LI RESEARCH
Aftab Singh v. Emaar MGF Land Limited & Anr
(Consumer Case No. 701 of 2015)
In this case there was a dispute that if the suits falls under RERA, can a consumer complaint also be filed against the builder. The facts of the case are as follows, here the builder promised to build villas and to make them available for delivery within a stipulated time, however he failed in this regard.
After which he filed an application under Arbitration and Conciliation Act,1996 to ask the judicial authority to refer parties to arbitration as the agreement between the buyers and the builders had a arbitration clause in the main agreement.
Subsequently, a consumer complaint was filed in the forum against the builder, but he contended that the forum does not have jurisdiction to try the case as the matter is already pending under a different statue and different authority.
The Hon’ble court held that the Consumer Protection Act, acts as a supplement to another statue and not to suppress the right given in another statute.
The forum under the act is not to be considered as a civil court. Just because an alternate remedy is available to consumer under a statute it can not stop him from approaching the forum. Although there are provisions of RERA expressly for protection of Developers and Builders and also for protecting the rights of buyers in regards to substantial compensation but all this does not curtail the right or limit it for instance.
Section 71 of RERA provides for adjudicatory powers does not in any way stop the person from invoking the rights under CPA. In the same case before NCDRC it was held that the agreement does not bar the parties from going to forum for redressal of issues .
Hence, now it is a established principal that consumers now have to option to approach RERA forum as well as Consumer Protection forum for redressal of their of their issues.
Geetanjali Aman Construction Vs Hrishikesh Ramesh Paranjpe
Complaint Number 0000691 [Maha RERA]
In this case the question was with regards to the registration of project and the subject matter of the dispute was related to Section 3 of RERA. The important provision with regards to this was that 3(2) which explicitly provided that the projects need not be compulsorily required to be registered if it does not exceed 500 sq. mtr in area or the second that the building does not have more than 8 floors. A fine of rupees 30 lakh was imposed on the defendant.
Even after contenting that it is an “or” condition and not a “and” condition, the defendant failed to get a desired result.
The argument put forward stated that the first condition that it must be within 500 sq mtr. is satisfied, while the allottes have filed that since there are approx. 22 flats and 9 shops it violates the second condition The question before the court was to interpret 3(2) and it held that 3(2) will be interpreted in its truest sense now and that the developer needs to satisfy both the conditions to get approval.
It was held that the developer needs to pay 30 lakhs and also need to register the project within 1 month.
Mr. Jatin Mavani Vs M/s. Rare Township Pvt. Ltd [Maha RERA]
In this case the issue is about filing of multiple proceeding under RERA on the same subject matter. Here in this case the complainant raised a plea that even after booking a flat and paying the required consideration he was not given the delivery on time, further the other buyers also seek redressal from the MahaRERA that is to give direction for non- payment of cancellation fee and refund of amount already paid.
The argument put by the respondent builder was that the first complainant never got the agreement registered and that never stood up for its execution. Even after the respondent was asking him to enter into a new agreement but he failed to do so and now he is coming up with other buyers with his plea, which should not stand as it would amount to multiple proceeding under the same authority.
Another disputed fact was the was also a member of the developing association and also a party to earlier proceeding, hence he cannot be a party to this claim.
The MahaRERA observed this fact and came to a conclusion that when the complainant approached the forum earlier her exhausted his remedy and now he has no locus standi in coming to the court, because if he is considered as allottee than it will be multiple proceeding before the same court which can’t be allowed.
Sanjeev Dhakar Vs. M/s. Arkanade Realty( MahaRERA Mumbai)
The question here relates to the fact that the complainant bought a flat in the building of the respondent for a agreeable consideration, after the delivery of the house, an important question arose with regards to the parking space, which is to be provided to to any person buying a particular area.
Under the RERA it has been stated that the owner or the developer is bound to provide parking space to all the occupants of his area.
Here another contention was the fact which was alleged also is that the respondent was trying to see the parking area to some other people which is violative of the principal in itself.
After listening to arguments of both the sides the court came to a conclusion that the respondent, who is the developer is obligated to provide the necessary space for parking to all its occupants who have bought the flats of the project. He cannot in any way sell that land to other people.
Avinash Saraf, Neha Saraf Vs. Runwal Homes Pvt. Ltd( MAHARERA, Mumbai)
The question here relates to the amount of compensation that becomes payable to failure in providing delivery of the agreed space.
The respondent Runwal homes promised that they would deliver the flats by August, 2016 and in regard to the same agreements were signed and due consideration was paid, where date of agreement is November, 2014.
The complainant here contended that they have paid almost 97% of the consideration and are yet to receive their flat, hence the approach the tribunal with the view to ascertain that the respondent company be made liable and should pay the amount of consideration along with interest for the time they failed to provide possession.
The respondent company claimed that here the RERA body has no jurisdiction because the agreement was signed way before RERA came to existence, hence they cannot be made liable according to the provision of the Act.
The Judgement which was given stated that, since the cause of action relates to failure to provide delivery of flats, it takes with it the retrospective application of the Law, meaning that this court has been entrusted with jurisdiction under Sc79 of RERA. Hence the question of jurisdiction is dissolved, the court is of the opinion that the respondent developer needs to provide compensation and interest for registration as well as stamp duty.
Suresh V. Swamy Vs. L&T Limited 2018(4) ADJ 406
This is one of the landmark judgement which addressed few of the important questions related to RERA.
The facts of the case was that the complainant had paid full consideration of the flat and after the failure on the part of the promoter, it is expected that the promoter pays the interest on the payment, the agreement of sale was signed between the parties and it was agreed that delivery be made on any date in September,2017.
After this the project in question received it occupancy certificate and a revised date was confirmed as 31st December, 2018 as the new date for completion of the project. This case answered few very important issues with regard to the Act.
- Can it be understood that jurisdiction under the Act is co extensive with the project registration?- Answering to this the court said that interpreting section 5(3) we can understand that provisions of the act are applicable after the gaining of occupancy certificate also. It can be understood as the permission which is granted is subject to the time period declared by Sc 4(2)(1)(c).
- If for example it is accepted that after getting the occupancy certificate the registration lapses, does that mean that authority have no jurisdiction till the completion of Project?- Here the court discussed few important provisions of the Act. Firstly, it is the obligation of the concerned authority to make sure that they have to oversee the work left until everything is completed, this has been given under Section 8. Secondly, it is the duty of the promoter to do away with any structural deformity that might come up within 5 years and this must be done at a limitation of 30 days. If the promoter fails to perform this duty then he must give compensation in regard to the same. Thirdly, there are certain documents that are required to be given by the promoter within a period of 30 days and these include registered conveyance deed, plans etc. If not done within a stipulated time then he will made liable. Fourthly, Sc 33 casts a duty on Authority to oversee that the promoter performs his duties and it also casts a jurisdiction on itself for any obligation not fulfilled by the promoter. Fifthly, any complainant aggrieved by the acts of the promoter may file a complaint under section 31 and if really a cause of action arises then under 79 of the Act, the authority retains its right of jurisdiction. So this concludes the question and it has been clarified that the jurisdiction remains even after getting a occupancy certificate or even after possession is offered.
- Whether the provisions of this Act can be applied to agreements signed prior to the implementation of the Act? – Answering this court went to the case of Neelkamal Realtors Suburban Pvt. Ltd v/s Union of India, where they said that application of section 18 will be applicable to cases even where the agreements were signed prior to the coming of this act. The Hon’ble court suggested that the application of section 3, 6,8 and 18 have retroactive powers and they can be invoked.
- If for instance there is a clause in the agreement which prohibits the authority that is it bars the authority from using its jurisdiction, can such arbitration clause exists in the first place?. To answer this question reliance was placed on HDFC Bank Ltd vs Satpal Singh Baxi where it was held that if there are certain special enactment then they cannot be overridden and such enactments are not subject to arbitral proceedings. Applying the same principals here also because the case arose out of dispute out of section 18 which provides for special powers to the RERA forum to adjudicate on the issue and such issue cannot be transferred to the Arbitral tribunal.
- Whether Section 18 of RERA is mandatory or optional?. So once the matter comes for consideration the allottee has two option either he can stay and until the completion of the project and get interest for the amount of consideration he paid for the space or he can ask for repayment of his amount. The word used in section 18 is ‘shall’ which makes it a mandatory provision and it casts an obligation to pay on the promoter to pay in case of default on his part.
- If for example the promoter resorts to changing the date of project, would he still be expected to pay interest?. The court answered this in an affirmative way, it said that though it’s a discretion of the promoter to change the date of completion but this does not in any way mean that this mean re writing of contract. Once the date of delivery is fixed it cannot be changed and if the promoter fails to complete that obligation he shall be required to pay.
- Vishal Arya vs. Unitech Limited. First Appeal No. 617 of 2013
The case here involves the concept of ‘force majeure’. Force Majeure refers to happening of an uncertain event which makes it difficult or impossible for the parties to perform their contractual obligation.
Here in this case the issue was that the complainant had already paid the entire amount of consideration due for possession of flat and a fixed date of delivery was given to him, after this there was delay on the part of the promoter in giving the delivery of the flat.
However the construction work has not even started so thereby the complainant approached the forum that either be delivery be given to him or the amount he paid must be refunded along with interest for all these months.
Unitech argued that they delay was caused due to unforeseen circumstances and that it is attributed to force majeure so it’s beyond his control hence the question of compensation does not comes up.
The forum rejected this argument and said that Unitech is unnecessary benefits of the clause, there are certain requirements that are needed to be fulfilled before force majeure clause can be invoked and the present case is not one of those hence they are required to refund the entire amount along with interest and also an amount towards the mental distress that they gave.
Sushil Ansal vs. Ashok Tripati, Suarabh Tripathi [2020]43 NCLAT
Here in this case a decree was challenged in the NCLAT, wherein it required the filing of insolvency by company for the payment of rupees 73 lakh which was awarded against them by UP RERA. The question was whether home buyers can be included under the ambit of financial creditor.
The forum ruled that Home buyers can take a recourse to civil law for enforcing their decree, but they cannot look at IBC for providing them relief.
According to 2019 amendment, it is a basic requirement that either 100 buyers or 10 percent of the allottee are required for filing of bankruptcy, but the fact that cannot be overlooked is for example there are only 100 buyers then the company can be forced to go into insolvency by only 2 or 3 individuals.
It is clarified that a home buyer is not be seen on the same lines as a financial creditor when it comes to enforcing of a decree for the repayment due to default on the part of promoter itself.
Vinod Kumar Agarwal vs. Jaipur Development Authority (Rajasthan RERA)
RAJ-RERA-C-2020-3622
The question discussed here was whether the provisions of RERA will have an overriding effect over the provisions of local laws. The question of law also involved the application of Section 13 of Real Estate Regulation Act.
The section provides for that the promoter of the project shall not accept any amount which is more than 10 percent of the total amount unless the agreement for sale and other conditions have been fulfilled.
The facts of the case are that the authority wanted more consideration as against the 10 percent rule and it stated that the reason for this that the local act of the state that is Rajasthan Improvement Trust Rules,1974 provides about that.
Also further they contended that the respondent was not obligated to do certain development around that area. While the petitioner contended that the provisions of RERA signify that it is a act made by Central Legislature and would have an overriding effect over the provisions of state laws.
Hence following Section 13 of RERA the authority should be made to execute the sale deed and complete the agreement before asking for any more amount. The tribunal here accepted the arguments and said that it is true that Central Law would prevail here, and also the fact that the above section is mandatory in nature hence the authority is required to execute the said agreement of sale.