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Judgment
A complaint was filed in Form ‘M’ on 13.05.2022 by Sh. Avtar Krishan Tickoo (hereinafter referred to as ‘Complainant’) stating that in the year 2015, she approached “M/s Antriksh Engicon Pvt. Ltd.” (hereinafter referred to as ‘Respondents’) for booking an apartment in their project “Antriksh Urban Greek” (hereinafter referred to as ‘project’), L-Zone, Dwarka, Delhi.
The Complainant booked a 3 BHK flat no.C-301 on 3rd floor with an area measuring 1300 sq. feet. (approx.) with the basic sale price of Rs. 4950 per sq. ft. on 10.07.2015. The same is seen confirmed through a welcome letter dated 10.07.20156 issued by the Respondents.
The Respondents have acknowledged receipts of Rs.9,65,250/- (Rupees Nine Lakhs Sixty Five Thousand Two Hundred Fifty Only) deposited by the Complainant towards the allotted flat.
However, the Respondents have already refunded Rs. 3,50,000/- out of the principal amount to the Complainant, therefore, the Complainant is seeking refund of remaining amount i.e., Rs. 6,15,250/- along with interest.
The Complainant submitted that the Respondents have failed to start the construction of the project and deliver the possession of the said flat even after lapse of more than 8 years from the date of booking. Therefore, he seeks refund of amount deposited by him with the Respondents along with interest.
A preliminary hearing in the case was held on 17.08.2022 and a notice of complaint was issued to the Respondents on the same date.
The matter was heard on 27.10.2022, 11.01.2023 and 15.03.2023. The Respondents filed reply to the complaint on 26.10.2022. The case was reserved for orders on 15.03.2023.
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-1, New Delhi’. The Complainant approached the Respondents for booking a residential apartment in the said project and accordingly, he 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, they could not obtain the land transfer certificate, which is a prerequisite for developing the project. As soon as they realized that the project is delayed, they 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 Complainant opted for refund out of his own free will.
The Respondents have refunded part deposit of Rs.3,50,000/- to the Complainant and are willing to refund the balance amount of Rs.6,15,250/- (Rupees Six Lakhs Fifteen Thousand Two Hundred Fifty Only) to the Complainant with a bonafide intention in monthly equitable instalments.
Analysis and Consideration:
A perusal of the documents available on record shows that the Respondents have issued three receipts dated 07.07.2015, 12.07.2015 and 28.11.2015 acknowledging deposits of Rs.2,50,000/-, Rs.3,93,500/-, and Rs.3,21,750/- respectively. Hence, payment of Rs.9,65,250/- (Rupees Nine Lakhs Sixty Five Thousand Two Hundred Fifty Only) by the Complainant to the Respondents is a recorded fact.
The Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as “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 sector in the long run. The RE (RD) Act, 2016 is a special law enacted to address issues in the real estate sector. All dispute between homebuyers/allottees and promoters/developers relating to any real estate project, covered under the RE (RD) Act of 2016, can be raised before the concerned Real Estate Regulatory Authority (RERA). Section 79 of the RE (RD) Act, 2016 even bars the jurisdiction of civil courts to entertain any suit or proceeding in respect of any matter which this Authority is empowered by or under the Act to determine. Moreover, Section 88 of RE (RD) Act, 2016 says that provisions of this Act shall have an overriding effect on anything inconsistent in any other law in force.
The statement of objects and reasons of RE (RD) Act, 2016 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 casts a duty upon the promoter to provide correct and updated information to allottees regarding the project, which 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 him by concealing information that they did not have any license or approval from the concerned authorities for construction of project. They also did not disclose that no housing project can come up on agricultural land and also 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 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).
The Respondents have submitted in their reply that they have refunded part payment of Rs.3,50,000/- to the Complainant and are ready to refund the remaining principal amount of Rs.6,15,250/-. The Complainant has also admitted that same fact in para 10 of his complaint.
The Complainant has also sought relief of compensation for unfair trade practice, mental harassment, and legal expenses from this Authority. The Authority is of the view that the Complainant is at liberty to approach the appropriate authority for seeking compensation, i.e., Adjudicating Officer under sections 31 & 72 of the RE (RD) Act, 2016.
On perusal of the documents on record and submissions made by the parties, the Authority is of view that the Respondents are in contravention of the sections 18 and 12 of RE (RD) Act, 2016. And, therefore, the Complainant is entitled to get the refund of the amount paid by him 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 National Capital Territory of Delhi Real Estate (Regulation and Development) (General) Rules, 2016.
In the light of aforesaid, we direct the Respondents, M/s Antriskh Engicon Pvt. Ltd. to refund the balance amount deposited by the Complainant with the Respondents, Rs.6,15,250/- (Rupees Six Lakhs Fifteen Thousand Two Hundred Fifty Only) to the Complainant (Sh. Avtar Krishan Tickoo) within 45 days of issuance of this order along with interest at the rate of 10.75% per annum (MCLR+2%) from the date of payment of each sum until the date of its actual return.
The case is disposed of accordingly.
No orders as to costs.