AMAZING REAL ESTATE PVT LTD RERA Complaint

AMAZING REAL ESTATE PVT LTD RERA Complaint wherein cancellation unit was under challenge by Builder.

SAPNA V. M/S AMAZING REAL ESTATE PVT.LTD, 12^th October, 2020

Today we are going to talk about the case of Sapna v. M/s Amazing Real Estate Pvt. Ltd, 12^th October, 2020. The advocates for the complainant side was Shri. Varun Luthra and for the respondent it was Shri. Sanjeev Sharma. The case was happening through video conferencing and was held before Sh. Balbir Singh, Adjudicating officer, Real estate regulatory authority, Punjab.

Also Read- Things to remember when cancelling an apartment booking

The case was about the possession of the flat not given to the complainants as to get the possession they have paid substantial amount of money that have been told by respondent but then also the complainants didn’t get that and that’s why this present complaint was brought to the court. Now to state the facts, issue and judgements required for the case to understand it here it is:

The complainants wanted to purchase flat in project Joy Nest near aero city and paid an amount of 1,50,000/- on 1^st July, 2018, 2,08,100/- on 11^th July, 2018 and another amount of 50,000/- on 20^th July, 2018 vide different cheques to the respondent. The complainants were assured by one Mrs. Neha Gupta sales person of the respondent that an area of 850 square feet would be delivered to them by the next year and then a blank copy of buyer’s agreement was received by the complainants, wherein the area of the unit was mentioned as 645.14 square feet and possession was to be delivered by 17^th January, 2021 totally against the promise made to complainants by above said sales person of the respondent.

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The complainants took the matter with the respondent, but no effect came and ultimately with Mr. Pratik Mittal (MD) of the company on 28^th July, 2018, they were assured that cancellation process would be initiated. Then a cancellation notice dated on 10^th August, 2018 was received by complainants and they were informed that no refund would be paid to them. The complainants had been harassed by the owner and employees of respondent and as such they did not want to stay in the project. That’s why this complaint was filed along with documents alleging violation of section 18 of the Real Estate (regulation and development) Act, 2016 after called and asking refund and interest etc. Well according to me the respondent has also committed unfair trade practice and deficiency in service which is mentioned in section 2(47) and section 2(11) of Consumer Protection Act, 2019.
Complaint, was contested by respondent by taking the preliminary objections regarding maintainability of the complaint before this bench had already been cancelled and amount forfeited. The complainants failed to get the buyer’s agreement executed and making further payment of the due amount. The unit was cancelled as per the own request of the complainants and amount forfeited and, in these circumstances only the authority had the powers under section 11(5) of the Real Estate (regulation and development) Act, 2016 to entertain and try the same. Even in the declaration to the authority, the respondent had given the completion date as by July, 2022.

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Both the respective representatives for parties addressed arguments on the basis of the submissions made in their pleadings as already summarized above and it is not disputed between the parties that complainants booked flat and paid a total amount of 4,08,100/- on three different occasions. And the argument on behalf of respondent at the outset was that booking of the complainants was cancelled by the respondent on 10^th August, 2018 on the specific request of complainants made vide letter on 4^th August, 2018 much before the filing of the complaint therefore, the remedy if any available to the complainants because of said cancellation by respondent would lie before the authority under section 11(5) of the Act and this complaint was not maintainable.
This argument on behalf of complainants was that initially Neha Gupta assured them that the area of the property unit was 850 square feet and that the same would be delivered by next year, but, subsequently after initial payments of 4,08,100/- has been made, the respondent sent blank copy of buyer’s agreement in which area of unit was mentioned as 645.14 square feet and date of possession on 17^th January, 2021 contrary to earlier representatives given by employee of respondent and therefore, the complainants did not execute the agreement nor made any further payment in response to demand letter dated on 18^th July, 2018 and rather requested for cancellation of their allotment.

Also Read- Cancellation and Refund under RERA

The further argument was that default on part of respondent in changing the terms and conditions as assured initially and the respondent failed to deliver the possession as per the oral assertions made at time of booking and the complainants, therefore was well within rights to file the present complaint and the same was maintainable before this bench. The court had considered contentions of the learned representatives for the parties. As it turns out that there was not even a single document in support of this assertion of the complainant nor that matter complainants have placed on record any letter indicating that the respondent intended to change the terms and conditions which had been orally assured to them at the time of booking of the unit.
Apparently, the complainants only paid the initial amounts and rather defaulted in making any further payment as per the demand letter dated on 18^th July, 2018 and rather chose to write a letter dated on 4^th August, 2018 seeking cancellation of the unit; but even said letter had not been placed on record by the complainants, but they made oral assertions for seeking cancellation in this behalf in the complaint and even the cancellation notice dated 10^th August, 2018 written by complainants requesting for cancellation of the unit. It was simply a case of the complainants having sought cancellation of the unit unilaterally even prior to the executing the buyer’ agreement and on the basis of said request of complainants, the respondent vide latter dated on 10^th August, 2018 cancelled the said allotment by forfeiting the amount paid by the complainants.

Also Read- Challenge cancellation of unit in rera

The only remedy left with the complainants feeling aggrieved because of said cancellation is to approach the authority under section 11(5) of the Act which runs as under: the promoter may cancel the allotment only in terms of the agreement for sale: provided that the allottee may approach the authority for relief, if he is aggrieved by such cancellation and such cancellation is not in accordance with the terms of the agreement for sale, unilateral and without any sufficient cause. Even the real estate appellate tribunal, Punjab in appeal bearing titled as Sandeep Mann and another v. RERA and others and connected appeals decided on 27^th February, 2019 was pleased to hold that in case of cancellation of the unit, the remedy available to the allottee is to approach the authority.
The complainants feeling aggrieved because of the cancellation of the unit, by the respondent can only approach the authority as per the provisions of section 11(5) of the Act and this present complaint filed before this bench is not maintainable and the same is accordingly dismissed. In the peculiar circumstances of the case in hand, the parties are left to bear their own costs. The judgement was decided by Balbir Singh who is the adjudicating officer, Real estate regulatory authority, Punjab.

Also Read- Complaint in Rera for Cancellation of Unit

CONCLUSION

The judgement decided in this case was at all justified from all the legal points but the fraud who has committed should be held liable in such a way that he/she should not again committed the same with the other persons. Because the person who innocently purchase the flat with the view to stay there but due to some reason the company commits fraud with them and the hard-earned money that they have invested in purchasing the flat gets all wasted and the physical and mental harassment of coming into the court is another such a big nuisance. And this can only be proved when the person gets justice.

This post is written by Sammyak Jain.

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