IMPORTANT POINT
The main legal point established in the judgment is that ongoing real estate projects, which commenced prior to the Act and had not received a completion certificate, fall under the purview of the Real Estate (Regulation and Development) Act, 2016. The judgment also emphasizes the exclusive jurisdiction of RERA and the bar of jurisdiction for civil courts under the Act.

JUDGMENT :

Goutam Bhaduri, J.

Heard.

1. The bunch of appeals are preferred under Section 58 of the Real Estate (Regulation and Development) Act, 2016 (for short ‘the Act, 2016’) proposing the following substantial question of Law :-

“A. Whether both the courts below have justified in not holding the fact that the applicant / respondent has not fulfilled the requirement of the agreement?

B. Whether both the courts below are justified in allowing the application/ complaint of the applicant?

C. Whether the learned Tribunal is justified in not holding the fact that the case was not maintainable before any authority under RERA act in view of the agreement dated 29.06.2022.

D. Whether the learned Appellate Tribunal was justified the holding the fact that the complain was not maintainable before RERA because the agreement was much prior before commencing of RERA Act.”

2. The facts of this case are that against the order passed by the Real Estate Regulatory Authority (for short ‘the RERA’) on 18.02.2021 whereby the appellant/promoter was directed to refund the amount obtained from the allottees along with interest within two months. The same was subject of challenge before the Real Estate Appellate Tribunal (for short ‘the Tribunal’) wherein the Tribunal dismissed the said appeals. Hence, the present appeals are before this court projecting the substantial question of law.

3. The allottees preferred an application before the RERA pleading, inter alia, that certain agreement was entered in between the parties for allotment of 1BHK House for different consideration. According to the agreement so entered, the amount was required to be paid in installment almost nearing half of the installment having been paid and few of the allottees have even paid the full installment, they found that no development has taken place over the land/plot on which the house was promised to be constructed. Therefore, since the project was continuing incomplete, they filed the application before the RERA.

4. The promoter came out with a defence that the payment of consideration as per agreement was to be paid in installment and if the three installments are not paid, the agreement would stand terminated and according to the terms of agreement, the allottee cannot initiate any legal proceeding before any forum. It was stated that the legal proceeding questioning allotment, possession, ownership, the electricity connection, registration fees cannot be subject of challenge until the last installment is paid.

5. Learned counsel for the appellant would submit that since the allottees have agreed to get the one bedroom houses as per the agreement though they paid some of the installment and in few cases the entirety amount was paid until the registration is done, it cannot be subject of question. He would further submit that they having signed the documents i.e. agreement, they cannot question the validity of it after signing. As such, the RERA completely misdirected itself to exercise its jurisdiction as the jurisdiction was barred as per the agreement.

6. The rest of the facts would show that in few of the cases, the allottees have purchased the plot wherein the construction was to be raised as per the agreement, however, when the application was filed before the RERA on an application under Order 7 Rule 11 CPC the said petitions were dismissed. Being aggrieved by such order, the appeal before the Tribunal was filed and the Tribunal has allowed the appeals. Rest of the cases, it would show that the Tribunal has categorically held that the RERA had the jurisdiction to adjudicate the issue which was highlighted by the allottees, as the jurisdiction otherwise was barred under Section 79 of the Act, 2016.

7. The primary objection of the appellants against the order is that the RERA and the Tribunal did not have the power to adjudicate for lack of jurisdiction. It was further stated that project was closed by the promoter before the Act came into force itself. Therefore, the allott