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Judgment
A complaint was filed in Form ‘M’ on 04.10.2023 by Mr. Samantak Chakrabarti & Ms. Amrita Chakrabarti (hereinafter referred to as ‘Complainants’) stating that on 05.07.2015, they booked an apartment in the project “Antriksh Urban Greek” (hereinafter referred to as “project”) in L-Zone, Dwarka, Delhi promoted by “M/s Antriksh Group” (hereinafter referred to as “Respondents”) as well as “M/s A.J.N. Infrastructure Pvt. Ltd.”
The Complainants submitted that they booked a flat in the subject project and paid a sum of Rs 12,71,400/- (Rupees Twelve Lakh Seventy-One Thousand Four Hundred Only) to the Respondents.
The Complainants have placed on record copies of Welcome Letter dated 15.07.2015 and receipts which clearly shows that the Respondents collected money for constructing flats in their project “Antriksh Urban Greek”.
The Complainants submitted that the project has come to a complete halt. Due to the project being in halt and no progress being made, the Complainants lost faith in the ability of the Respondents to complete the project and therefore sent a Legal Notice dated 26.07.2023 to the Respondents cancelling the unit and seeking refund. The Complainants submitted that since the project has been indefinitely stalled and the Respondents have failed to commence or complete construction, they are entitled to withdraw from the project and seek refund of the amount paid to Respondents.
A preliminary hearing in the case was held on 19.02.2024. Notice of complaint was sent to the Respondents on 16.07.2024 via registered post and on 19.07.2024 via e-mail. The Respondents filed their reply on 22.10.2024.
We have heard the arguments and perused the records. For the sake of convenience, the arguments and submissions made on behalf of the Respondents are summarized as under:
The Respondents have been in the business of 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 a project namely ‘Antriksh Urban Greek’. The Complainants approached the Respondents for booking a residential apartment in the said project and accordingly they signed and executed booking application form out of their 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 was a prerequisite for developing the project. As soon as the Respondents realized that the project was being 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 Complainants opted for a refund out of their own free will.
The Respondents submit that the Complainant has paid only an amount of Rs. 12,61,400/- (Rupees Twelve Lakh Sixty-One Thousand Four Hundred Only) as per the ledger of the Respondents, and the payment of Rs. 10,000/- (Rupees Ten Thousand Only) claimed by the Complainants has not been substantiated with any receipt duly acknowledged by the Respondents.
The Respondents deny that as per the booking of the unit, possession of the property was supposed to be handed over to the Complainants on or before 2020, and submit that the Complainants have utterly failed to substantiate this fact as no document annexed with the Complaint supports the said statement.
The Respondents submit that they are not liable under any section of the RE(RD) Act, 2016 as they had duly informed the Complainants regarding the non-development of the project and are still willing to refund the entire principal amount of Rs. 12,61,400/- on an equitable monthly installment basis.
In the interregnum, during the pendency of the proceedings, the Respondents filed an application dated 22.10.2024 under Order I Rule 10 of the Code of Civil Procedure, 1908, seeking deletion of M/s A.J.N. Infrastructure Pvt. Ltd. from the array of parties. The Respondents contended that the said entity has no legal existence and consequently, no relief can be claimed against it.
We have heard the final arguments of Ld. Counsels of both the parties and perused the records of the case.
Analysis and Consideration
At the threshold, it is necessary to address the application dated 22.10.2024 filed by the Respondents, M/s Antriksh Engicon Pvt. Ltd., under Order I Rule 10 CPC seeking deletion of M/s A.J.N. Infrastructure Pvt. Ltd. from the array of parties. Upon careful examination of the entire record, including the complaint, documentary evidence, and submissions made by both parties, it is evident that no material has been placed on record to establish that M/s A.J.N. Infrastructure Pvt. Ltd. is either a necessary party or a proper party to the present proceedings. The receipts issued for payments, the Welcome Letter, and all other relevant documents pertain solely to the Respondents in the case. There is no documentary evidence to suggest any role, liability, or involvement of M/s A.J.N. Infrastructure Pvt. Ltd. in the subject project or in the transaction between the parties. In view of the aforesaid, this Authority has not treated M/s A.J.N. Infrastructure Pvt. Ltd. as a party to these proceedings. Accordingly, the application filed by the Respondents, M/s Antriksh Engicon Pvt. Ltd. under Order I Rule 10 CPC dated 22.10.2024 for deletion of M/s A.J.N. Infrastructure Pvt. Ltd. from the array of parties stands disposed of in the aforesaid terms.
A perusal of the documents available on record shows that the Respondents have issued two receipts dated 15.07.2015 and 11.09.2015 acknowledging deposits of Rs. 6,25,700/- and Rs. 6,35,700/- respectively. Hence, the total payment of Rs 12,61,400/- (Rupees Twelve Lakh Sixty-One Thousand Four Hundred Only) by the Complainants to the Respondents is an admitted and a recorded fact.
The RE (RD) Act, 2016 has been enacted to induct professionalism and standardization in the real estate sector, paving the way for catalyzing investments and accelerating growth of the sector in the long run. To achieve these objectives, the Act created a Regulatory Authority to supervise the conception, initiation and completion of a real estate project. The RE (RD) Act, 2016 is a special law enacted to address issues in the real estate sector. Therefore, all disputes between homebuyers/allottees and promoters/developers relating to any real estate project covered under 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 jurisdiction of civil courts to entertain any suit or proceeding in respect of any matter which the Authority is empowered under the Act to determine. Moreover, section 89 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.
An exhaustive definition of "promoter" is provided under section 2(zk) of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as “RE (RD) Act, 2016 or Act”) which is reproduced below:
2.(zk) “promoter” means, -
i)a person who constructs or causes to be constructed an independent building or a building consisting of apartments, or converts an existing building or a part thereof into apartments, for the purpose of selling all or some of the apartments to other persons and includes his assignees; or
ii) a person who develops land into a project, whether or not the person also constructs structures on any of the plots, for the purpose of selling to other persons all or some of the plots in the said project, whether with or without structures thereon; or
iii) any development authority or any other public body in respect of allottees of-
(a)buildings or apartments, as the case may be, constructed by such authority or body on lands owned by them or placed at their disposal by the Government; or
(b)plots owned by such authority or body or placed at their disposal by the Government, for the purpose of selling all or some of the apartments or plots; or
iv) an apex State level co-operative housing finance society and a primary co-operative housing society which constructs apartments or buildings for its members or in respect of the allottees of such apartments or buildings; or
v)any other person who acts himself as a builder, coloniser, contractor, developer, estate developer or by any other name or claims to be acting as the holder of a power of attorney from the owner of the land on which the building or apartment is constructed or plot is developed for sale; or
vi) such other person who constructs any building or apartment for sale to the general public.
Explanation. - For the purposes of this clause, where the person who constructs or converts a building into apartments or develops a plot for sale and the persons who sells apartments or plots are different persons, both of them shall be deemed to be the promoters and shall be jointly liable as such for the functions and responsibilities specified, under this Act or the rules and regulations made thereunder;
The Respondents, thus, fall well within the definition of promoter and are therefore under all the obligations and liabilities of ‘promoter’ under the RE(RD) Act, 2016.
It must be appreciated that the statement of objects and reasons of RE(RD) Act, 2016 clearly states that the Act attempts to balance the interests of consumers and promoters by imposing certain responsibilities on both. It also 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/house 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 proposed project either through advertisement or otherwise.
In the present complaint, the Complainants intend to withdraw from the said project and are seeking refund of the amount paid to Respondents in respect of subject unit under section 18(1) of the RE(RD) Act, 2016 on account of delay 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. It 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 Complainants but also misled them by concealing information that their project cannot be completed well within the time limit given to the allottees.
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 Authority has 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 both the parties, the Authority is of view that the Respondents are in contravention of the sections 18 and 12 of RE (RD) Act, 2016. As such, the Complainants are entitled to get the refund of the amount paid by them along with the interest at prescribed rate @ 10.80% p.a. (i.e., MCLR plus 2%) as per provisions of section 18 and 12 of RE (RD) Act, 2016 read with Rule 15 of the NCT of Delhi RE(RD) (General) Rules, 20161.
With regard to the quantum of refund, while the Complainants have sought refund of Rs. 12,71,400/- (Rupees Twelve Lakh Seventy-One Thousand Four Hundred Only), the Respondents have admitted to receiving only Rs. 12,61,400/- (Rupees Twelve Lakh Sixty-One Thousand Four Hundred Only) as evidenced by their own ledger annexed as Annexure A with reply. The differential amount of Rs. 10,000/- (Rupees Ten Thousand Only) has been disputed by the Respondents on the ground that no receipt or acknowledgment exists for this payment. It is a settled principle of law that the burden of proof lies on the party who asserts a fact. In the instant case, the Complainants have failed to produce any documentary evidence such as receipt, acknowledgment, or bank statement to substantiate the payment of Rs. 10,000/- to the Respondents. In the absence of any evidence of payment of Rs. 10,000/-, this Authority is constrained to limit the refund to Rs. 12,61,400/- (Rupees Twelve Lakh Sixty-One Thousand Four Hundred Only), being the amount admitted by the Respondents and proved on record.
In the light of the aforesaid, we direct the Respondents, ‘M/s Antriksh Engicon Pvt. Ltd.’ to refund the entire amount of Rs 12,61,400/- (Rupees Twelve Lakh Sixty-One Thousand Four Hundred Only) to the Complainants i.e. Mr. Samantak Chakrabarti & Ms. Amrita Chakrabarti within 45 days of issuance of this order along with interest at the rate of 10.80% per annum (MCLR+2%) from the date of payment of each sum until the date of its actual return.
The case is disposed of accordingly.
No order as to costs.
Footnotes
- 1.The National Capital Territory of Delhi Real Estate (Regulation and Development) (General) Rules, 2016