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Judgment
The present complaint has been filed in Form 'M' on 29th January, 2021 by Ms. Ankita Chauhan (the Complainant) against M/s. Revanta Multistate Cooperative Group Housing Society Ltd. (the Respondents) seeking a refund of Rs.Rs.10,68,400/- (Rs.Ten lakh sixty eight thousand four hundred only) paid by her to the Respondents Society towards booking and other costs relating to a flat of 2BHK apartment with super area admeasuring 1175 sq. ft in their Project "Smart Residency" along with applicable interest as per Real Estate (Regulation and Development) Act, 2016 and Rules.
Brief facts of the case are that the Respondents had launched a project namely "Smart Residency" - a project of Revanta Multistate CGHS Ltd. (hereinafter referred as "Project") located in L Zone, near Dwarka, New Delhi being developed by the Respondent Society M/s. Revanta Multistate Cooperative Group Housing Society Ltd. and the Complainant booked a Flat of 2 BHK Apartment with super area admeasuring 1175 sq. ft. for the total cost of Rs.35,00,000/-. The Complainant made payments in four installments as under-
| Sr. No. | Date of Payment | Amount Paid by the Complainant |
|---|---|---|
| 1. | 13-01-2016 | 10,900/- |
| 2. | 13-01-2016 | 2,00,000/- |
| 3. | 13-01-2016 | 3,28,750/- |
| 4. | 02-04-2016 | 5,28,750/- |
| Total | 10,68,400/- | |
The Complainant thereafter filed the present complaint in (29th) January, 2021 and the main grievance of the Complainant is that Respondents assured to complete the project within 36 months but no communication regarding possession of property has been received from the Respondents.
Notice was issued to the Respondents on 09.03.2021 and reply was filed by the Respondents on 10.08.2021 and rejoinder was filed by Complainant on 06.09.2021 with a copy to the Respondents.
The Respondents in their reply denied that they are a project promoter and submitted that the Respondents is a society registered under Section 7 of the Multi State Cooperative Societies Act, 2002 on 02 June, 2014 by a Joint Secretary in the Department of Agriculture & Cooperation, Ministry of Agriculture, Government of India acting in his capacity as the Central Registrar of Cooperative Societies under the Multi State Cooperative Societies Act, 2002. The registration is valid for the NCT of Delhi and the state of Haryana subject to the terms and conditions laid down in the MSCS Act, 2002.
Respondents state in the reply that Respondents are a society registered with the Multistate Cooperative Societies Act, 2002. The refund of amount is sought mainly on the ground that till date even construction has not been initiated at the alleged proposed land of the said society of the Respondents. However, the land details of has already been submitted with DDA under Land Pooling Policy (LPP) under MPD-2021 .It is submitted that the main reason is that the Respondents had not been returned with any land by the concerned department/authorities under the scheme which was to be returned by DDA/Ministry of Urban Development. That the Respondents cannot be held liable for fault which had not been done by them .The present complaint may be rejected on this ground alone as the Society of the Respondents is registered with Multistate cooperative Society Act, 2002 and the Complainant may pursue his remedy before an appropriate forum.
Respondents states that complaint is hit by Section 84 of Multi State Cooperative Group Housing society and only laws of Multistate Cooperative Societies Act, 2002 and the same shall be applied in case of any dispute between the members of the Society. Furthermore, Section 84 of Multistate Cooperative Societies Act, 2002 makes it abundantly clear that the dispute between the parties was to be settled before the Arbitrator appointed under Central registrar and the decision of the said arbitrator shall be final and shall not be called in question in any court. The section 84 of Multistate Cooperative Societies Act, 2002 is as under:
"84. Reference of disputes.—
(1)Notwithstanding anything contained in any other law for the time being in force, if any dispute [other than a dispute regarding disciplinary action taken by a multi-State co-operative society against its paid employee or an industrial dispute as defined in clause (k) of section 2 of the Industrial Disputes Act, 1947 (14 of 1947)] touching the constitution, management or business of a multi-State co-operative society arises—
(a)Among members, past members and persons claiming through members, past members and deceased members, or
(b)between a member, past member and persons claiming through a member, past member or deceased member and the multi-State co-operative society, its board or any officer, agent or employee of the multi-State co-operative society or liquidator, past or present, or
(c)between the multi-State co-operative society or its board and any past board, any officer, agent or employee, or any past officer, past agent or past employee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the multi-State co-operative society, or
(d)between the multi-State co-operative society and any other multi-State co-operative society, between a multi-State co-operative society and liquidator of another multi-State co-operative society or between the liquidator of one multi-State co-operative society and the liquidator of another multi-State co-operative society, such dispute shall be referred to arbitration.
(2)For the purposes of sub-section (1), the following shall be deemed to be disputes touching the constitution, management or business of a multi-State co-operative society,
(a)a claim by the multi-State co-operative society for any debt or demand due to it from a member or the nominee, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not;
(b)a claim by a surety against the principal debtor where the multi-State co-operative society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor, whether such debt or demand is admitted or not;
(c)any dispute arising in connection with the election of any officer of a multi-State co-operative society namely:-
(3)If any question arises whether a dispute referred to arbitration under this section is or is not a dispute touching the constitution, management or business of a multi-State co-operative society, the decision thereon of the arbitrator shall be final and shall not be called in question in any court.
(4)Where a dispute has been referred to arbitration under subsection (1), the same shall be settled or decided by the arbitrator to be appointed by the Central Registrar.
(5)Save as otherwise provided under this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to all arbitration under this Act as if the proceedings for arbitration were referred for settlement or decision under the provisions of the Arbitration and Conciliation Act, 1996.
While denying the violation of any provisions of the Real Estate (Regulation and Development) Act, 2016, it is contended by the Respondents that the complaint is not maintainable. Respondents further submits that the complaint filed in Form-M for refund, interest & compensation is not maintainable as per Rule 33 of the NCT of Delhi RERD (General) Rules 2016 as the said Rule has limited jurisdiction and does not cover refund, interest and compensation and the same are under the purview of Adjudicating Officer's jurisdiction (Rule 34, Form N). Hence, in the light of aforesaid reasons and submission, the Respondents prayed for the dismissal of the complaint.
That there is no violation of any provisions of Real Estate (Regulation and Development) Act, 2016 in any manner, per se the present complaint is not maintainable before this Hon'ble Authority. Moreover, the complaint on Form M for refund of amount, compensation or interest is not maintainable before this Hon'ble Authority as per the provisions of Rule 33 of NCT of Delhi RERD (general) Rule, 2016.
Respondents states that it is pertinent to mention that the provisions of aforementioned Rule 33 has limited jurisdiction with regard to violation of RERD Act. It does not confer refund, interest, or compensation as they are under the purview of Adjudicating Officer under Rule 34/Form N.
Respondents submit that the Complainant became the member of the Respondents Society on 20.06.2016 and the provisions of RERD Act, 2016, cannot be applied retrospectively. The Complainant is the member of the Society much prior to the commencement of the said Act. Hence, there is no violation of the provisions of the Act.
Respondents submitted in reply that the transaction between the Complainant and the Respondents are based on membership of society and the present proceedings are barred under law as firstly for the reason that the provisions of the act in general are not applicable on the present transaction as was purely of membership under society, vis a vis which society shall apply under and firstly the remedy lies before the Central Registrar of Cooperative Society, secondly, the act has its own procedure of law, therefore, as per the act, remedy lies under the Arbitration & Conciliation Act, hence the present proceedings be dismissed for the aforesaid reason.
Respondents states that the Complainant has invested in the society which is formed under Land Pooling Policy MPD-2021, they were further aware that the Respondents have not been returned the land by the DDA/Ministry of Urban Development and the same is to be provided by the appropriate authority under the “Land Pooling Policy” and the obligations and liabilities of both the parties are defined under the Cooperative Societies Act, and since the land has not been returned by the appropriate authority to the Society till date and the adjudication of the same lies before the Central Registrar of Cooperative Society per se being competent to try and adjudicate the matter of contractual obligation and therefore this Hon’ble authority possess jurisdiction under RERD Act, is not competent to try and adjudicate such matter under law, thus, the present complaint is not maintainable.
Respondents states that the Complainant is a speculative investor who invested in a society and became member of the society being aware of the pros and cons of the investment and were duly aware of the requirement and obligations under the law and their rights and interest are duly covered and protected under the Multi State Cooperative Societies Act, 2002 and Central Registrar of Cooperative Society, for which reason, they should avail the remedy available with them under law by approaching the authority which have jurisdiction and hence, the present proceedings be dismissed.
Respondents in reply mention that the present matter is required to be referred to the Arbitrator as per the provisions of Multi State Cooperative Societies Act, 2002. It is further submitted that complicated questions of facts and law are involved in the complaint, which is against society, which are required to be decided by the Central Registrar. It is further stated that the delay in completion of the scheme is due to force majeure which are beyond the control of Respondents as the society is totally dependent upon the progressive actions from the competent authority.
Further Respondent states that the Complainant has not been able to pin point the date when the cause of Acton arose vis a vis which this Hon'ble Authority has to decide the date when the cause of action arose and under which provisions of law the relief is sought. In the absence of the same no cause is made out and therefore the complaint is ought to be dismissed on this ground alone and may please be dismissed.
In rejoinder, the Complainant submitted that the Complainant had booked a 2 BHK Flat with a super area admeasuring 1175sqft.in the project namely 'Smart Residency' situated at Smart City, L-Zone, Dwarka, New Delhi, on 13.1.2016, the promoter of the project is Respondent society i.e. M/s Revanta Multi State CGHS Ltd. and Complainant paid total amount of Rs.10, 68,400/- to Respondents. That the representative of Respondents society assured the Complainant that Respondents Society have purchased land and also has necessary approvals from the concern authority and project shall be completed within 36 months.
Complainant submitted that the Complainant had booked a flat and made the payment against the flat and not for procurement of the land. It is relevant to note that the Complainant had filled the application form printed by the Respondents and applied for the Category of flat of 2BHK+SQ(Servant quarter),this form also contains the round stamp of the Respondents society. It is also pertinent to mention here that, the officer of the Respondents Society have also shown the Registration Certificate dated 02-06-2014 of the Respondents Society to Complainant, as per this certificate, if Respondents Society does not procured land within six month from the date of registration i.e. 2-06-2014 the registration of society shall stand cancelled. Registration certificate contains below mention few relevant lines. “The area of operation of the society shall be confined to the state of Delhi and Haryana. The registration of the society is subjected to the related activities in any form. The society is registered with the stipulation that the society shall commence business in both the states and furnish evidence/documents regarding procurement of land within a period of six months from the date of registration. If land is not procured within the stipulated time, the registration shall stand cancelled”.
Complainant submitted that he waited around 36 month to get possession of the flat, but no communication regarding the possession of the flat has been received from the Respondents Society, when the Complainant enquired about the progress of the project, Complainant got shocked to know that Respondents have just collected money from customer and not done any work to the project, Complainant also came to know that the DDA also warned the public about the Fraudulent Societies, Promoters and Developers, who are doing fraud on the name of Land Pooling Policy. Complainant submitted that she had approached the Respondents and made several request through phones calls, physical meeting and emails/letters to refund the amount but Respondents had given only false assurance, due to regular follow up by the Complainant, on 22 January 2020 official of the Respondent assured the Complainant to refund the money in 6 installments and prepared a Memorandum of Understanding (MoU) and told that a copy of MoU shall be provided to Complainant after the signature of the Authorized person of Respondents, but neither a copy of MoU nor any payment was given to Complainant. It is also submitted that the action of the Respondents society shows that Respondents does not intend to return the Complainant's hard-earned money, despite more than six years have elapsed since the payment were made to the Respondents Society by the Complainant.
Complainant filed a written submission on 22.10.2021 and similar submission are made in rejoinder, she states that she wrote an email to the Respondents Society on 14.12.2020 and requested to refund the money as per MoU. Respondents replied that his accounts have been frozen by EOW and asked to attend the GBM of society but Respondents were not ready to refund the money of the Complainant.
Complainant submit that she has filed this complaint in Form 'M' on 29th January 2021, before this Authority, which has proper jurisdiction to adjudicate the complaint under the Real Estate (Regulation and Development) Act, 2016. Respondents society is covered within the meaning of the term "Promoter", as defined under section 2(zk) of the RERD Act, 2016 sub-clause (iv), same is mentioned below, "(iv) an apex state level co-operative housing finance society and a primary co-operative housing society which constructs apartments or building for its Member or in respect of the allottees of such apartments or buildings; or.. :"
It is pertinent to mention here that as per the registration certificate of the Respondent society, Respondent is a State level society and allowed to operate in two states i.e. Delhi and Haryana, hence Respondent society is covered under the Real Estate (Regulation and Development) Act, 2016.
Complainant states that at the time of arguments, the Respondent asserted that the Real Estate (Regulation and Development) Act, 2016, cannot be applied retrospectively. It is worth mentioning here, that Section 3(1) of the Real Estate (Regulation and Development) Act 2016, states as under:-
3(1) - "No promoter shall advertise, market, book, sell or offer to sale, or invite person to purchase in any manner any plot, apartment or building, as the case may be, in any real estate project or part of it, in any planning area, without registering the real estate project with the Real Estate Regulatory Authority established under this Act; Provided that projects that are ongoing on the date of commencement of this Act and for which the completion certificate has not been issued, the promoter shall make an application to the Authority for registration of the said project within a period of three months from the date of commencement of this Act."
As per above mentioned section, the "registration of the Respondents society with Real Estate Regulatory Authority was mandatory, since it was an ongoing project." Respondents society should be punished for non-registration of the ongoing housing project with the Real Estate Regulatory Authority.
Complainant states that the Section 59 of the Real Estate (Regulation and Development) Act, 2016 states as under:
"Section 59 (1) if any promoter contravenes the provisions of the section 3, he shall be liable to a penalty which may extend up to ten per cent, of the estimate cost of the real estate project as determined by the Authority.
(2)If any promoter does not comply with the orders, decisions or directions issued under sub-section (1) or continues to violate the provisions of section 3, he shall be punishable with imprisonment for a term which may extend upto three years or with fine which may extend up to a further ten per cent, of the estimated cost of the real estate project or with both."
As per the above mentioned section of the RERD Act 2016 the Respondents society should be punished for non-registration of this ongoing housing project.
Complainant states that the Respondent asserted that the remedy lies under the Arbitration & Conciliation Act, it is worth mentioning here, that the Complainant never signed any arbitration agreement.
Complainant states that the Hon’ble Supreme Court in the matter of, “Kolkata West International City Pvt. Ltd Vs Devasish Rudra” Civil Appeal No. 3182 of 2019 noted as below mentioned,
“A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund. In the above circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified.”
That the Hon’ble Supreme Court in the matter of, “M/S Laureate Buildwell Pvt. Ltd Vs Charanjeet Singh” (Civil Appeal No. 7042/2019), in para No.31, noted as below mentioned,
“In view of these considerations, this court is of the opinion that the per se bar to the relief of interest on refund, enunciated by the decision in Raje Ram (supra) which was applied in Wg. Commander Arifur Rehman (supra) cannot be considered good law. The nature and extent of relief, to which a subsequent purchaser can be entitled to, would be fact dependent. However, it cannot be said that a subsequent purchaser who steps into the shoes of an original allottees of a housing project in which the builder has not honored its commitment to deliver the flat within a stipulated time, cannot expect any unreasonable time, for the performance of the builder’s obligation. Such a conclusion would be arbitrary, given that there may be a large number possibly thousands of flat buyers, waiting for their promised flats or residences; they surely would be entitled to all reliefs under the Act. In such case, a purchaser who no doubt enters the picture later surely belongs to the same class. Further, the purchaser agrees to buy the flat with a reasonable expectation that delivery of possession would be in accordance within the bounds of the delayed timeline that he has knowledge of, at the time of purchase of the flat. Therefore, in the event the purchaser claims refund, on an assessment that she too can (like the original allottee) no longer wait, and face intolerable burdens, the equities would have to be molded. It would no doubt be fair to assume that present purchaser had knowledge of the delay. However, to attribute knowledge that such delay would continue indefinitely, based on an a priori assumption, would not be justified. The equities, in the opinion of this court, can properly be mounded by directing refund of the principal amounts, with interest @ 9%per annum from the date the builder acquired knowledge of the transfer, or acknowledged it."
The Complainant also relied upon the judgment pronounced by this Hon'ble Authority in "Complaint No. 64/2019 (Shri Sunny Sapen Vs Revanta Multistate CGHS Ltd.)" and "Complaint No. 59/2019 (Shri Kripa Shankar Singh Vs Revanta Multistate CGHS Ltd.)" as his case is also based upon similar facts.
Thereafter, the Respondents filed Written Submission on 26.10 2021, which are summarized as below:
A. Respondents are a society and has not been registered with RERA and Hon'ble Authority lacks jurisdiction as the RERD Act does not apply on the present project as held in the judgments titled as Neelkamal Suburban Realtors Vs. Union of India 2017 SCC Online Bom 9302 and Bikramjit Singh &ors. Vs. state of Punjab & Ors. B. Before seeking any relief against the Respondents in suit for recovery, the Complainant by virtue of provision of section 115 of Multistate Cooperative Societies Act puts an embargo for filling the present suit as the Complainant is not entitled to institute suit for any relief.
C. Respondent further submit that the complaint is defective and is liable to be dismissed for being hopelessly time barred under limitation as provided under Section 85 of the Multi State Cooperative Societies Act, 2002.
D. Respondent submits that Complainant has itself signed and enclosed the document along with complaint wherein Complainant after scrutinizing the documents has signed the said membership form along with Declaration Cum Expression of Interest wherein it has been expressed by the society about land pooling policy and the Complainant has agreed for the terms of land pooling policy. Respondents have already deposited the Land parcel before the concerned Authority but the same has not been re-allotted back to Respondents by the concerned Authorities till date.
E. Respondents further stated that it is pertinent to mention that case titled as Sunny aspen Vs. M/s Revanta Multi State Cooperative Society, Hon'ble authority pleased to pass order against the Respondents and allowed refund with interest to the Complainant. The same was brought to challenge before Appellate Tribunal and the same is still pending before the Court. Appellate Tribunal has already seized off with the same issue which is pending under adjudication of same question of Law. Hence, this Authority before passing any order may wait till the conclusion of said appeal. That Respondents submits that Supreme Court in the case of D.K. Trivedi & Sons and Others vs. State of Gujarat and Others 1986 Supreme Court Case 20 has held that;-
"83... in our opinion the course adopted by the high Court was not correct. If the High Court thought that the point raised by the Appellate was the same as pending in this Court, It ought to have stayed the hearing of this writ petition until this court disposed of the other matter.
F. That the Hon'ble High Court bench at Aurangabad in the case of Kishor s/o Bhiksasingh Rajput Vs. Preeti w/o Kishore Rajput Writ Petition No. 7502 of 2006 held that when a higher court is seized of a matter, the lower court ought to stay its hands away even when there is no stay order. The relevant para is reproduced as under:
"Normally, when this Court is ceased of the matter, it is expected of the subordinate courts to stay their hands away. It is difficult to understand as to what was an alarming urgency to proceed further and dismiss the petition when the learned judge of the Family Court was very well aware that the order dated 15th September 2006 was challenged before this Court by the present petitioner. No doubt, that the learned Family Court is right in observing that there was no stay by this Court. But as a matter of propriety and when the learned Judge was very much aware about pendency of the petition before this Court, the learned Judge ought to have stayed his hands away and waited till further orders to be passed by this Court. In that view of the matter, I am inclined to allow the petition".
The Respondents submitted that in the view of foregoing submission, the present complaint of the Complainant is devoid of any logic, substance and evidence and is liable for summarily rejection under Section 31 read with Section 71 of RERD, 2016 with accompanying prayer and cost in favour of Respondent.
I have heard the Ld. Counsels for both the parties and perused the material available on record. It is evident from the records that the Respondent had received a payment of Rs.10,68,400/- from the Complainant under their project.
Apparently, it is not the case of the Respondents that it is a registered society as such it cannot be considered as a promoter under the purview of the RERD, Act 2016, the limited argument of the Respondents is that the payment received is towards land cost only and not for the cost of flat/ apartment, hence the provisions of the Real Estate (Regulation & Development) Act, 2016 are not applicable.
The submission of the Respondents denying the applicability of the RERD Act is not only half-hearted but also lacks reasoning. Apart from stating the fact that the Respondent is registered under the Multi-State Cooperative Societies Act, the Ld. Counsel for the Respondent has failed to place on record any provision of the said Act or any other applicable law which exempts the applicability of RERD Act on such registered society.
A similar issue has already been decided by this Authority in Complaint No. 64/2019 titled as Shri Sunny Sapen v/s M/s. Revanta Multi State CGH Society Ltd. vide order dated 22.1.2021.
Further, from the reading of the RERD Act, it becomes abundantly clear that the Respondents Society is covered within the meaning of the term 'Promoter' as defined in Section 2(zk) of the Real Estate (Regulation and Development) Act, 2016, sub-clause (iv) which reads as under:-
2(zk) "... (iv) an apex State level co-operative housing finance society and a primary cooperative housing society which constructs apartments or buildings for its Members or in respect of the allottees of such apartments or buildings; or ".
The contention of the Respondents Society, that the complaint of the Complainant in Form M is not maintainable with this Authority, is accordingly not acceptable as the Respondents Society has itself placed a condition upon the members in the Declaration cum Expression of Interest that the project is subject to the provisions of the Real Estate (Regulation and Development) Act, 2016. Similarly, its contention that the adjudication of this case is not covered by the Real Estate (Regulation and Development) Act, 2016 and the NCT of Delhi RERD (General) Rules, 2016 is far-fetched.
That the Respondents Society has not provided any correct and updated information as to current status of the project and the likely date by which the project will be completed. The Respondent Society is duty bound to provide to all its members including the Complainant, correct and updated information with regard to the project in a transparent manner and failure to discharge these obligations attracts the provisions of Section 12 of the Act, which reads as under:-
“Section 12. 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”.
That the Respondents Society has prepared a common Membership Application Form for all its members. The membership application form duly filled in by the Complainant and bearing the stamp and signature on behalf of the Respondents Company has been filed by the Complainant which also provides details of the units booked by the members along with other details such as the payment schedule and annual operation charges etc.
On an overall reading of the contentions/submissions of the parties, the facts and circumstances of the case, I am of the considered opinion that the present case is squarely covered by the legal position held in the order dated 22.1.2021 of this Authority in Complaint no. 64/2019 Sunny Sapen vs. Revanta Multi State CGH Society Ltd.
In view of the above, I am of the considered opinion that M/s. Revanta Multistate Cooperative Group Housing Society Ltd. (the Respondent) must return the entire amount of Rs.10, 68,400/- (Rupees Ten lakh sixty eight thousand four hundred only) along with interest calculated at the rate of 9.00 (nine) per cent per annum (MCLR +2%) from the date of payment of each amount until the date of its actual return to Ms. Ankita Chauhan (Complainant) within 45 days of issuance of this order.
Ordered accordingly. 44.No orders as to costs.