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Judgment
A complaint was filed in FORM ‘M’ on 17.06.2021 by Mrs. Namrata Sekhri (hereinafter referred to as “Complainant”) stating that in the year 2008, she booked a unit in the commercial project “Central Square” (hereinafter referred to as “project”) at Bara Hindu Rao, Delhi of M/s Purearth Infrastructure Limited (hereinafter referred to as “Respondents”).
A perusal of records revealed that though the unit was booked by Mrs. Prerna Malhotra and Mrs. Namrata Sekhri, the complaint seeking refund was made only by Mrs. Namrata Sekhri. The Complainant subsequently filed an affidavit of Mrs. Prerna Malhotra w/o Sh. Sunil Malhotra stating that she has no objection if the complaint filed by Mrs. Namrata Sekhri is tried and decided by this Authority.
An “Agreement for Sale” was executed between the Complainant and the Respondents for unit no. P2-4016 in the aforementioned project at basic sale price of Rs. 83,24,000/- (Rupees Eighty Three Lakh Twenty Four Thousand Only) on 18.03.2008. The Complainant made payment of Rs.83,77,800/- (Rupees Eighty Three Lakh Seventy Seven Thousand and Eight Hundred Only) towards the sale consideration.
Due to the delay in handing over of the possession of the unit, the Complainant now wishes to withdraw from the project and sought refund of the amount deposited with the Respondents along with interest.
A preliminary hearing in the case was held on 24.08.2021 and a notice of complaint was issued to the Respondents on 08.02.2022.
The matter was subsequently heard on 08.02.2022, 15.03.2022, 10.05.2022, 02.08.2022, 22.09.2022, 22.11.2022 and 13.12.2022. The Respondents filed their reply to the complaint on 27.07.2022 and an affidavit for filing additional documents on 29.11.2022.
The Complainant filed an application under sections 36 and 37 of the Real Estate (Regulation and Development) Act, 2016 [hereinafter referred to as the “RE (RD) Act, 2016” or “Act”] read with section 151 of CPC, 1908 praying to set aside the notice dated 09.09.2022 issued by the Respondents. As per the notice, if the Complainant failed to make a payment of Rs.24,00,000/- (Rupees Twenty Lakh Only) within the specified time period then the agreement would be terminated. The application was disposed of by directing the Respondents to not take any coercive action against the Complainant.
We have heard the arguments and perused written submissions filed by the Respondents and other records. For the sake of convenience, the arguments made on behalf of Respondents are summarized as under:
The RE (RD) Act, 2016 is inapplicable to the present case as industrial projects are outside the purview of the RE (RD) Act, 2016.
The project land is industrial in nature as per Master Plan of Delhi 1962, 2001 and 2021.
After trifurcation of MCD and subject property came under North Delhi Municipal Corporation (North DMC). This caused delay in the entire process and North DMC issued the Completion Certificate for the project only on 03.12.2016.
The RE (RD) Act, 2016 and the rules framed thereunder shall be applicable to the projects which had not been completed till the date of enactment of the Act and the Rules. The project in question was completed in the year 2011 and obtained Completion Certificate on 03.12.2016 i.e., much prior to the date of commencement of the Act.
Soon after getting the Completion Certificate, the Respondents on 07.04.2017 offered possession of the unit to the Complainant. However, the Complainant for reasons best known to her has not come forward to take possession of the unit.
The Authority observes that in order to resolve the issue of applicability of RE (RD) Act, 2016 to the present complaint, it is necessary to decide the jurisdiction of the subject matter and restrict itself from adjudicating other issues in the complaint. Therefore, the issue of maintainability of the complaint is adjudicated only.
Analysis and consideration:
The first issue for consideration before us is whether the Respondents were required to register their project under the RE (RD) Act, 2016 with this Authority or not.
Section 3 (1) of the RE (RD) Act, 2016 provides as follows:
Section 3: Prior registration of real estate project with Real Estate Regulatory Authority.
3.(1) “No promoter shall advertise, market, book, sell or offer for sale, or invite persons 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:
Provided further that if the Authority thinks necessary, in the interest of allottees, for projects which are developed beyond the planning area but with the requisite permission of the local authority, it may, by order, direct the promoter of such project to register with the Authority, and the provisions of this Act or the rules and regulations made thereunder, shall apply to such projects from that stage of registration.
(2)Notwithstanding anything contained in sub-section (1), no registration of the real estate project shall be required—
(a)where the area of land proposed to be developed does not exceed five hundred square meters or the number of apartments proposed to be developed does not exceed eight inclusive of all phases:
Provided that, if the appropriate Government considers it necessary, it may, reduce the threshold below five hundred square meters or eight apartments, as the case may be, inclusive of all phases, for exemption from registration under this Act;
(b)where the promoter has received completion certificate for a real estate project prior to commencement of this Act;
(c)for the purpose of renovation or repair or re-development which does not involve marketing, advertising selling or new allotment of any apartment, plot or building, as the case may be, under the real estate project.
Explanation.—For the purpose of this section, where the real estate project is to be developed in phases, every such phase shall be considered a stand alone real estate project, and the promoter shall obtain registration under this Act for each phase separately.”
In the present complaint, the Respondents submitted that they obtained the Completion Certificate from the competent authority i.e., North DMC on 03.12.2016 i.e., much prior to the date of commencement of the Act i.e., 01.05.2017 and therefore, did not require any registration.
The Ld. Counsel for the Complainant argued that the Completion Certificate dated 03.12.2016 is for ‘Block B’ and not ‘Plaza-2’. Therefore, the second issue for consideration before us is whether the Competition Certificate has been issued for ‘Plaza-2’ or ‘Block B’ and whether ‘Plaza-2’ and ‘Block B’ refer to same block of project.
As per the contention of Complainant, the booked unit was allotted in ‘Plaza-2’ of the said project as mentioned in “Agreement for Sale” and not in ‘Block-B’. The Completion Certificate dated 03.12.2016 issued by the North DMC is for the portion of premises called ‘Block – B’ and not ‘Plaza-2’. In simple words, Plaza-2 and Block B of the project are not same.
In this regard, the Respondents submitted that they obtained Competition Certificate in respect of ‘Paza-2’ on 03.12.2016 and ‘Block-B’ and Plaza-2 are same. They submitted that the Plazas were numbered as Plaza 1,2,3,4 only for the purpose of booking and they have registered several sale deeds with other allottees wherein it has been clarified that ‘Plaza-2’, in fact, is the Block B.
In support of their claim, they have placed on record few documents comprising copies of sanctioned plans, sale deed of Ms. Shobha Mathur, and a copy of the letter issued by the office of Electrical Inspector, Labour Department, NCT of Delhi.
A perusal of sale deed of Ms. Shobha Mathur, executed on 19.10.2022 and filed by the Respondents, depict that the allotted unit is situated in ‘Plaza-2’(Block B) at Central Square Complex, Delhi. The relevant para of the sale deed is reproduced below for ready reference:
“AND WHEREAS, the Vendor had allotted Unit No.P2-3026 situated in Plaza-2 (Block B) at the Central Square Complex, 20 Manohar Lal Khurana Marg, Bara Hindu Rao, Delhi- 110006 to the Vendee(s) and has agreed to execute this Sale Deed so as to convey clear and marketable title in favour of the Vendee(s), in respect of the portion/Unit under sale.”
We also note that letter no. ED.3(20892)/2013/1633 dated 26.02.2016 issued by the Inspector of Lifts, Office of the Electrical Inspector, Labour Department, NCT of Delhi shows subject of the letter as follows:
“Annual inspection of Lift(s) No. ED.3(20892)/2013 installed at:-“Central Square” Plaza II, Block B”, Left hand side of segment-I, Manohar Lal Khurana Marg, Delhi-110006”
This letter shows that a lift inspection was done by the concerned officials and no objection was given to the usage of the lifts and term “Plaza-2” and “Block B” is used to denote same building.
Considering the above-mentioned documents, it can be concluded that the ‘Plaza-2’ and ‘Block B’ are same and denote to the same portion of the premises mentioned in the Completion Certificate dated 03.12.2016. As the Completion Certificate was issued for Block B (or Plaza-II) on 03.12.2016, i.e., much prior to the date of commencement of the Act (i.e.,01.05.2017), the project does not come under the purview of the RE (RD) Act, 2016. Therefore, the complaint is disposed of accordingly.
No orders as to costs.
File be consigned to Record Room.