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Judgment
A complaint was filed in Form ‘M’ on 16.09.2022 by Sh. Pijush Chakraborty and Sh. Nirmal Kumar Chakraborty (hereinafter referred to as ‘Complainants’) stating that in the year 2018, they approached “M/s Antriksh Engicon Pvt. Ltd.” (hereinafter referred to as “Respondents”) for booking an apartment in their project namely “Antriksh Urban Greek, Phase-2” (hereinafter referred to as “project”) in L-Zone, Dwarka, Delhi.
The Complainants booked a 2 BHK flat having unit no. A-1704 with area of 900 sq. ft., Tower A on 17th floor in the subject project by submitting an Expression of Interest and paid a sum of Rs.9,00,000/- (Rupees Nine Lakh Only) to the Respondents.
The Respondents vide Welcome Letter dated 30.04.2018 confirmed the membership of the Complainants and welcomed them as new resident of proposed project.
The Complainants submitted that the Respondents have failed to start construction of the project and deliver possession of the said flat even after lapse of more than 4 years from the date of booking. Therefore, they seek refund of amount deposited by them with the Respondents along with interest.
A preliminary hearing in the case was held on 10.10.2022. Notice of complaint was sent to the Respondents on same date.
The matter was heard on 14.12.2022, 09.03.2023, 17.05.2023, 02.08.2023, 19.09.2023, and 07.11.2023. The Respondents filed their reply on 17.05.2023 and the Complainants filed rejoinder on 19.09.2023. The case was reserved for orders on 07.11.2023.
The arguments and submissions made on behalf of the 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-2’. The Complainants approached the Respondents for booking a residential apartment in the said project and accordingly they signed and executed booking application form out of their 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 was 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 Complainants opted for refund out of their own free will.
The Respondents are ready to refund the entire principal amount of Rs.9,00,000/- (Rupees Nine Lakh Only) to the Complainants with a bonafide intention in monthly equitable instalments.
Analysis and Consideration:
We have heard the arguments and perused the records.
A perusal of the documents available on record shows that the Respondents have issued two receipts dated 29.04.2018 and 12.05.2018 acknowledging deposits of Rs.4,50,000/- and Rs.4,50,000/- respectively. Hence, payment of Rs.9,00,000/-(Rupees Nine Lakh Only) by the Complainants 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 promoters and purchasers, enhance transparency of contractual conditions, set minimum standards of accountability and establish a fast-track dispute resolution mechanism.
Under section 18 of RE (RD) Act, 2016, an allottee/house buyer can seek refund of amount invested/deposited with the promoter, along with interest and compensation, if the promoter fails to complete the project by the date specified in Agreement to Sale, and also under section 12 of the RE (RD) Act, 2016, if he/she was misled by any information furnished by the promoter, with regard to the project, either through advertisement or otherwise.
In the present complaint, the Complainants intend to withdraw from the said project on the ground of delay and are seeking refund of balance 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 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. They also did not disclose the risks associated with the project to the members including the Complainants. The promoters gave part information and cheated the members of public at large.
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 sections 18 and 12 of RE (RD) Act, 2016. Therefore, the Complainants are entitled to get the refund of the balance amount paid by them alongwith interest at prescribed rate of 10.75% 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.
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. Civil Appeal No(s). 6745-6749 of 2021, 2021 (11) ADJ 280).
In the light of aforesaid, we direct the Respondents, M/s Antriskh Engicon Pvt. Ltd. to refund entire principal amount of Rs.9,00,000/- (Rupees Nine Lakh Only), deposited by the Complainants with them to the Complainants, Sh. Pijush Chakraborty and Sh. Nirmal Kumar Chakraborty 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.