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Judgment
This order is going to decide an application under section 37 & 35(2) of the RERD Act, 2016 read with section 151 of Civil procedure code moved on behalf of respondent for the rejection of complaint.
It is stated in the application that complainant has wrongly approached the Adjudicating officer for seeking relief of payment of interest under section 18(1) (a) of Real Estate (Regulation and Development) Act, 2016 and his complaint is not tenable in view of the judgment of Newtech Promoters and Developers Pvt. Ltd. Vs State of UP & Others. 2021 SCC online 1044 and para 86 of the judgement is mentioned, which read as under:
86.From the scheme of the Act of which a detailed reference has been made and taking note of power of adjudication delineated with the regulatory Authority and adjudicating officer, what finally culls out is that although the Act indicates the distinct expressions like ‘refund’, ‘interest’, ‘penalty’ and ‘compensation’, a conjoint reading of Sections 18 and 19 clearly manifests that when it comes to refund of the amount, and interest on the refund amount, or directing payment of interest for delayed delivery of possession, or penalty and interest thereon, it is the regulatory Authority which has the power to examine and determine the outcome of a complaint. At the same time, when it comes to a question of seeking the relief of adjudging compensation and interest thereon under Sections 12, 14, 18 and 19, the Adjudicating Officer exclusively has the power to determine, keeping in view the collective reading of Section 71 read with section 72 of the Act. If the adjudication under Sections 12, 14, 18 and 19 other than compensation as envisaged, if extended to the Adjudicating Officer as prayed that, in our view, may intend to expand the ambit scope of the powers and functions of the Adjudicating Officer under Section 71 and that would be against the mandate of the Act 2016.
It is further stated that jurisdiction with regard to payment of interest for delayed delivery of possession vest with the Authority/Rera and as such this forum i.e. Adjudicating Officer cannot grant the relief of interest for delayed delivery of possession. It is prayed that complaint seeking said relief is not maintainable and liable to be rejected at the threshold.
On the other hand, ld. counsel for of the complainant has filed written submission and judgments in support of their contentions.
During the course of arguments, the submission is made on behalf of the applicant/respondent that application was moved for placing on record “Terms of Settlement” before NCDRC in another matter pending between La Tropicana Residents Association Vs Parsvnath Landmark Developers Pvt Ltd and name of the complainant appears at serial no. 156 in the list of Members of LTRA.
It is argued on behalf of the respondent that order passed by NCDRC is applicable to all the parties and matter was disposed of in terms of “MOU” vide order dated 30.04.2019. It is further argued that suit no. CS(OS)2030/2014 titled La Tropicana Residents Association vs Parsvnath Landmark Developers Pvt Ltd was also disposed of in terms of the “MOU” by High Court of Delhi vide order dt. 13.08.2019.
It is further argued that since the terms of “MOU” were not adhere to by the developer and subsequently amended “MOU” was executed on 27.10.2020. It is further argued that NCDRC had passed another order dated 28.10.2020 that amended agreement shall be binding on all the allottees of La Tropicana Project.
It is further argued that complainant had also moved a SLP No. 2314/2021 against the order dt. 28.10.2020 passed by NCDRC but Hon’ble Supreme Court was not inclined to interfere with the said order and petition was disposed of on 09.04.2021. It is further argued that liberty was granted to file review petition before the NCDRC, however, no review was filed and the order passed by NCDRC is not only binding upon the members of La Tropicana Residents Association but also to all the allottees of project.
It is further argued on behalf of the respondent that power to grant the interest for delayed delivery of possession lies with Real Estate Regulatory Authority, therefore, complaint seeking said relief under form “N” before the Adjudicating Officer is not maintainable and liable to be rejected at the threshold.
On the other hand, it is submitted on behalf of the complainant that possession of flat was handed over to him vide letter dt. 31.10.2019 during the pendency of complaint no. 22/2018 under Form “M”, which was disposed of by the Authority/Rera vide order dt. 09.12.2019. It is further submitted that liberty was granted by the Authority to file complaint under Form “N” before the Adjudicating Officer with regard to claims of compensation etc, and thereafter complaint before this forum was filed under the provisions of RERD Act, 2016.
It is argued on behalf of the complainant that application for the rejection is moved just to delay the matter and liable to be dismissed and relied upon the following judgments:
M3M India Pvt. Ltd. And Another Versus Dr. Dinesh Sharma and Another 2019 SCC Online Del 9949.
Laureate Buildwell Pvt. Ltd. Versus Charanjeet Singh 2021 SCC Online SC 479.
Pioneer Urban Land and Infrastructure Limited & Anr. Versus Union of India & Ors. Writ Petition (Civil) No. 43 of 2019 in the Supreme Court of India.
Having heard the arguments on behalf of the parties.
The main contention made on behalf of the complainant is that respondent had failed to hand over the possession of flat within time, which was purchased by him from erstwhile allottee namely Sh. Harmohan Singh on 07.03.2016. It is worthwhile to note here that possession of flat was handed over to the complainant vide letter dt. 31.10.2019 as mentioned in the order dt. 09.12.2019 passed by the Authority/Rera in complaint no. 22/2018 under Form-"M".
It is worthwhile to note here that liberty was granted by the Authority to file complaint in Form "N' before the Adjudicating Officer and said order dt. 09.12.2019 passed by the Authority is reproduced here as under:
“Counsel for the Respondent has filed an Affidavit annexing various documents relating to communications between Respondent and the Complainant regarding handing over of possession for ‘Fit-out’ purpose. The Counsel for the Complainant has confirmed that the ‘fit-out possession’ was indeed given to the Complainant vide letter dated 31.10.2019. Since main relief sought by the Complainant before this Authority was to direct the Respondent “to hand over the possession of the flat completed in all respect within a fixed time frame” and the complainant has received the possession for ‘fit-out’ purpose, nothing remains in this complaint.
The complaint is accordingly disposed of.
The Complainant is at liberty to file a complaint in Form N before the Adjudicating Officer at an appropriate stage with regard to claims of compensation etc. if he wishes so to do. The Respondent is at liberty to place its entire defense before the Adjudicating Officer. This Authority is not expressing any views on the merits of the case”.
Reference has also been made upon section 31 of The Real Estate Regulation and Development Act, 2016, which is as under:
Section 31: Filing of complaints with the Authority or
the adjudicating officer. —(1) 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.
RERA is an Act to provide protection to the interest of homebuyer/purchaser and from the scheme of the Act 2016, it is apparent that main object of the Act is to provide the buyer for better mechanism through which cheaper, easier, expeditious and effective redressal is made available to them. It is a matter of record that complainant had purchased the flat from erstwhile allottee namely Sh. Harmohan Singh on 07.03.2016 as per the endorsement form and the possession of flat was handed over to him by the respondent vide letter dt 31.10.2019 during the pendency of complaint no. 22/2018 under Form ‘M’. It is also a matter of record that liberty was given to file a complaint in Form “N” before this forum for compensation vide order dt 09.12.2019 passed by the Authority/Rera.
Section-31 of the RERD Act, 2016 clearly provides that any aggrieved person can file a complaint before the Authority or the Adjudicating Officer, as the case may be, for any violation or contravention of the provisions of the Act or rules and regulations made thereunder against any promoter, allottees or real estate agent, as the case may be. It is worthwhile to mention here that complainant is seeking various reliefs in the instant complaint including the compensation, which can be granted by this forum i.e. Adjudicating officer.
In the facts & circumstances of the present matter, it can be said that cause of action is evident from the facts mentioned and complainant being an allottee is within his right to approach the Authority/Adjudicating officer for the redressal of his grievances. Therefore, this forum is of the view that complaint under section-31 read with section 71 of the Act filed by complainant is maintainable under the provisions of RERD, Act, 2016 and cannot be rejected at the threshold.
Accordingly, an application u/s 37 & 35(2) of RERD Act, 2016 read with section 151 of C.P.C moved on behalf of respondent for the rejection of complaint is hereby dismissed and stands disposed of.