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Judgment
A complaint was filed in Form ‘M’ on 02.02.2022 by Mrs. Shipra Sarkar (hereinafter referred to as ‘Complainant’) stating that in the year 2016 she 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.
The Complainant signed membership application form dated 09.02.2016 for 3 BHK flat + storeroom having built up area of 1900 sq. ft. The Respondents vide Welcome Letter dated 16.02.2016 allotted unit no. E-2101 to the Complainant in their project. The Respondents have acknowledged receipt of Rs.18,24,000/- (Rupees eighteen lakh twenty four thousand only) deposited by the Complainant with them.
The Complainant 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 6 years from the date of booking. Therefore, she seeks refund of amount deposited by her with the Respondents along with interest.
A preliminary hearing in the case was held on 21.04.2022 and notice of complaint was issued to the Respondents 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 2016, 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 have every intention to develop the said project but owing to the government policies, procedural and administrative factors which are beyond the control of the Respondents, they could not obtain 'Land Transfer Certificate' from DDA which is a pre-requisite for developing the project.
As soon as the Respondents realized that the project is delayed, an option was given to the investors to either stay invested and or to await the requisite clearances from the competent authorities or opt for a refund. The Complainant opted for refund.The Respondents admitted that they have accepted payments from the Complainant and issued receipts to the complainant.
The Respondents have refunded part payment of Rs. 5,06,665/- to the Complainant in compliance of MoU executed on 11.09.2020 with the Respondents.
The Respondents are ready to refund the remaining principal amount of Rs. 13,17,335/- to the Complainant with a bonafide intention on a monthly equitable instalments.
Analysis and Consideration:
A perusal of the documents available on record shows that the Complainant have issued two cheques dated 15.02.2016 and 15.03.2016 acknowledging amount of Rs. 9,12,000/- (Rupees nine lakh twelve thousand only) each. Hence, payment of Rs. 18,24,000/- (eighteen lakh twenty four thousand only) by the Complainant to the Respondents is a recorded fact.
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 Complainant intends to withdraw from the said project on the ground of delay and is 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 Complainant but also misled her 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 Complainant. It is a pure simple case of giving part information and cheating the members of public.
The Respondents have submitted in their reply that they have refunded part payment of Rs. 5,06,665/- to the Complainants in compliance of Settlement Agreement executed and are ready to refund the remaining principal amount of Rs. 13,17,324/-. Ld. Counsel for Complainant did not deny this fact.
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 Complainant is entitled to get the refund of the amount paid by her 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 the aforesaid, we direct the Respondents M/s Antriskh Engicon Pvt. Ltd. to refund the balance principal amount of Rs. 13,17,335/- (thirteen lakh seventeen thousand three hundred and thirty five only) deposited with them (by the Complainant) to the Complainant, Mrs. Shipra Sarkar 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. 5,06,665/- till date of its refund.
The case is disposed of accordingly.
No orders as to costs.