Case BriefsTribunals/Commissions/Regulatory Bodies

Uttar Pradesh Real Estate Appellate Tribunal, Lucknow: The Division Bench of Justice Dr D.K. Arora (Chairman) and Rajiv Misra (Administrative Member) set aside the decision of the Regulatory Authority and held that the developer did not conceal the details of the project including the status of the same.

The appellant preferred the present appeal against the order passed by the Regulatory Authority whereby the appellant had been directed to refund the amount deposited by the respondents.

Factual Background

Respondents booked 4 BHK Flat in the appellant’s project ‘Godrej Nurture Phase-I’ and paid a sum of Rs 17,51,901 in installments to the appellant. The possession of the unit after completion of the project was to be delivered by 31-3-2024. But the appellant increased the rate of the property in question.

In view of the above, respondents lost faith in the developer, hence filed a complaint about the refund of the deposited amount along with interest. Respondent got the refund with interest at the rate of MCLR+1% per annum, within 45 days.

Aggrieved with the above-stated order, the appellant approached this Tribunal.

Appellant stated that it has not made any change/escalation in the price of the apartment. The lease rent is a pass-through charge which is payable to the competent authority in terms of the title document.

Further, the advance charges were only charged at the time of issuance of the possession letter and for the services/maintenance of the unit and the project the charges were to be paid by all the apartment owners.

The appellant had issued another allotment letter to the respondent on 23.04.2019, indicating the cost of the unit as Rs.1,86,29,264.87p. including taxes mentioning the condition at serial no. 4 to the effect that the allotment of the unit is subject to executing/signing and submitting to the developer/appellant the duplicate copy of the duly signed allotment letter within 10 days of the date thereof and if the developer does not receive the duly signed allotment letter from the allottee/respondent within the timeline mentioned therein, then it shall be deemed that the allottee/respondent has accepted the allotment of the unit on the terms and conditions as specified in the application and the allotment letter.

Respondent was aggrieved by the increase of Rs.3,78,237.92p.

Issued framed

(1) Whether the appellant misrepresented the facts regarding promoter/developer of the project to the allottee?

(2) Whether the appellant committed any illegality in correcting the amount of lease rent payable by the allottee/respondent and taxes from Rs.21,10,077.85 to Rs.21,67,775.16p., advance maintenance charge Rs.1,12,421.03 and lease rent from Rs.5,20,359.10p. to Rs.7,28,478.68p. which resulted in enhancement of the cost of the unit from Rs.18,251,026.95p. to Rs. 18,622,264.87p. vide allotment letter dt. 23.04.2019 (page 57 of the paper book)?

(3) Whether the Regulatory Authority committed any illegality while allowing the claim of the respondent vide impugned order dated 19.02.2020?

Analysis and Decision

The Tribunal on examining the provisions of the application form which was addressed to the appellant signed by the respondents, found that the appellant had disclosed the project and the status of the appellant along with status of Godrej Properties Limited as Development Manager for the project in question by the developer/appellant and the Godrej Properties Limited authorized to develop and operate the Project as per the agreements between the Developer and the Development Manager.

Therefore, nothing was concealed or misrepresented.

As per the application form, it was clearly indicated that the allottees agreed to the cost of the property as mentioned in Schedule III towards purchase of the Unit. However, the Cost of Property shall be exclusive of all charges, fees, taxes, impositions as may be levied by the Competent Authority, such as, lease rent, GST, Cess, property tax, land under construction tax or any future increase thereof or imposition of any fresh incidence of tax levied by Competent Authority; (“Statutory Charges”) in respect of the Unit and Club Membership Charges, recovery or payments towards maintenance and operation of common areas and facilities, stamp duty, registration charges, any future increase thereof and all other costs, charges and expenses incidental thereto in connection with any of the documents to be executed for the sale of the Unit, as per the provisions of applicable laws.

On examining the two allotment letters, it was found that the appellant corrected the amount of taxes, lease rent and mentioned advance maintenance charges. After correction of the same the amount of the unit became Rs.1,86,29,264.87p. from Rs.1,82,51,096.95p. and resulted in the increase of cost of Rs.3,78,167.92p.

Tribunal found no illegality in correcting the amounts in the second allotment letter.

In the opinion of the Tribunal, the appellant had disclosed each and every aspect and details of the project including status of the developer and development manager.

In view of the above discussion, the impugned order was set aside. [Bick Rise Developer (P) Ltd. v. Antaryami Kumar, Appeal No. 472 of 2020, decided on 22-3-2022]


Advocates Before the Tribunal:

Kapil Madan, Counsel for the Appellant

Shiv Prakash Pandey, counsel for the Respondents

Case BriefsTribunals/Commissions/Regulatory Bodies

Rajasthan Real Estate Regulatory Authority, Jaipur: Coram of Nihal Chand Goel (Chairman) and Shailendra Agarwal, Salvinder Singh Sohata (Members) decides the matter in light of Section 13 of Real Estate (Regulation and Development) Act, 2016 and the significance of sale agreement.

Factual Matrix

Instant matter was with regard to a project of Jaipur Development Authority registered with RERA.

Complainant had participated in an auction organized by respondent 1 and has been successful, he had been allotted a plot in the above-stated project, being implemented by respondent 1 under an MoU with respondent 2.

Though the 15% amount was deposited with respondent 1 , but without executing an agreement for sale, the respondent had issued a further demand note of 35% amount, which was due to be deposited. Respondent included a warning in its demand note.

Complainant stated that respondent 1 had not executed an agreement for sale as envisaged under Section 13 of the RERA and was asking for further amounts to be deposited.

Complainant prayed that respondent 1 should be directed to execute an agreement for sale in terms of Section 13 of the Act and be restrained from asking for a deposit of the remaining amount until such an agreement is executed and registered.

Decision

Bench stated that all the provisions of RERA including Section 13 which apply to any advertisement, promotion, booking offer of sale, or sale of any plots in a registered project would apply to the project mentioned in the present matter.

The auction had been conducted by announcing that the project in question was a project registered with RERA and thereby informing and promising to the potential buyers that the provisions of the Act and the rules and regulations made thereunder would apply to this project and determine their relationship with Respondent 1 in respect of any plot purchased at the auction.

In view of the above, Authority directed as under:

  • Respondent 1 shall execute an agreement for sale with complainant and get it registered before demanding or accepting any further amount beyond 15% amount which was already deposited.
  • Complainant shall pay the balance amount by 30-09-2020 or within 3 days from the date of sale agreement as per the payment schedule given in the agreement for sale to be executed, whichever is earlier.
  • Respondent 1 to align its land disposal rule and terms and conditions of auction with provisions of the Act.

[Vinod Kumar Agarwal v. Jaipur Development Authority, Complaint No. RAJ-RERA-C-2020-3622, decided on 22-09-2020]


Advocates before the Authority:

For the Complainant: Advocate Pranjul Chopra

For Respondent 1: CA Mitesh Rathore 


 Additional Information

Section 13 (1) of the Act provides for an agreement to be executed and registered before the promoter accepts an amount exceeding 10 per cent of the total cost of the plot. This is a mandatory requirement of the Act and cannot be dispensed or compromised with.

Case BriefsTribunals/Commissions/Regulatory Bodies

Maharashtra Real Estate Regulatory Authority, Mumbai: Coram of Dr Vijay Satbir Singh (Member I), while laying out certain significant observations with respect to the provisions of RERA decided the complaint revolving around delayed possession of flat.

Background

By preferring the present complaint, complainants sought directions from the MahaRERA to the respondent to pay the interest for the delayed possession under Section 18 of the Real Estate (Regulation & Development) Act, 2016 (RERA) in respect of booking their respective flats in the respondent’s project.

Respondent failed to hand over the possession of the flat on time. Complainants sought payment of interest for the delayed possession and further stated that even after the respondent sold more than 50% of the units, it failed to form the association of allottees/ society of allottees till date. The respondent has also failed to execute the deed of conveyance with the complainants along with the other allottees of the project.

Further, it was alleged that the respondent was yet to hand over and allot the parking spaces to respective allottees and was demanding permission from the allottees to utilize the additional FSI and construct the additional floors.

Complainants further stated that they have signed the possession letter and have received the possession of their respective flats in the month of December 2019, though respondent was not ready to allot the parking as well as to form the society of the allottees.

Analysis, Law and Decision

Since the respondent did not hand over the possession of the flats to the complainants and violated the provisions of Section 18 of the RERA and the Rules made thereunder.

Bench did not accept the reasons cited by the respondent for the delay in possession of the flat and apparently the respondent promoter wanted to apply convenient clauses in the agreement to take undue benefits after commencement of the RERA.

Formation of Society and Execution of Conveyance Deed

As per Section 11(4)(e) of the RERA, promoter is liable to enable the formation of society within 3 months of the majority of allottees having booked their flats.

In the present matter, more than 51% of the allottees booked their flats and the full occupancy certificate had been obtained for the said project, hence it was statutory duty of respondent promoter to form a society of the allottees and the respondent had no authority to lay down any condition for the same as it was not permissible under RERA.

Construction of Additional 4th Floor

MahaRERA opined that the present project was registered with MahaRERA after commencement of the RERA and hence provisions of RERA would apply for this project.

Hence, as per Section 14 of the RERA, any change or modification in the sanctioned plan required mandatory consent of the allottees and therefore, if respondent wanted to modify plans including the construction of 4th floor, then it had to be obtained through requisite consent of allottees.

Adding to the above, MahaRERA held that the respondent was liable to pay interest for the period of delay in accordance with the terms and conditions of the agreement.

Selling of the Car Parking

 stated that there is an explicit provision under RERA that promoter can sell only covered car parking by charging a certain amount. Open Parking had to be handed over to society, it could not be sold in the open market.

Therefore, complainant allottees and respondent promoter were bound by the said provision.

Following Order was passed:

  • Respondent directed to pay interest to the complainants till the date of occupancy certificate.
  • Respondent promoter was entitled to claim the benefit of “moratorium period”.
  • Since the complainants want to continue in the project, they are entitled to seek interest for the delayed possession under section 18 of the RERA.
  • Respondent/Promoter directed to form a society as per the provision of Section 11(4)(e) of RERA
  • With regard to construction of additional floor, without the consent of the 2/3rd allottees, the same could not be constructed.
  • It was also directed that respondent was entitled to sell only covered car parking and no cash money be demanded from the allottees.

[Deepesh Singh v. Neelkanth Constructions, Complaint No. CC006000000089761, decided on 30-07-2020]


Advocates before the Authority:

Adv. Nilesh Garde appeared for all the complainants. Adv.Khushiram Jadhvani a/w. Adv. Manali Saraf appeared for the respondent.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal: In a recent order passed by S.J. Mukhopadhaya, Chairperson and Bansi Lal Bhagat J., Member  regarding the appeal of the petitioner, who claims to be a promoter, regarding excessive voting rights given to L&T Finance (Financial Creditor).

The brief facts being that the National Company Law Tribunal (NCLT) had directed the Resolution Professional to grant proportionate rights to L&T, which had been challenged here in this case by the appellant regarding the rights granted not to be just and proper.

It was held by this Tribunal, that the appellant, who was found to be a promoter/director of the corporate debtor, had no locus standi to challenge the voting rights of any financial creditor. It was also held that with respect to Section 29-A of the Insolvency and Bankruptcy Code, 2016, that the appellant was not a ‘connected person’ to file the case. Hence, no relief was granted and the appeal was dismissed, since the Tribunal found no merit in the present appeal. [Gurdeep Singh Sahani v. Berger Paints India Limited, 2017 SCC OnLine NCLAT 437, decided on 30-11-2017]