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Judgment
A complaint was filed in Form ‘M’ on 06.01.2022 by Mr. Rakesh Kumar Tanwar (hereinafter referred to as ‘Complainant’) stating that in the year 2015 he approached “M/s Antriksh Engicon Pvt. Ltd.” (hereinafter referred to as ‘Respondents’) for booking an apartment in their project “Antriksh Urban Greek, Phase-I” (hereinafter referred to as ‘project’) in L-Zone, Dwarka, Delhi.
The Complainant applied for membership of the society under buy-back scheme and booked a 3BHK flat having built-up area of 1600 sq. ft. The Respondents vide Welcome Letter dated 13.06.2015 confirmed his membership and welcomed him as a new resident of proposed project. The Respondents have acknowledged receipt of Rs.15,36,000/- (Rupees Fifteen Lakh Thirty Six Thousand Only) deposited by the Complainant.
The Complainant submitted that the Respondents have failed to start the construction of the project and deliver the possession of the said flat even after lapse of more than 8 years from the date of booking. Therefore, he seeks refund of amount deposited by him with the Respondents along with interest.
A preliminary hearing in the case was held on 09.03.2022 and a notice to the Respondents was issued on the same date.
The matter was heard on 27.04.2022, 19.07.2022, 08.09.2022 and 06.10.2022. The Respondents filed reply to the complaint along with an application for rejection of complaint under Section 151 of Civil Procedure Code, 1908 on 08.07.2022. In that application, the Respondents submitted that they have entered into a Memorandum of Understanding (hereinafter referred to as MoU) 16.06.2015 with the Complainant.
We have heard the arguments and perused the records. For the sake of convenience, the arguments and submissions made on behalf of Respondents are summarized as under:
The Respondents have been in the business of the construction and development for more than a decade and have successfully delivered projects in the NCR region and are developing many projects which are near completion in accordance with law.
In the year 2015, the Respondents launched project namely ‘Antriksh Urban Greek, Phase-I’. The Complainant approached the Respondents for booking a residential apartment in the said project and accordingly he signed and executed booking application form out of his own free will
The Respondents had every intention to develop the said project but owing to the government policies and procedural and administrative delays beyond the control of the Respondents, the Respondents could not obtain the Land Transfer Certificate, which is a prerequisite for developing the project. As soon as the Respondents realized that the project is delayed, they gave an option to its existing investors to either stay invested and await the requisite clearances from the competent authorities or, in an alternative opt for a refund. The Complainant opted for refund out of his own free will.
The Respondents have refunded part payment of Rs. 9,42,029/- to the Complainant in compliance of Memorandum of Understanding executed on 16.06.2015 with the Respondents.
The Respondents are ready to refund the remaining principal amount of Rs. 5,93,971/- to the Complainant with a bonafide intention in monthly equitable instalments.
Analysis and Consideration:
A perusal of the documents available on record shows that the Complainant had issued two cheques dated 31.05.2015 and 16.06.2015 for Rs. 7,68,000/- (Rupees Seven Lakh Sixty Eight Thousand only) each in favour of Respondents. Hence, payment of Rs. 15,36,000/- (Fifteen Lakh Thirty Six Thousand Only) by the Complainant to the Respondents is a recorded fact.
The Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as “RE (RD) Act, 2016”) was enacted to induct professionalism and standardization in the real estate sector, thus paving way for accelerated growth and investments in the long run. The RE (RD) Act, 2016 is a special law enacted to address issues in the real estate sector. All dispute between homebuyers/allottees and promoters/developers relating to any real estate project, covered under the RE (RD) Act of 2016, can be raised before the concerned Real Estate Regulatory Authority (RERA). Section 79 of the RE (RD) Act, 2016 even bars the jurisdiction of civil courts to entertain any suit or proceeding in respect of any matter which this Authority is empowered by or under the Act to determine. Moreover, Section 88 of RE (RD) Act, 2016 says that provisions of this Act shall have an overriding effect on anything inconsistent in any other law in force.
The statement of objects and reasons of RE (RD) Act, 2016 attempts to balance the interests of consumers and promoters by imposing certain responsibilities on both. It seeks to establish symmetry of information between the promoter and purchaser, enhance transparency of contractual conditions, set minimum standards of accountability and a fast-track dispute resolution mechanism.
An allottee/home buyer can seek refund of amount invested with promoter under section 18 of RE (RD) Act, 2016, if the promoter fails to complete project by the date specified in agreement to sale with interest including compensation and also under section 12 of RE (RD) Act, 2016 if he/she was misled by any information furnished by promoter with regard to the project either through advertisement or otherwise.
In the present complaint, the Complainant intends to withdraw from the said project on the ground of delay and is seeking refund of the amount paid to Respondents in respect of subject unit under section 18(1) of the RE (RD) Act, 2016 which reads as under:
“Section 18. Return of amount and compensation. -
18(1). If the promoter fails to complete or is unable to give possession of an apartment, plot, or building, —
(a). in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or
(b). 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.”
Section 12 of the RE (RD) Act, 2016 casts a duty upon the promoter to provide correct and updated information to allottees regarding the project, which reads as under:
“Section 12. Obligations of promoter regarding veracity of the advertisement or prospectus.-
Where any person makes an advance or a deposit on the basis of the information contained in the notice advertisement or prospectus, or on the basis of any model apartment, plot or building, as the case may be, and sustains any loss or damage by reason of any incorrect, false statement included therein, he shall be compensated by the promoter in the manner as provided under this Act:
Provided that if the person affected by such incorrect, false statement contained in the notice, advertisement or prospectus, or the model apartment, plot or building, as the case may be, intends to withdraw from the proposed project, he shall be returned his entire investment along with interest at such rate as may be prescribed and the compensation in the manner provided under this Act.”
The Respondents, in complete disregard to their duties, not only failed to furnish correct information to the Complainant but also misled him at the time of allotment itself by concealing information that they do not have any license or approval from the concerned authorities for construction of project. They also did not disclose that no housing project can come up on agricultural land and also risks associated with the project to the members including the Complainant. It is a pure simple case of giving part information and cheating the members of public.
During hearing of the case, Ld. Counsel for the Complainant informed that his client has received refund of Rs. 9,42,029/- (Rupees Nine Lakh Forty Two Thousands Twenty Nine only) till date, out of total deposit of Rs. 15,36,000/- (Rupees Fifteen Lakh Thirty Six Thousands only) and an amount of Rs. 5,93,971/- (Rupees Five Lakh Ninety Three Thousands Nine Hundred Seventy One only) is yet to be paid by the Respondents from the principal amount. He further submitted that the Demand Draft dated 29.09.2022 for an amount of Rs. 5,93,971/- offered by the Respondents was not accepted by his client as he wanted total refund along with interest.
The Respondents have admitted that the Complainant had deposited Rs.15,36,000/-and Rs.9,42,029/- have already been refunded to the Complainant under MoU dated 16.06.2015. Surprisingly, this MoU dated 16.06.2015 is written on stamp paper issued on 27.06.2015. The Respondents did not honour the MoU whose execution is doubtful. After lapse of so many years the Respodents tendered the Demand Draft of Rs. 5,93,971/- to the Complainant on 22.09.2022 which was not accepted.
The law is well settled that the allottees/homebuyers hold an unqualified right to seek refund of the amount with interest at such rate as may be prescribed in this behalf. A conscious decision has been taken by the legislature to cast an obligation upon the promoter to refund the amount on demand along with interest at rate prescribed. It has also been held through the recent judgments of the Hon’ble Supreme Court that the Regulatory Authorities have exclusive jurisdiction to direct refund of the amount, and interest on the refund amount to the allottees. (Vide: Imperia Structures Ltd. Vs. Anil Patni and Another, 2020 (10) SCC 783, and Newtech Promoters and Developers Pvt. Ltd. v. State of UP And Ors. LL 2021 SC 641).
On perusal of the documents on record and submissions made by the parties, the Authority is of view that the Respondents are in contravention of the sections 18 and 12 of RE (RD) Act, 2016. And, therefore, the Complainant is entitled to get the refund of the amount paid by him alongwith interest at prescribed rate @ 10% p.a. (i.e., MCLR plus 2%) as per provisions of sections 18 and 12 of RE (RD) Act, 2016 read with rule 15 of the National Capital Territory of Delhi Real Estate (Regulation and Development) (General) Rules, 2016.
In the light of aforesaid, we direct the Respondents, M/s Antriskh Engicon Pvt. Ltd. to refund the balance of the principal amount, Rs. 05,93,971/- (Five Lakh Ninety Three Thousand Nine Hundred Seventy One only) that remains deposited with them to the Complainant, Mr. Rakesh Kumar Tanwar within 45 days of issuance of this order along with interest at the rate of 10% per annum (MCLR+2%) from the date of payment of each sum until the date of its actual return, and also interest at the same rate on already refunded amount of Rs. 9,42,029/- till date of its refund.
The case is disposed of accordingly.
No orders as to costs.