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Judgment
A complaint was filed in FORM M on 17.2.2021 by Sh. Paras Arora, with facts as under:
The Complainant on 26.01.2003 had booked shop space no. SS-40 on the second floor of “Aditya Mega Mall” – a project of M/s Aggarwal Associates, located at plot no. 9D, Central Business District (East) Delhi, having super covered area of 274.38 sq.ft. @ Rs.2900 per sq.ft., at a total cost amounting to Rs.7,95,700/-. In addition, allied charges were to be paid as per actual subject to maximum of 10% of the total cost i.e. Rs.7,95,700/-. Thus, the total amount to be paid including allied charges for shop space no.SS – 40 was Rs. 8,75,270/-.
The payments were linked to various stages of construction. The Complainant paid a sum of Rs.9,05,915/- in different installments as per demand. A sum of Rs.30645/- was paid in excess to meet the registration expenses or legitimate demands.
When the Complainant requested the Respondents to handover the possession and execute the sale deed, they refused to so and demanded Rs. 3 lakh on various counts.
A complaint was filed by the Complainant on 03.8.2012 with State Consumer Dispute Redressal Commission, New Delhi. However, in view of section 71 of the Real Estate (Regulation & Development) Act, 2016 (hereinafter referred as “RERD Act, 2016”) the Complainant withdrew the said complaint on 4.2.2019 with the permission of the Commission and filed a complaint before us under section 31 of RERD Act, 2016 read with Rule 33(1) of National Capital Territory of Delhi Real Estate (Regulation and Development) (General) Rule 2016, seeking relief for possession of unit booked.
The preliminary hearing of the present complaint was held on 31.3.2021 and a notice to the Respondents, M/s Aggarwal Associates was issued vide order dated 29.7.2021.
Shri R.P Arora, Ld. Counsel entered appearance on behalf of the Complainant and Shri Sunil Dhawan, Authorized Representative appeared on behalf of the Respondents.
The Respondents filed their reply on 16.9.2021. The rejoinder by the Complainant was filed on 24.9.2021. After final hearing on 30.11.2021, the Authority directed both the parties to file their written submissions by 10.12.2021. The written submission on behalf of the Complainant was filed on 19.11.2021 and on behalf of the Respondents on 20.11.2021.
For the sake of convenience, the arguments and submission made on behalf of both the parties are summarized as under:
A. Submissions made on behalf of the Respondents
The Respondents had developed the commercial/shopping complex at plot no. 9D, Central Business District (East), Shahdara, Delhi 110032, popularly known as "Aditya Mega Mall" and thereafter, applied for Occupancy Certificate on 28.03.2006. The Delhi Development Authority (DDA) issued Occupancy Certificate on 08.03.2007 well before the commencement and applicability of RERD Act, 2016 and therefore the project is not required to be registered and the present complaint does not come under the purview of the Authority.
ii) The present complaint has been filed just to misuse the process of law and to engage the Respondents in frivolous and prolonged litigation, therefore it deserves dismissal.
iii) The Complainant had filed an appeal bearing no FA-796/2012 before the Hon'ble State Consumer Disputes Redressal Commission, New Delhi against the order dated 03.08.2012 passed by the Hon'ble District Consumer Disputes Redressal Forum (East), Delhi. The Complainant at the stage of final arguments in the appeal proceedings, filed a withdrawal application dated 04.02.2019 and accordingly, the Hon’ble State Commission allowed the withdrawal application of the Complainant vide order dated 04.02.2019.
iv) The Complainant has now moved the present complaint after a lapse of more than two years from the date of order of Hon'ble State Commission, which shows the lackadaisical approach of the complainant and makes the complaint time barred.
The present complaint has been filed by the Complainant only on the basis of proviso to section 71 of RERD Act, 2016. It is clear that such proviso applies only to the complaints pending before the Consumer Disputes Redressal Forum or the Consumer Disputes Redressal Commission or the National Consumer Disputes Redressal Commission, established under Section 9 of the Consumer Protection Act, 1986.
vi) In the present matter, the complaint of the Complainant had already been adjudicated by the Hon'ble District Consumer Disputes Redressal Forum vide their Order dated 03.08.2012, the information of which has been withheld by the Complainant from the Authority.
vii) By way of entering into Allotment Agreement, the Complainant had agreed to pay basic cost, allied charges equivalent to 10% of basic cost, interest free maintenance security, freehold charges, vacant land tax, sinking fund, electricity connection charges and electricity meter charges, maintenance charges, interest on delayed payments and service tax/CST from time to time as per the terms and conditions of the allotment agreement. The Complainant mischievously hid this information regarding the charges from the Authority. To mislead, the Complainant has only presented selected pages of the Allotment Agreement, before the Authority which shows the malafide intentions of the Complainant.
B. Submissions made on behalf of the Complainant
It is nowhere mentioned in Section 31 of the RERD Act, 2016 that it is applicable only for the registered projects, rather the said section makes it abundantly clear that a complaint pertaining to violation of the provisions of the RERD Act, 2016 or the rules and regulations thereunder, may be filed by any aggrieved person in respect of any real estate project as per the definition given in section 2 (zn) of RERD Act, 2016. In support, that the complaint is maintainable, reliance is placed on several judgments passed by Real Estate Appellate Tribunal established in other States and online articles.
ii) The crux of these decisions is that a complaint can be filed in cases where completion certificate has been obtained prior to the enforcement and applicability of RERD Act, 2016.
iii) The Complainant denies any concealment of facts as alleged by the Respondents in filing the present complaint. At the time of filing the complaint, it has been disclosed that the amounts claimed by the Respondents are all illegal and thus the builder has withheld possession without any just cause.
iv) As permitted by proviso to section 71 of the RERD Act, 2016 the Complainant withdrew the complaint from the State Consumer Disputes Redressal Commission Delhi with permission of the Hon’ble Commission and filed the present complaint with RERA Delhi.
We have heard the submissions made by both the parties and perused the material available on record. The limited issues for consideration before us are whether the present application in form of complaint under section 31 read with section 71 of the RERD Act, 2016 is maintainable or not. If yes, whether the complainant is entitled to the relief of possession as sought by him.
It is clear from the records that the District Consumer Disputes Redressal Forum vide its order dated 3.8.2012 had dismissed the Complainant’s complaint holding that “this commercial space has been booked by the complainant for commercial purposes, he cannot be considered a consumer within the definition of Section 2(d)(i) of CPA. In these circumstances the complaint is not maintainable. The complainant may take appropriate steps for redressal of his grievance against OP.”
Thereafter, by order dated 4.2.2019, the State Consumer Disputes Redressal Commission had permitted the Complainant to withdraw his appeal to enable him to take up the case before RERA, Delhi. Against this backdrop, the present complaint was filed before us on 17.2.21.
Section 31 of RERD Act, 2016 clearly states that, “any aggrieved person may file a complaint with the Authority or the adjudicating officer, as the case may be, for any violation or contravention of the provisions of this Act or the rules and regulations made thereunder against any promoter allottee or real estate agent, as the case may be.”
It is an admitted fact that the Respondents had obtained the Occupation/Completion Certificate for the subject project much before the Real Estate (Regulation and Development) Act 2016 came into being. Therefore, the complaint does not come under the purview of this Authority. However, since the Respondents have agreed before us to give possession of shop space no.SS -40 to the Complainant on payment of amount that is due, we give an option to the Complainant to take possession of shop space no.SS - 40 after paying the outstanding dues to the Respondents within 45 days.
The Real Estate (Regulation and Development) Act, 2016 which came into effect on 1.5.2017 provides the rate of interest to be paid as MCLR +2%. We suggest that the Respondents may consider, if a request is made by the Complainant, to reduce the rate of interest to 9% (i.e., MCLR+2%) with effect from 1.5.2017. We clarify that this is only our suggestion and we are not interpreting any contract which has been signed between the Complainant and the Respondents. In case the Complainant clears all outstanding dues, the Respondents shall execute the necessary sale deed and handover the possession of shop space no.SS-40 to the Complainant immediately thereafter, in any case not later than 21 days from the date the outstanding dues are cleared by the Complainant.
The complaint is disposed of accordingly.
No Orders as to cost.