Failure to Handover Possession and Deficiency in Service Case against Suncity Buildcom, Haryana RERA.
Summary/ intro: The grievance of the complainant is that the respondent charged a huge amount of illegal money, and did not replied to the rectification sought by him. The respondent then transferred the entire project to Suncity Pvt. Ltd. without informing the complainant. The complainant prays for allotment of the said plot and in alternate the refund of the entire amount along with 24% interest. The complainant, further, prays for compensation for delay in completion of project
NARENDRA SINGH DESWAL VERSUS SUNCITY BUILDCOM LTD.
This case deals with a complainant who under the presumption of a unilateral agreement, made a part of the payment for a project and later demands for the possession of the same.
Facts:
The complainant was allotted a plot no. E41, Block E, measuring approx. 323.83 sq. yds, vide allotment letter dated 22.08.08 by the respondent in a Project named “Suncity Projects”. It was also clearly stated that if the said plot was located on a preferential location, hence, it attracts preferential location charges, that is, Rs. 350 per square yard.
The complainant paid an amount of Rs. 5,70,000 the time of booking. But it was revealed later on that the plot was not preferentially located and hence, the complainant sent a letter dated 24.10.08 to respondent to rectify this mistake. However, the respondent with not reply to this letter. Therefore, the complainant alleged this agreement to be unilateral because there was no reply from the other party to make it bilateral. Hence there was no legal binding agreement on him.
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After this, the respondent time and again asked the complainant to pay the remaining of the amount for the project, but the complainant did not abide by any of such demands. After a gap of four years, the respondent announced that the entire project shall be managed and completed by “Suncity Buildcon P. Ltd.” The respondent had sent other demand letters and on 15.09.16 escalating the amount and offered possession.
Finally, on 23.01.17, the respondent sent a cancellation letter to complainant has not got this cheque encashed till date. The grievance of the complainant is that the respondent charged a huge amount of illegal charges for hi, and not reply to the rectification sought by him ever. The respondent then transferred the entire project to Suncity Pvt. Ltd. without informing the complainant. The complainant prays for allotment of the said plot and in alternate the refund of the entire amount along with 24% interest. The complainant, further, prays for compensation for delay in completion of project
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The respondent firstly challenges the authority of the court to decide on the case. Further, the respondent denies the allegations made by complainant and submitted that the complainant himself had failed to make payments even after large number of demand letters were sent by him. He further submitted that no preferential location charges have been charged fpr the plot as nil amount has shown against the said charges in the letter dated.
The respondent submitted that the allotment of complainant’s plot has been cancelled vide letter dated 22.12.16 and the entire amount has been refunded to complaint through cheque on the same date. The respondent has refunded the 100% amount; hence, the complainant is ceased to be an allottee of the said plot and has no position to file the complaint.
Court- Haryana Real Estate Regulatory Authority, Panchkula.
Complaint. No. 357/2018– Nrender Singh Deswal v. Suncity BuildcomPvt. Ltd.
Dare of Hearing– 28.11.2018
Issues Raised-
- Whether the court has the authority to deal with the case.
- Whether the complainant is to get the possession of the plot.
Laws Involved:
Section 44 of Real Estate (Regulation and Development) Act, 2016
(1) The appropriate Government or the competent authority or any person aggrieved by any direction or order or decision of the Authority or the adjudicating officer may prefer an appeal to the Appellate Tribunal.
(2) Every appeal made under sub-section (1) shall be preferred within a period of sixty days from the date on which a copy of the direction or order or decision made by the Authority or the adjudicating officer is received by the appropriate Government or the competent authority or the aggrieved person and it shall be in such form and accompanied by such fee, as may be prescribed:
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Provided that the Appellate Tribunal may entertain any appeal after the expiry of sixty days if it is satisfied that there was sufficient cause for not filling it within that period.
(3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may after
giving the parties an opportunity of being heard, pass such orders, including interim orders,
as it thinks fit.
(4) The Appellate Tribunal shall send a copy of every order made by it to the parties
and to the Authority or the adjudicating officer, as the case may be.
(5) The appeal preferred under sub-section (1), shall be dealt with by it as expeditiously
as possible and endeavour shall be made by it to dispose of the appeal within a period of
sixty days from the date of receipt of appeal:
Provided that where any such appeal could not be disposed of within the said period
of sixty days, the Appellate Tribunal shall record its reasons in writing for not disposing of
the appeal within that period.
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(6) The Appellate Tribunal may, for the purpose of examining the legality or propriety
or correctness of any order or decision of the Authority or the adjudicating officer, on its own
motion or otherwise, call for the records relevant to deposing of such appeal and make such
orders as it thinks fit.
The Authority has already laid down the law in the complaint case No.144 of 2018- Sanju Jain v. TDI Infrastructures Pvt. Ltd. The logic and reasoning given in the said complaint shall be applicable in this case as well. Accordingly, the Authority has jurisdiction to deal with this complaint.
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ISSUE II
Real Estate (Regulation and Development) Act, 2016
Section 13. (1) A promoter shall not accept a sum more than ten per cent of the cost of the
apartment, plot, or building as the case may be, as an advance payment or an application fee,
from a person without first entering into a written agreement for sale with such person and
register the said agreement for sale, under any law for the time being in force.
(2) The agreement for sale referred to in sub-section (1) shall be in such form as may be
prescribed and shall specify the particulars of development of the project including the
construction of building and apartments, along with specifications and internal development
works and external development works, the dates and the manner by which payments towards
the cost of the apartment, plot or building, as the case may be, are to be made by the allottees
and the date on which the possession of the apartment, plot or building is to be handed over,
the rates of interest payable by the promoter to the allottee and the allottee to the promoter
in case of default, and such other particulars, as may be prescribed.
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Section 15. (1) The promoter shall not transfer or assign his majority rights and liabilities in
respect of a real estate project to a third party without obtaining prior written consent from
two-third allottees, except the promoter, and without the prior written approval of the Authority:
Provided that such transfer or assignment shall not affect the allotment or sale of the
apartments, plots or buildings as the case may be, in the real estate project made by the
erstwhile promoter.
Explanation.—For the purpose of this sub-section, the allottee, irrespective of the
number of apartments or plots, as the case may be, booked by him or booked in the name of
his family, or in the case of other persons such as companies or firms or any association of
individuals, by whatever name called, booked in its name or booked in the name of its
associated entities or related enterprises, shall be considered as one allottee only.
(2) On the transfer or assignment being permitted by the allottees and the Authority
under sub-section (1), the intending promoter shall be required to independently comply
with all the pending obligations under the provisions of this Act or the rules and regulations
made thereunder, and the pending obligations as per the agreement for sale entered into by
the erstwhile promoter with the allottees:
also read: RERA NCLT Consumer Forum for Delay in Possession
Provided that any transfer or assignment permitted under provisions of this section
shall not result in extension of time to the intending promoter to complete the real estate
project and he shall be required to comply with all the pending obligations of the erstwhile
promoter, and in case of default, such intending promoter shall be liable to the consequences
of breach or delay, as the case may be, as provided under this Act or the rules and regulations
made thereunder
Section 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:
Provided that where an allottee does not intend to withdraw from the project, he shall
be paid, by the promoter, interest for every month of delay, till the handing over of the
possession, at such rate as may be prescribed.
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(2) The promoter shall compensate the allottees in case of any loss caused to him due
to defective title of the land, on which the project is being developed or has been developed,
in the manner as provided under this Act, and the claim for compensation under this subsection shall not be barred by limitation provided under any law for the time being in force.
(3) If the promoter fails to discharge any other obligations imposed on him under this
Act or the rules or regulations made thereunder or in accordance with the terms and conditions
of the agreement for sale, he shall be liable to pay such compensation to the allottees, in the
manner as provided under this Act.
Section 31. (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.
Explanation.—For the purpose of this sub-section “person” shall include the
association of allottees or any voluntary consumer association registered under any law for
the time being in force.
(2) The form, manner and fees for filing complaint under sub-section (1) shall be such
as may be specified by regulations.
- (1) If a promoter or an allottee or a real estate agent, as the case may be, fails to pay
any interest or penalty or compensation imposed on him, by the adjudicating officer or the
Regulatory Authority or the Appellate Authority, as the case may be, under this Act or the
rules and regulations made thereunder, it shall be recoverable from such promoter or allottee
or real estate agent, in such manner as may be prescribed as an arrears of land revenue.
(2) If any adjudicating officer or the Regulatory Authority or the Appellate Tribunal, as
the case may be, issues any order or directs any person to do any act, or refrain from doing
any act, which it is empowered to do under this Act or the rules or regulations made thereunder,
then in case of failure by any person to comply with such order or direction, the same shall be
enforced, in such manner as may be prescribed.
Judgement:
The complaint was dismissed.
Conclusion:
As far as the issue of jurisdiction of this authority is concerned to entertain the present complaint as raised by Learned Counsel for respondent, this issue has already been deliverated and settled and the Authority has powers to entertain such complaint under the provisions of Section 11, 18, and 19 of the RERA Act 2016. The authority has passed a comprehensive order with regard to jurisdiction of the Authority in Complaint no. 144 of 2018 Sanju Jain V TDI. The reasons cited in the said order shall be applicable in this case also.
Since the respondent has already refunded the entire amount to the complainant on account of his non-payment of further instalments as demanded by the respondent from time to tome and this action has been found to be right by the Authority. The authority observes that the complainant at this stage cannot claim the possession of plot which stands cancelled vide respondent letter dated 22.12.16 on account of non-payment of timely instalments against the plot.
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This post is written by Radhika Ghosh. More on 99888-17966.
