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Rosemary Hospitality Private Limited Vs. Anjali Promoters & Developers Pvt. Ltd. and Ors. - (Real Estate Regulatory Authority) (05 Feb 2019)

Authority has complete jurisdiction to decide complaint in regard to non-compliance of obligations by the promoter

MANU/RR/0412/2019

Property

A complaint was filed under Section 31 of the Real Estate (Regulation and Development) Act, 2016 read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules, 2017 by the complainant against the promoters on account of violation of the Clause 2.1 of space buyer's agreement executed on 10th December, 2008 in respect of shop/unit described below for not handing over possession by the due date which is an obligation of the promoter under Section 11(4)(a) of the Act.

On 30th October, 2006, the original allottee applied for booking in BPTP's then upcoming project and an advance of Rs. 11,55,000 was given vide cheque. The complainant purchased the unit from the original allottee and the entire amount with the Respondent no. 1 on account of booking was transferred in the name of the complainant.

The complainant submitted that as per clause 2 of the said agreement, the Respondents were liable to deliver the possession of the said unit by 31st December, 2011. The Respondent no. 1 has delayed the possession of the said unit for period of more than 7 years and has yet not been able to deliver the same and in addition has also taken more than 95% payments against the said unit, due to which the complainant has suffered humongous losses. The complainant seeks the refund of the entire money by the complainant along with the interest.

The due date of possession is 31st December, 2011 and the possession has been delayed by 7 years 1 month and 5 days from due date of possession till the date of decision. Therefore, the respondent has breached the said agreement by not delivering the possession of the said unit.

Further, the complainant is seeking refund of the entire money paid towards the said unit along with interest for delay in handing over possession. However, keeping in view the present status of the project and intervening circumstances, the authority is of the view that in case refund is allowed in the present complaint, it will hamper the completion of the project as the project is complete and the occupation certificate was granted to the respondent on 9th October, 2018 by the concerned authority. Moreover, for protecting the right of one allottee, right of other allottees who wish to continue with the project cannot be jeopardised by allowing refund in the present case.

Therefore, in view the principles of natural justice and in public interest, the refund of the deposited amount cannot be allowed. However, as the promoter has failed to fulfil his obligation under Section 11(4)(a), the promoter is liable under section 18(1) proviso read with rule 15 of the rules, to pay interest to the complainant, at the prescribed rate, for every month of delay till the handing over of possession.

Authority has complete jurisdiction to decide complaint in regard to non-compliance of obligations by the promoter. Hon'ble Supreme Court, in National Seeds Corporation Limited v. M. Madhusudhan Reddy & Anr. has held that the remedies provided under the Consumer Protection Act are in addition to and not in derogation of the other laws in force, consequently the authority would not be bound to refer parties to arbitration even if the agreement between the parties had an arbitration clause. Further, in Aftab Singh and ors. v. Emaar MGF Land Ltd. and ors., it was held that the arbitration clause in agreements between the complainants and builders could not circumscribe jurisdiction of a consumer.

Complainant is entitled for delayed possession charges at prescribed rate of interest i.e. 10.75% per annum w.e.f. 31st December, 2011 till the handing over of possession as per section 18 of the Act. As the project is registerable and has not been registered by the promoter, the authority has decided to take suo-moto cognizance for not getting the project registered and for that separate proceeding will be initiated against the respondent under section 59 of the Act.

Relevant : National Seeds Corporation Limited v. M. Madhusudhan Reddy & Anr. MANU/SC/0038/2012

Tags : DELAYED POSSESSION   REFUND   ENTITLEMENT  

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