
BRIEF FACTS OF THE CASE AS BORNE OUT OF RECORDS:
Upon a careful reading of the pleadings, documents and submissions filed in all three complaints, the following factual matrix emerges:
a. The Sky Mansion project is a multi-storeyed group housing complex at Village Chandanhaula, Hauz Khas, New Delhi, developed by M/s Brilliant Etoile Private Limited on land belonging to M/s Uppal Housing Pvt. Ltd. under a Collaboration Agreement dated 21.06.2017. The project was registered with RERA, NCT of Delhi vide No. DLRERA2018P0014 dated 24.07.2018 and the Occupancy-cum-Completion Certificate was obtained on 30.10.2023.
b. On 22.08.2020, Mr. Rajesh Kumar Wadhwa booked Apartment A-1601 (15th Floor, Tower-A) in the Sky Mansion project for a total consideration of Rs. 7,11,64,058/-, under a 10:90 payment plan, and paid Rs. 10,50,000/- as booking amount. An Agreement for Sale was executed on 20.10.2020 and registered with the Sub-Registrar, Hauz Khas, New Delhi vide Registration No. 5329.
c. The Respondent Mr. Rajesh Kumar Wadhwa admitted that he was unable to make further payments beyond the booking amount due to financial constraints and had communicated his inability to the Promoter's representatives and requested the promoter to terminate his allotment. However, Shri Amit Tiwari, representative of the promoter advised him to transfer his allotted unit 1601 to the Promoter’s Channel Partner and booking agent Ms. Puja Singh Sangwan.Acting on a proposal, the Respondent executed an MOU dated 22.02.2021 with Ms. Puja Singh Sangwan transferring his allotment rights in Apartment A-1601 to her for Rs. 10,50,000/-
d. Ms. Puja Singh Sangwan was simultaneously an allottee of Apartment A-1601 (pursuant to the said MOU) and an authorised Channel Partner/real estate agent of the Promoter, registered with RERA, NCT of Delhi (Registration No. DLRERA2020A0072), entitled to receive commission from the Promoter upon successful bookings.
e. Ms. Puja Singh Sangwan entered into an MOU with Mr. Rajesh Bhardwaj on 01.03.2021 for joint ownership of Apartment A-1601. Both parties made payments via RTGS which were initially returned by the Promoter. Thereafter, the Promoter directed both parties to submit Demand Drafts along with KYC documents, assuring that the BBA would be amended to reflect their names upon acceptance. Two Demand Drafts of Rs. 29,73,061/- each, clearly bearing the names of "Puja Singh Sangwan" and "Rajesh Bhardwaj" as drawees, were duly credited into the Promoter's accounts. Despite accepting these payments, the Promoter never effected the name change.
f. Ms. Puja Singh Sangwan and Mr. Rajesh Bhardwaj subsequently executed further MOUs by which ownership rights in Apartment A-1601 were eventually consolidated back 100% in favour of Ms. Puja Singh Sangwan. The amount of Rs. 34,98,061/- deposited by Mr. Rajesh Bhardwaj towards Apartment A-1601 was agreed to be adjusted against Apartment A-802 allotted to him and his brother Mr. Sandeep Bhardwaj, through a Demand Draft issued by Ms. Puja Singh Sangwan in favour of the Promoter, which the Promoter accepted.
g. Upon applying for the Occupancy Certificate on 02.06.2023, the Promoter issued demand notices to Mr. Rajesh Kumar Wadhwa (the original allottee on record) for the 90% balance amount in respect of Apartment A-1601, and simultaneously issued demand notices to Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj for the balance in respect of Apartment A-802. A Pre-Termination Notice dated 13.09.2023 was issued giving only seven days for payment, and both allotments were terminated within 23 days thereof.
h. The Promoter terminated the allotment of Apartment A-1601 vide Termination Notice dated 06.10.2023 and the allotment of Apartment A-802 vide Termination Notice dated 09.10.2023, in both cases claiming that the allottees had failed to pay the balance 90% of the sale consideration.
The total amount paid by or on behalf of Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj comprises: Rs. 5,25,000/- paid to Mr. Rajesh Kumar Wadhwa (initial allottee of A-1601); Rs. 29,73,061/- paid directly to the Promoter by Demand Draft (DD No. 515465) dated 23.03.2021 towards A-1601; Rs. 10,40,000/- paid towards booking of Apartment A-802 (RTGS dated 31.08.2021); and Rs. 27,11,844/- paid to the Promoter (DD No. 516821) towards A-802 on 11.03.2022. The Promoter has admitted receiving a total of Rs. 72,49,905/- from the Complainants towards Apartment A-802.
ANALYSIS AND FINDINGS
Upon careful consideration of the pleadings, documents and submissions made by the parties in all three complaints, the following issues arise for determination by this Authority:
Whether the termination of allotment of Apartment No. A-1601 in favour of Mr. Rajesh Kumar Wadhwa vide Termination Notice dated 06.10.2023 is valid and legally sustainable.
Whether the termination of allotment of Apartment No. A-802 in favour of Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj vide Termination Notice dated 09.10.2023 is valid and legally sustainable.
Whether the request of the Promoter for a direction to the Sub-Registrar for cancellation of the registered Agreements for Sale is within the jurisdiction of this Authority and is otherwise justified.
What relief, if any, can be granted to the parties in the three interconnected complaints?
ISSUE NO. I: Whether the termination of allotment of Apartment No. A-1601 in favour of Mr. Rajesh Kumar Wadhwa vide Termination Notice dated 06.10.2023 is valid and legally sustainable.
The Promoter terminated the allotment of Apartment A-1601 vide Termination Notice dated 06.10.2023, claiming that Mr. Rajesh Kumar Wadhwa had failed to pay the balance 90% of the sale consideration despite repeated demand notices and a Pre-Termination Notice dated 13.09.2023.
It is an admitted position that Mr. Rajesh Kumar Wadhwa paid only Rs. 10,50,000/-as the booking amount and was unable to pay further amounts. However, Mr. Wadhwa has placed on record an MOU dated 22.02.2021 executed between himself and Ms. Puja Singh Sangwan, by which he transferred his allotment rights in Apartment A-1601 to Ms. Puja Singh Sangwan for Rs. 10,50,000/-, and handed over all original allotment documents to her. The Respondent has consistently maintained that he forwarded all communications received from the Promoter to Ms. Sangwan and repeatedly informed the Promoter that he had no further concern with the unit.
The Promoter's claim that it had no knowledge of the MOU dated 22.02.2021 is not credible in light of the following undisputed facts on record:
a. The Promoter's own records reflected payments credited into its bank account from Ms. Puja Singh Sangwan and Mr. Rajesh Bhardwaj against Apartment A-1601.
b. The Promoter, having initially returned the RTGS payments citing the prohibition on third-party payments, thereafter directed Ms. Sangwan and Mr. Bhardwaj to submit Demand Drafts along with KYC documents, and accepted and encashed the same. The identity of the drawees as "Puja Singh Sangwan" and "Rajesh Bhardwaj" was manifestly apparent from the face of the Demand Drafts.
c. The Promoter paid commission of Rs. 53,84,171/- to Ms. Puja Singh Sangwan against Apartment A-1601. Such commission is payable only to a channel partner upon completion of a valid booking, not to an allottee. This payment conclusively demonstrates that the Promoter had itself treated Ms. Puja Singh Sangwan as the real estate agent and not as the allottee in respect of A-1601.
d. Mr. Rajesh Kumar Wadhwa, vide email dated 12.08.2021, formally requested the Promoter to transfer the unit in the name of Ms. Puja Singh Sangwan. The Promoter continued to raise demands in the Respondent's name thereafter, a course of conduct that betrays the Promoter's own knowledge of the transfer and its deliberate choice to maintain the fiction of Mr. Wadhwa's continued allottee status.
The termination effected by the Promoter suffers from another fatal procedural and statutory infirmity. Clause 9.1.4 of the Agreement for Sale dated 20.10.2020 provides that an allottee shall be considered in default only on failure to pay two consecutive demands despite having been issued notice in that regard. The Promoter has terminated the allotment on account of default in payment of only one demand (the 90% balance raised upon application for the Occupancy Certificate), without waiting for a second consecutive default. On this ground alone, the termination is liable to be set aside.
The termination is further vitiated by the Promoter's non-compliance with the mandatory notice period prescribed under the RERA framework. Clause 9.3(ii) of the prescribed form of Agreement for Sale under the NCT of Delhi, Real Estate (Regulation and Development) (Agreement for Sale) Rules, 2016 mandates that an allottee shall be given at least thirty (30) days' prior notice in writing before cancellation of allotment. The use of the word "shall" leaves no room for discretion and renders the thirty-day notice period mandatory. In the present case, the Pre-Termination Notice dated 13.09.2023 granted only seven (7) days' time for payment, and the Termination Notice was issued on 06.10.2023, i.e., only 23 days after the Pre-Termination Notice. This falls manifestly short of the mandatory thirty-day statutory notice period. Non-compliance with this mandatory requirement is fatal to the validity of the termination.
The Promoter's contention that it had issued multiple demand notices over several months and that the allottee had sufficient opportunity to pay does not cure the defect of non-compliance with the mandatory thirty-day pre-termination notice. The statutory safeguard of thirty days is designed to give the allottee a specific and final opportunity, proximate to the intended cancellation, to arrange finances and cure the default. No number of earlier demand notices can substitute for this mandatory requirement.
For the reasons stated above, this Authority holds that the Termination Notice dated 06.10.2023 issued by the Promoter cancelling the allotment of Apartment A-1601 is invalid, illegal and legally unsustainable, on the following independent grounds:
a. The termination was effected on default of payment of a single demand, contrary to the requirement of two consecutive defaults under Clause 9.1.4 of the Agreement for Sale.
b. The Promoter failed to comply with the mandatory thirty-day pre-termination notice requirement prescribed under the NCTD Real Estate (Regulation and Development) (Agreement for Sale) Rules, 2016.
c. The Promoter raised the 90% demand and issued the Termination Notice in the name of Mr. Rajesh Kumar Wadhwa despite being fully aware that the allotment rights had been transferred to Ms. Puja Singh Sangwan with the Promoter's own acquiescence.
Issue No. I is accordingly decided in the negative. The termination of allotment of Apartment A-1601 is held to be illegal, invalid and void ab initio.
ISSUE NO. II: Whether the termination of allotment of Apartment No. A-802 in favour of Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj vide Termination Notice dated 09.10.2023 is valid and legally sustainable.
This Authority must now examine the validity of the Termination Notice dated 09.10.2023 issued by the Promoter cancelling the allotment of Apartment No. A-802 in favour of Sh. Rajesh Bhardwaj and Sh. 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. I.
The undisputed factual position is that Sh. Rajesh Bhardwaj made a payment of Rs. 29,73,061/- by way of Demand Draft No. 515465 dated 23.03.2021 directly to the Promoter towards erstwhile Apartment No. A-1601, which was originally booked in the name of Mr. Rajesh Kumar Wadhwa. In addition, a sum of Rs. 5,25,000/- was paid by Sh. Rajesh Bhardwaj to Mr. Rajesh Kumar Wadhwa, being the initial booking amount paid by the original allottee to the Promoter, making the total amount flowing in respect of Apartment A-1601 Rs. 34,98,061/-. The Promoter accepted the Demand Draft, processed the payment and deposited the same in its bank account, with full knowledge that it had been issued by a third party.
Subsequently, in or around June 2021, the Promoter informed Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj that it could not transfer Apartment A-1601 in their names due to internal policy constraints. However, the Promoter proposed to allot them a new apartment, being Apartment No. A-802 (8th Floor, Tower-A), and gave categorical assurances that: (i) all payments made towards the erstwhile Apartment A-1601 would be adjusted and fully credited towards the purchase price of the new Apartment A-802; and (ii) the new apartment would carry equivalent amenities and facilities as the erstwhile apartment, including an EWS quarter and four covered car parking spaces.
On 03.09.2021, Apartment No. A-802 was formally allotted to Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj at a total sale consideration of Rs. 7,40,00,000/-. An Agreement for Sale was thereafter executed on 16.03.2022. At the time of booking of Apartment A-802, Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj paid a further booking amount of Rs. 10,40,000/- and subsequently paid Rs. 27,11,844/- by way of Demand Draft No. 516821 dated 11.03.2022.
The Promoter's conduct subsequent to the allotment of Apartment A-802 is of critical importance in determining the validity of the termination. The payment schedule for Apartment A-802, being a 10:90 plan, would have required the allottees to make an intermediate payment of 9.9% of the total consideration at an early stage, amounting to approximately Rs. 73,26,000/-, followed by the balance 90% upon application for the Occupancy-cum-Completion Certificate. However, the records establish that the Promoter did not raise any demand for the intermediate 9.9% payment in respect of Apartment A-802 during the entire period from the execution of the Agreement for Sale on 16.03.2022 until the application for the Occupancy Certificate on 02.06.2023.
The Promoter's failure to raise any demand for the intermediate payment obligations is a matter of singular significance. This conduct can be explained only on one hypothesis: that the Promoter intended to adjust and credit the payments made by Sh. Rajesh Bhardwaj towards Apartment A-1601 against the purchase price of Apartment A-802. If the Promoter had not intended to make such adjustment, there would have been no reason whatsoever for it to forgo raising demands for the intermediate payment of approximately Rs. 73,26,000/-. The Promoter's selective non-enforcement of intermediate payment milestones, coupled with its consolidated demand at the occupancy stage, demonstrates a pattern of conduct that can only be reasonably interpreted as an implicit acceptance of the adjustment of prior payments from Apartment A-1601 towards Apartment A-802.
The Promoter's own conduct reveals a tacit acknowledgment that Sh. Rajesh Bhardwaj's payments towards Apartment A-1601 were intended to be credited towards Apartment A-802, 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 any third-party payments or any understanding regarding adjustment of amounts. The Promoter cannot, on one hand, accept substantial payments from Sh. Rajesh Bhardwaj towards Apartment A-1601, pay commission to the sales consultant on these payments, propose Apartment A-802 as an alternative with an express assurance of adjustment of all prior payments, waive demands for intermediate payments for Apartment A-802, and then suddenly claim that Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj are in default of their payment obligations.
This finding is further conclusively reinforced by the statement of Director Mr. Peng Qing Jonathan of the Promoter made before the Hon'ble Allahabad High Court in Criminal Misc. Anticipatory Bail Application U/S 438 CrPC No. 13374 of 2023, arising from FIR No. 684 of 2023. Para 15 of the order dated 19.02.2024 of the Hon'ble Justice Sameer Jain records the applicant's averment that an offer had already been given to the informant (Sh. Rajesh Bhardwaj) that the amounts paid by him as booking amount for flat nos. 1501 and 1601 could be adjusted against the booking amount for flat nos. 802 and 902, and that after receiving the remaining amount, the company would immediately execute the sale deed. This admission, made on oath by the Promoter's own Director before the Hon'ble High Court, is conclusive evidence of the Promoter's agreement to adjust the prior payments and its readiness to proceed with the transaction on that basis.
Para 15 of the said order dated 19.02.2024 of Hon’ble Justice Sameer Jain is reproduced below:
“15.Further, there is not allegation that company of the applicant is not ready to execute the sale deed to the informant with regard to flat nos. 802 and 902 and applicant in the instant anticipatory bail application, in paragraph no. 41 averred that an offer has already been given to the informant that the amount given by him as booking amount for flat nos. 1501 and 1601 can be adjusted against the booking amount for flat nos. 802 and 902 and after receiving the remaining amount, the company immediately will execute sale deed in favour of the informant. The contentions of paragraph no. 41 have not been controverted by the informant in his counter affidavit and in its reply it is only averred in paragraph no. 43 of the counter affidavit filed by the informant that applicant with the collusion of other accused persons duped crores of rupees of the informant.”
The Promoter's case is that it always intended to refund the payments made towards Apartment A-1601 and that fresh payments would be required for Apartment A-802. However, this assertion is belied by the Promoter's own conduct. If the Promoter had genuinely intended to refund those payments, it would have done so at the time of allotting Apartment A-802, or shortly thereafter. The record shows no such refund. On the contrary, the Promoter retained the entire amount and simultaneously raised no intermediate demand for Apartment A-802, clearly demonstrating its intention to treat the prior payments as having been adjusted against the new apartment.
Such conduct on the part of the Promoter amounts to unjust enrichment and constitutes a fraud upon the allottees. The Promoter cannot be permitted to accept substantial payments, fail to provide promised amenities, fail to adjust payments as expressly 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.
Apart from the substantive grounds rendering the termination invalid, the termination of Apartment A-802 also suffers from the same procedural and statutory infirmities as were found in relation to Issue No. I. The Agreement for Sale dated 16.03.2022 executed for Apartment A-802 does not incorporate the mandatory termination procedure prescribed in Clause 9.3(ii) of the prescribed form under the NCTD Real Estate (Regulation and Development) (Agreement for Sale) Rules, 2016 and, in particular, does not incorporate the proviso requiring thirty (30) days' prior intimation before termination. As held in the analysis of Issue No. I, the use of the word "shall" in Rule 3(1) makes compliance with the prescribed form mandatory. A Promoter cannot execute an agreement containing its own one-sided clauses in derogation of the prescribed form, and then seek to rely on such clauses to terminate allotments. This is a fundamental principle that a party cannot take advantage of its own wrong.
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 (30) days' prior intimation before termination. The Promoter issued a Pre-Termination Notice dated 13.09.2023 granting only seven (7) days' time for payment, and thereafter issued the Termination Notice dated 09.10.2023 approximately 26 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 and meaningful opportunity to cure defaults. Non-compliance with this mandatory requirement vitiates the termination.
Similarly, as in the case of Apartment A-1601, the Promoter was required under the Agreement for Sale to register a default and wait for at least two consecutive payment defaults before invoking the right of termination. In the present case also, the Promoter has purported to terminate the allotment on account of the first and only demand raised upon application for the Occupancy Certificate, without there having been any prior consecutive default. The termination is therefore procedurally infirm on this ground as well.
For all the reasons set out above, this Authority holds that the Termination Notice dated 09.10.2023 issued by the Promoter cancelling the allotment of Apartment No. A-802 in favour of Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj is invalid, illegal and legally unsustainable.
Issue No. II is accordingly decided in the negative. It is held that the termination of allotment of Apartment No. A-802 in favour of Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj is illegal, invalid and void ab initio.
ISSUE NO. III: Whether the request of the Promoter for a direction to the Sub- Registrar for cancellation of the registered Agreements for Sale is within the
jurisdiction of this Authority and is otherwise justified.
The Promoter has, in both Complaint Nos. 16/12/2023 and 17/12/2023, made a prayer to direct the Sub-Registrar, Hauz Khas, New Delhi to cancel the respective registered Agreements for Sale, and to direct the allottees to execute cancellation deeds and hand over original documents.
This Authority is of the considered opinion that such a prayer is misconceived and does not fall within the purview of the RERA Act. The Agreements for Sale in question were registered under the provisions of the Registration Act, 1908. A registered document can be cancelled only by a competent civil court under the relevant provisions of the Specific Relief Act, 1963. The Sub-Registrar has no authority under the Registration Act, 1908 to cancel a registered document on the direction of an administrative authority. Similarly, the RERA Act does not contain any provision empowering this Authority to direct cancellation of registered documents.
The Hon'ble Supreme Court in Satya Pal Anand v. State of Madhya Pradesh [(2016) 10 SCC 767] has clearly held that once a document is registered, the Registering Officer has no power to cancel such registration, and that if a party is aggrieved by the registration or validity of a registered document, its remedy is to seek appropriate relief before the civil court. Similarly, in Thota Ganga Laxmi v. Government of Andhra Pradesh [(2010) 15 SCC 207], the Hon'ble Supreme Court held that it is only when a sale deed is cancelled by a competent court that a cancellation deed can be registered.
Section 79 of the RE(RD) Act, 2016 bars the jurisdiction of civil courts only in respect of matters which this Authority, the Adjudicating Officer or the Appellate Tribunal is empowered to determine under the Act. The cancellation of a registered document is not a matter which this Authority is empowered to determine under the Act. Accordingly, Section 79 does not bar the jurisdiction of civil courts in respect of such relief. This is further fortified by Section 88 of the RE(RD) Act, 2016, which provides that the provisions of the Act are in addition to and not in derogation of the provisions of any other law for the time being in force.
In any event, having found that the Agreements for Sale were wrongly and illegally terminated by the Promoter, there is no occasion to direct the cancellation of the said documents. The prayers of the Promoter in Complaint Nos. 16/12/2023 and 17/12/2023 for directions to the Sub-Registrar and to the allottees to execute cancellation deeds are accordingly rejected. Issue No. III is accordingly decided against the Promoter.
ISSUE NO. IV: What relief, if any, can be granted to the parties in the three interconnected complaints?
Having found both terminations to be illegal and invalid, this Authority must now determine the appropriate relief to be granted in the three complaints. The relief must be fashioned keeping in mind the established facts and circumstances, the conduct of the Promoter, the doctrine of promissory estoppel, and the overarching objectives of the Act.
Foremost it is pertinent to note that the Complainants, Shri Rajesh Bhardwaj and Shri Sandeep Bhardwaj, in their Complaint bearing Number 04/05/2024, have prayed for Compensation for mental agony and hardship and further for litigation costs. To shed light on the issue whether compensation can be granted by the Authority, the Hon'ble Apex Court in the case of M/s. Newtech Promoters and Developers Pvt. Ltd. vs. State of UP & Ors. (CIVIL APPEAL NO(S). 6745–6749 OF 2021) has categorically held, "when it comes to a question of seeking the relief of adjudging compensation and interest thereon under Sections 12, 14, 18, and 19, the adjudicating officer exclusively has the power to determine, keeping in view the collective reading of Section 71 read with Section 72 of the Act." It is thus clear that the Authority does not have the power to grant the relief of compensation under Section 18 of the Act. As per Section 71, the complainants may approach the Adjudicating Officer for the grant of compensation. In view of the same, we are not considering the relief as to compensation in the present order.
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:
“18.Return of amount and compensation. — (1) If the promoter fails to complete or is unable to give possession of an apartment, plot or building, —
(i)in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or
(ii)due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason, he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot, building, as the case may be, with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act:
Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be prescribed.
(3)If the promoter fails to discharge any other obligations imposed on him under this Act or the rules or regulations made thereunder or in accordance with the terms and conditions of the agreement for sale, he shall be liable to pay such compensation to the allottees, in the manner as provided under this Act.”
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.
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.
The doctrine of promissory estoppel, as authoritatively laid down by the Hon'ble Supreme Court in M.P. Sugar Mills v. State of U.P. [(1979) 2 SCC 409], provides that where one party has, by its words or conduct, made a clear and unambiguous representation to another party intending it to be acted upon, and the other party has acted upon it to its detriment, the party making the representation is estopped from resiling from it. The principle operates as a rule of equity and justice.
In the present case, the Promoter 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:
a. The allotment of Apartment A-1601 would be transferred in the names of Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj.
b. Third-party payments from Sh. Rajesh Bhardwaj would be accepted towards the cost of Apartment A-1601.
c. Upon allotment of new Apartment, A-802, all payments made towards Apartment A-1601 would be fully adjusted against the cost of Apartment A-802.
d. The new Apartment A-802 would have the same amenities, facilities, EWS quarter and four covered car parking spaces as Apartment A-1601.
Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj acted upon each of these representations to their significant financial detriment, paying monies totalling Rs. 72,49,905/- to the Promoter directly, and also paying Rs. 5,25,000/- to the initial allottee. The Promoter is therefore estopped from resiling from these representations or from taking any position inconsistent therewith.
Crucially, the Promoter's authorised Channel Partner Ms. Puja Singh Sangwan was the very instrument through whom both the original allotment of A-1601 and the subsequent representations to Sh. Rajesh Bhardwaj and Sh. Sandeep 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 a RERA-registered real estate agent and an authorised Channel Partner of the Promoter under a Channel Partner Agreement that entitled her to receive commissions. The Promoter cannot disown the representations made by its own authorised agent to induce Sh. Rajesh Bhardwaj to part with his money, particularly when the Promoter accepted the payments so made and deposited them in its own bank accounts.
The Promoter's fraudulent conduct is further compounded by the fact that it accepted Demand Drafts drawn in its favour, which clearly bore the name of Sh. Rajesh Bhardwaj as the purchaser. The Promoter was thus fully aware that the Demand Drafts were issued by a third party and not by the original allottee Mr. Rajesh Kumar Wadhwa, and yet it encashed those Demand Drafts in its own bank account. Having accepted the payments and having paid commission of Rs. 53,84,171/- to Ms. Puja Singh Sangwan as channel partner a payment that is triggered only upon completion of a valid booking the Promoter had irrevocably acknowledged Sh. Rajesh Bhardwaj as the true allottee of Apartment A-1601. The Promoter cannot now turn around and deny the very transaction it had facilitated.
This Authority also takes note of the fact that as of the date of this order, both Apartment A-1601 and Apartment A-802 are effectively lying vacant and unallotted, with the Promoter holding substantial monies of the allottees against both units. The Promoter has thus, by its unlawful termination of both allotments, achieved a state of unjust enrichment whereby it holds the apartments free of encumbrance while retaining the monies of the allottees. To judicially sanction such a course of conduct would be a violation of the fundamental principles of equity, good conscience and justice. The Promoter's conduct constitutes a failure to discharge its obligations under the RERA Act and under the terms and conditions of the Agreements for Sale, within the meaning of Section 18(3) of the Act.
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.
In the light of the above discussion and findings, this Authority issues the following directions in each of the three complaints:
A. Complaint No. 16/12/2023 (M/s Brilliant Etoile Private Limited v. Rajesh Kumar Wadhwa):
a. This Authority has found that the cancellation of the allotment of Apartment A-1601 in favour of Mr. Rajesh Kumar Wadhwa vide Termination Notice dated 06.10.2023 is legally invalid and unsustainable.
b. Complaint No. 16/12/2023 filed by the Promoter against Mr. Rajesh Kumar Wadhwa is accordingly dismissed in its entirety. The Promoter's termination of Apartment A-1601 is set aside and declared void ab initio. The allotment of Apartment A-1601 continues to subsist in the name of Ms. Puja Singh Sangwan as the transferee of allotment rights pursuant to the MOU dated 22.02.2021. The Promoter is directed to forthwith recognize Sh. Rajesh Kumar Wadhwa as the allottee of Apartment A-1601 in its records and to deal with him accordingly in respect of all future demands and proceedings relating to Apartment A-1601.
c. The prayers of the Promoter for direction to the Sub-Registrar to cancel the Agreement for Sale dated 20.10.2020 and for a direction to Mr. Rajesh Kumar Wadhwa to hand over original documents and not to raise any claim are rejected for the reasons stated in the analysis of Issue No. III above.
B. Complaint No. 17/12/2023 (M/s Brilliant Etoile Private Limited v. Rajesh Bhardwaj & Sandeep Bhardwaj)
a. This Authority has found that the cancellation of the allotment of Apartment A-802 in favour of Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj vide Termination Notice dated 09.10.2023 is likewise legally invalid and unsustainable.
b. Complaint No. 17/12/2023 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-802 is set aside and declared void ab initio. The allotment of Apartment A-802 in favour of Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj shall continue to subsist, subject to the relief granted in Complaint No. 04/05/2024 as detailed below.
c. The prayers of the Promoter for direction to the Sub-Registrar to cancel the Agreement for Sale dated 16.03.2022 and for a direction to Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj to hand over original documents and not to raise any claim are rejected for the reasons stated in the analysis of Issue No. III above.
C. Complaint No. 04/05/2024 (Rajesh Bhardwaj & Sandeep Bhardwaj v. M/s Brilliant Etoile Private Limited & Others)
a. Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj, the Complainants in Complaint No. 04/05/2024, have opted for a refund of all amounts paid by them. The Promoter is held liable to refund the following amounts:
A sum of Rs. 29,73,061/- (Rupees Twenty-Nine Lakh Seventy-Three Thousand and Sixty-One only), being the amount paid directly to the Promoter by way of Demand Draft No. 515465 dated 23.03.2021 towards erstwhile Apartment No. A-1601;
A sum of Rs. 10,40,000/- (Rupees Ten Lakh Forty Thousand only), being the booking amount paid via RTGS dated 31.08.2021 towards Apartment No. A-802;
A sum of Rs. 27,11,844/- (Rupees Twenty-Seven Lakh Eleven Thousand Eight Hundred and Forty-Four only), being the amount paid to the Promoter by way of Demand Draft No. 516821 dated 11.03.2022 towards Apartment No. A-802; and;
The aggregate of the amounts directly received by the Promoter from the Complainants thus comes to Rs. 67,24,905/- (Rupees Sixty-Seven Lakh Twenty-Four Thousand Nine Hundred and Five only).
b. The Promoter is directed to refund the aggregate amount of Rs. 67,24,905/-(Rupees Sixty-Seven Lakh Twenty-Four Thousand Nine Hundred and Five only), being the sum directly received by it from Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj, along with interest at the rate of 10.75% per annum from the date of each respective payment till the date of actual realization, within 45 (forty-five) days from the date of this order.
c. It is clarified that the sum of Rs. 5,25,000/- paid by Sh. Rajesh Bhardwaj to Mr. Rajesh Kumar Wadhwa, the initial allottee of Apartment No. A-1601, is a private transaction between those parties and does not involve the Promoter. Disputes arising from such private arrangements, and any claim for recovery of the said amount is left open to be settled amicably or pursued before a competent civil court.
It is further directed that upon payment of the full refund amount with interest as directed above, the allotment of Apartment No. A-802 in favour of Sh. Rajesh Bhardwaj and Sh. Sandeep Bhardwaj shall stand extinguished, and the Promoter shall thereupon be free to deal with Apartment No. A-802 as an unencumbered unit.
Ordered accordingly.
No orders as to cost.
File be consigned to record room.