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Judgment
A complaint was filed in FORM ‘M’ on 15.03.2021 by Mrs. Shakuntla Goyal (hereinafter referred as “Complainant”) stating that in the year 2015 she approached M/s Antriksh Infratech Pvt. Ltd. (hereinafter referred as “Respondents”) for booking an apartment in their project namely “Antriksh Urban Greek” in L-Zone Dwarka, Delhi.
The Respondents allotted her unit no C-1704, with super area admeasuring 1550 sqft. vide their allotment letter dated 18.07.2015 at the total sale consideration of Rs. 77,50,000/- (Rupees seventy seven lakh fifty thousand only) out of which she made a payment of Rs. 15,50,000/- (Rupees fifteen lakh fifty thousand only) to the Respondents.
The Complainant submitted that since, the Respondents did not have any license/approvals from the competent authorities for constructing the project, she sought refund of amount deposited with Respondents along with interest.
Adv. Mohd. Faris, appeared on behalf of the Complainant and Adv. Kajal Dewan, appeared on behalf of the Respondents.
A preliminary hearing in the case was held on 13.04.2021 and a notice of complaint issued to Respondents on the same date for filing reply. The Respondents filed their reply on 11.01.2022.
We have heard the arguments of both the parties and perused the records.
For the sake of convenience, the arguments and submission made on behalf of Respondents are summarized as under:
The contents of the present complaint apart from being grossly incorrect (except the one which form matter of record) are ill inspired and have a murky foundation in as much as the Complainant is using the present complaint to extort money from the Respondents under the garb of the present complaint. The Complainant after filing of the present complaint approached the Respondents for an amicable settlement. The Respondents engaged into numerous rounds of discussions with the Complainant to effectuate an amicable settlement. The Complainant on the contrary kept deploying extortive tactics under the garb of the present complaint to extort obscene sums of money from the Respondents.
The Respondents have accepted payments from the Complainant and issued receipts which is clearly indicative of the bonafides of the Respondents.
At the time of launching of the project in question i.e., “Antriksh Urban Greek”, the RE(RD) Act, 2016* was not in existence and the said Act has come into force prospectively and not retrospectively applicable.
The Respondents are amenable to a settlement and the matter may be referred for mediation where the Complainant cannot deploy extortive tactics and matter can be settled on merits by an impartial authority.
The Respondents never had any intention to either mislead or cheat the Complainant or any investor for that matter. The Complainant is in the knowledge of the fact that the administrative delays beyond the control of the Respondents, had a cascading effect and that resulted in delay of project. The Respondents have also placed on record the copies of official gazette published by the Delhi Development Authority (DDA) which clearly corroborates the submissions made by the Respondents.
The Respondents have every intention to develop the project but owing to the government policies, procedural and administrative delays beyond their control, they could not obtain the Land from DDA which is a prerequisite for starting 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 or await the requisite clearances fro m the competent authority or, in an alternative opt for a refund. At the relevant point the Complainant opted to stay invested and did not opt for the refund.
Bonafides of the Respondents are clear by virtue of the fact that much before the filing of the present complaint, they gave an option for refund to the Complainant. Respondents have already refunded Rs. 5,73,330/- and are willing to refund the pending balance amount of Rs. 9,76,670/-.
Analysis and Consideration:
A perusal of the documents available on record shows that the Respondents issued two receipts dated 11.07.2015 and 18.07.2015 acknowledging deposits of Rs. 10,000/-(Ten Thousand Only) and Rs. 15,40,000/- (Rupees Fifteen lakhs forty thousand only). Hence the payment of Rs. 15,50,000/- (Fifteen lakh fifty thousand only) by the Complainant to the Respondents is admitted.
We note that Respondents refunded Rs. 5,73,330/- (Rupees Five lakh seventy three thousand three hundred thirty only) to the Complainant as per mutual settlement agreement dt. 21-11-2019. The Complainant has now prayed for refund of remaining amount that is Rs.9,76,670/- (Rupees Nine lakh seventy six thousand six hundred seventy Only) along with interest on already refunded amount.
The 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 act aims to bring transparency in the transactions between promoters and home buyers/investors and safeguard interest of all stake holders.
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 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 has stated that she withdrew from the said project on the ground of inordinate delay and is now seeking refund of amount not paid by Respondents as per mutual settlement agreement dated 21-11-2019 that is Rs. 9,76,670/- (Rupees Nine Lakh Seventy Six Thousand Six Hundred Seventy Only) along with interest in respect of subject unit under section 18 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 current status of the project and the likely date by which the project will be completed. 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 and that no housing project can be developed on Agriculture Land. They also did not disclose the risks associated with the project to the society 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 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).
In the light of the aforesaid, we consider it appropriate to direct the Respondents “Antriksh Infratech Pvt. Ltd.” to refund the remaining amount of Rs. 09,76,670/-(Nine Lakh Seventy Six Thousand Six Hundred Seventy Only) to the Complainant 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.
Since, respondent failed to honour the mutual settlement agreement dated 21-11-2019, in toto, we order them to pay 10 % interest (MCLR+ 2%) on the refunded amount of Rs. 5,73,330/- (Rupees Five Lakh Seventy Three Thousand Three Hundred Thirty) also. The interest shall be payable from the date of each payment till date of actual return.
The case is disposed of accordingly.
No orders as to costs.