Saket District Court: In an application under Order 7 Rule 11 Code of Civil Procedure, 1908 (‘CPC’) filed by the defendant for rejection of plaint on the ground that the present Court does not have jurisdiction under Section 79 of Real Estate (Regulation and Development) Act, 2016 (‘RERA’)., Twinkle Wadhwa, J. said that as there is no provision in RERA Act thereby giving authority to the RERA Tribunal to deal with the subject matter of the present suit, the jurisdiction of this Court cannot be said to be barred in the situation where the plaintiff requested for canceling the allotment.
In this case the plaintiff / allottee bought property in Godrej for Rs 2 crore 90 lakhs which is registered under Real Estate (Regulation and Development) Act, 2016 RERA. Plaintiff had paid around Rs 30 lakh as earnest money. The plaintiff did not want to proceed with the contract and wanted to cancel the property. He filed a suit. Objection was raised that it is barred by Section 79 of RERA Act.
The defendant submitted that there is no cause of action in favour of plaintiff, and it is mentioned in the agreement form signed between the parties that in case the parties are unable to settle the matter through mutual settlement, they will go to RERA.
The plaintiff submitted that as far as bar of jurisdiction in view of Section 79 of RERA is concerned, there is no Section in RERA by which their case is covered. The only provision in RERA which talks about return of amount is Section 18 which is not applicable in this case. As per the rules of Maharashtra, Chhattisgarh, Haryana and some other states, there is inherent power in the Real Estate Authority to deal with the ancillary matters including the one covered in the present suit. However, there is no such provision in the NCT of Delhi Real Estate (Regulation and Development) (General) Rules, 2016. Hence the present matter is not barred by RERA. Thus, the present Court does have jurisdiction.
The Court said that there is no provision in the RERA Act under which allottee is entitled to claim the amount paid by him in case the cancellation is done by the allottee himself and not by the builder/ promoter. In the absence of any such provision in the RERA Act giving jurisdiction to the allottee to approach RERA, it cannot be said that the jurisdiction of this Court is barred.
The Court further said that the cancellation by the builder is different from the cancellation by the allottee. The allottee has approached the Court on different grounds and not on the ground of cancellation by the builder. Hence, this subsequent development is immaterial.
Further, the Court said that the jurisdiction of the Court is to be seen at the time of filing of the suit and is not affected by any subsequent developments, unless the suit becomes specifically barred in view of any subsequent provisions of Law/developments which is not the case here. Hence, as there is no provision in RERA Act thereby giving authority to the RERA Tribunal to deal with the subject matter of the present suit, the jurisdiction of this Court cannot be said to be barred in the situation where the plaintiff requested for canceling the allotment.
Concerning the Clause in the application form, wherein it is mentioned that in case the disputes are not settled amicably, the matter shall go to RERA, the Court said that the subject matter jurisdiction cannot be conferred on a Court by mere private contract of the parties, where there is none.
[Tejas Shoor v. Godrej Vestamark LLP, 2023 SCC OnLine Dis Crt (Del) 14, Order dated 16-05-2023]
Advocates who appeared in this case :
Counsel for plaintiff: Advocate Pawan Reley, Advocate Akshay Lodhi, Advocate Ankit Dedha, Advocate Priyanka S. Aneja, Advocate Simran Singh;
Counsel for defendant: Advocate Arav Kapoor, Advocate Homal Gupta.
