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2019 (4) TMI 2062 - AT - Indian LawsMaintainability of application - Seeking refund of amount along with interest including compensation - allottees seeking withdrawal firm the project - Allottees could not get the possession of their respective flats even after period of 6 to 7 years and Allottees had already paid about 90% of the price of their respective flat price to the promoter - applicability of Section 13 of RER Act, 2016 - Section 18 of RER Act - HELD THAT - Allottees spent Rs. 90,00,000/- for purchase of flat and waited for 7 to 8 years and are not hopeful of getting the possession of the Hat in near future and allottees were shocked to know in due course that the flats situated in Evershine Cosmic project which they decided to purchase were not having legal approval and thereafter, three flats situated in Gaurav Wood project of sister concern of promoter which were offered to be given to the allottees in lieu of two flats were also not having legal sanction - Since, the projects are governed by RER Act and rights and obligations of promoter and allottees are also governed by RER Act, and allotment letters issued by promoter in favour of allottees are still in force and promoter received 90% of the price of each flat i.e. Rs. 90,00,000/- for each flat from each allottees about 8 to 9 years back, allottees are justified in taking the shelter of Section 18 of RER Act, 3016 by selecting the option of withdrawing from the project and claiming the refund of entire amount paid to the promoter along with interest including compensation. The complaints filed by Allottees are maintainable under Section 13 of RER Act. 2016 and consequently impugned order stands set aside - the complaints are maintainable and Section 18 of RER Act, 2016 is also attracted to the present dispute and allottees are entitled to get refund of the amount along with interest including compensation from the promoter in view of Section 18 of RER Act, 2016, Rate of interest shall be as per Rule 18 of Maharashtra Real Estate (Regulation and Development) Registration of Real Estate Project, Registration of Real Estate Agents, Rates of Interest and Disclosures on Website) Rules, 2017. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Whether the complaints are maintainable. 2. Whether Section 13 of the RER Act, 2016 is attracted to the dispute. 3. Whether the Allottees are entitled to a refund along with interest including compensation. 4. What order should be passed. Detailed Analysis: 1. Whether the complaints are maintainable: The Tribunal affirmed the maintainability of the complaints. The complaints were filed by the Allottees who had booked flats in the Evershine Cosmic project. The Promoter had accepted 90% of the flat price from the Allottees and issued allotment letters, which were not canceled. Despite a Memorandum of Understanding (MOU) for alternative flats in the Gaurav Wood project, the original transaction regarding Evershine Cosmic remained valid. The Tribunal concluded that the complaints were correctly filed based on the allotment letters for the Evershine Cosmic project. 2. Whether Section 13 of the RER Act, 2016 is attracted to the dispute: The Tribunal found that Section 13 of the RER Act, 2016, was applicable. The allotment letters issued by the Promoter were considered sufficient to establish an agreement for sale under Section 2(c) of the RER Act, 2016. The Tribunal emphasized that the nomenclature of the document (allotment letters) does not alter the nature of the transaction, which was an agreement to sell the flats. Therefore, the provisions of the RER Act, 2016, including the obligations and rights under Section 13, were applicable. 3. Whether the Allottees are entitled to a refund along with interest including compensation: The Tribunal concluded that the Allottees were entitled to a refund with interest and compensation. The Promoter failed to deliver the flats as per the original agreement, and the alternative flats offered were also not legally sanctioned. Given the substantial payment made by the Allottees and the prolonged delay in possession, the Tribunal held that the Allottees were justified in withdrawing from the project and seeking a refund under Section 18 of the RER Act, 2016. The Tribunal also referred to the observations and guidelines laid down by the Bombay High Court in the Neelkamal Realtor case, which reinforced the Allottees' entitlement to compensation for the delay and deprivation of funds. 4. What order should be passed: The Tribunal set aside the impugned order dated 17.09.2018, which had dismissed the complaints. It allowed the appeals and ordered the Promoter to refund the amount paid by each Allottee towards the price of the flats and car parking, along with interest from the date of payment until realization. The rate of interest was to be as per Rule 18 of the Maharashtra Real Estate (Regulation and Development) Registration of Real Estate Project, Registration of Real Estate Agents, Rates of Interest and Disclosures on Website) Rules, 2017. Additionally, the Promoter was directed to pay Rs. 25,000/- towards costs to each Allottee in each appeal and bear their own costs. Final Order: - Appeals No. 006000000010817 and No. 006000000010818 were allowed. - The common impugned order dated 17.09.2018 was set aside. - The Promoter was ordered to refund the amounts paid by the Allottees with interest. - The Promoter was to pay Rs. 25,000/- towards costs to each Allottee in each appeal.
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