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Judgment
A complaint was filed in Form ‘M’ on 03.02.2022 by Mr. Vikas Thukral (hereinafter referred to as ‘Complainant’) stating that in the year 2015 he approached “M/s Antriksh Engicon Pvt. Limited” (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.
From perusal of records, it was seen that while complaint in Form ‘M’ was filed only by Mr. Vikas Thukral, the Application for membership was seen signed by Smt. Rashmi Thukral as co-applicant. Considering this, the Authority vide order dated 13.07.2022 allowed Smt. Rashmi Thukral to be co-complainant on receipt of a request on an affidavit to this effect Ld. Counsel for respondents had no objection to make Mrs. Rashmi Thukral as Co-Complainant.
The Complainants signed membership application form dated 03.05.2015 for 3 BHK flat having built up area of 1300 sq. ft. on 14th floor. The Respondents vide Welcome Letter dated 12.06.2015 confirmed their membership and welcomed them as a new resident of proposed “Antriksh Urban Greek” project. The Respondents have acknowledged receipt of Rs.9,07,920/- (Rupees Nine Lakh Seven Thousand Nine Hundred and Twenty Only) deposited by the Complainants, with them.
The Complainants submitted that the Respondents have failed to start the construction of the apartment or rather the project and deliver the possession of the said flat even after the lapse of more than 7 years from the date of booking. Therefore, they seek refund of amount deposited by them with the Respondents along with @18% interest per annum.
A preliminary hearing in the case was held on 21.04.2022 and notice of Complaint to the Respondents was issued on the same date.
The matter was heard on 13.07.2022 and 06.09.2022. The Respondents filed reply to the complaint on 21.06.2022.
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 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, it 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 refund out of his own free will.
The Respondent has refunded part payment of Rs. 75,000/- to the Complainant in compliance of Settlement Agreement executed.
The Respondent is ready to refund the remaining principal amount of Rs. 8,04,543/- to the Complainants with a bonafide intention in monthly equitable instalments.
Analysis and Consideration:
A perusal of the documents available on record shows that the Complainants have issued three demand drafts dated 30.05.2015, 10.05.2015 and 05.05.2015 acknowledging receipts of Rs. 3,02,640/- (Rupees Three Lakh Two Thousand Six Hundred and Forty only), Rs. 4,05,280/- (Rupees Four Lakh Five Thousand Two Hundred and Eighty only) and Rs. 2,00,000/- (Rupees Two Lakh only) respectively. Hence, payment of Rs. 9,07,920/- (Nine Lakh Seven Thousand Nine Hundred and Twenty Rupees Only) by the Complainants to the Respondents is a recorded fact.
The Respondents have submitted in their reply that they have refunded part payment of Rs. 75,000/- to the Complainants in compliance of Settlement Agreement executed and are ready to refund the remaining principal amount of Rs. 8,04,543/-. Though the Respondents have not filed any Settlement Agreement, but this specific averment regarding payment of Rs. 75,000/- after the Settlement was not denied by Complainant. Ld. Counsel for Complainant on 06.09.2022 requested for refund of balance amount with interest. Thus, there is no denial by Complainant that a settlement was arrived at between parties and Rs. 75,000/- was refunded.
The statement of objects and reasons of RE (RD) Act, 20161 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 Complainants intend to withdraw from the said project on the ground of delay 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 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 cast 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 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 the risks associated with the project to the members including the Complainants. It is a pure simple case of giving part information and cheating the members of public.
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 Authorities are 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 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 NCT of Delhi RE(RD) (General) Rules, 20162.
In the light of aforesaid, we direct the Respondents M/s Antriskh Engicon Pvt. Ltd. to refund the balance of the principal amount of Rs. 8,32,920/- (Eight Lakh Thirty two Thousand Nine Hundred and Twenty only) deposited with them (by the Complainants) to the Complainants, Mr. Vikas Thukral and Mrs. Rashmi Thukral 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 shall also pay same interest on already refunded amount of Rs. 75,000/- till date of its refund.
The case is disposed of accordingly.
No orders as to costs.