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IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.R.ANITHA, J.
Unnikrishnan Chandran Pillai - Appellant
Versus
Tata Reality Infrastructure Ltd. -Respondent
M.S.A.Nos.04, 05 of 2021
Decided on : 14-07-2022
Real Estate (Regulation and Development) Act, 2016 - Section 58, 12, 14, 13, (1), 11(5), 71, 3,18, (1) and 19,(4) - Kerala Real Estate Regulatory Authority - Section 18 - Army Act, 1950 - Section 122 - Kerala Real Estate (Regulation & Development) Rules, 2018 - Rule 37, 33(1) and 34(1), 36(1), 37(1), 10, (2), 20, (21) - Residential Apartment Project - Letter to Cancel Booking - Return of Advance Amount - Whether Clause 21 of Annexure A of Rules, 2018 forms part of Rules since same is included as part of statutory form of agreement for sale - Whether Clause 21 has to be treated as a mandatory Rule especially in view of note attached to Annexure A Form - Whether term “in accordance with terms of agreement for sale” as used in several provisions of Act refers to terms and conditions contained in Annexure A to Rules, 2018 – It seeks to establish symmetry of information between the promoter and purchaser, transparency of contractual conditions, set minimum standards of accountability and a fast-track dispute resolution machanism. The Act, 2016 is a beneficial legislation intending to safeguard the interest of consumers as well as promoters by imposing certain responsibilities on both. So, bearing in mind the great objectives with which the Act has been promulgated if at all it could not redress the grievance of consumers like the appellant very purpose of Act would become otiose.(Para 39)
Finding of the court: Statement of objects and reasons of Act also points that Act has been established for regulation and promotion of real estate sector and to ensure sale of plot, apartment, building etc in an efficient and transparent manner and to protect the interest of consumers in real estate sector - It is to ensure greater accountability towards customers, consumers and to reduce frauds and delays, Act has been promulgated - It seeks to establish symmetry of information between promoter and purchaser, transparency of contractual conditions, set minimum standards of accountability and a fast-track dispute resolution mechanism - Real Estate (Regulation and Development) Act, 2016 is a beneficial legislation intending to safeguard interest of consumers as well as promoters by imposing certain responsibilities on both - So, bearing in mind great objectives with which Act has been promulgated if at all it could not redress grievance of consumers like appellant very purpose of Act would become otiose - In result, order stands modified and Kerala Real Estate Regulatory Authority, is also directed to reconsider complaint filed by appellant for return of advance amount with interest and pass fresh orders in accordance with law within two months from date of receipt of certified copy of this judgment in light of principles of law discussed above
Result: Ordered accordingly.
JUDGMENT :
These appeals have been filed under Section 58 of the Real Estate (Regulation and Development) Act, 2016, against the common order dated 12.08.2021 in REFA Nos.21 & 27 of 2021 on the files of the Kerala Real Estate Appellate Tribunal, Ernakulam.
2. M.S.A.No.4/2021 has been directed against the order in REFA No.21/2021 which was preferred against the order passed by the Kerala Real Estate Regulatory Authority (for short, K-RERA), Thiruvananthapuram on 16.10.2020 in Complaint No.185/2020 and M.S.A.No.5/2021 has been directed against the order in REFA No.27/2021 which was filed against the order of the learned Adjudicating Officer (A.O.) attached to K-RERA dated 23.04.2021 in CCP No.110/2020.
3. Appellant booked an apartment in July, 2019 in the multi-storied residential apartment project named 'Tritvam' at Marine Drive in Kochi launched by the first respondent. He paid total amount of Rs.16 lakhs towards advance amount. Advance payment was received by the first respondent before executing the agreement as provided under Section 13 of the Act. However, in October 2019, the promoter requested the appellant to make payment of the amount required for registration of the sale agreement. For that appellant requested by letter to cancel the booking of the apartment on the ground of inability to raise the money and also requested the promoter to return the advance amount of Rs.16 lakhs paid by him, to which, the promoter sent a reply letter intimating that out of Rs.16 lakhs received, an amount of Rs.15,16,667/-is liable to be forfeited in view of the default on the part of the appellant and expressed willingness to return Rs.83,333/-. Aggrieved by that reply, the appellant approached K-RERA with a complaint No.185/2020, claiming advance payment with interest along with Rs.5 lakhs towards compensation. Further he made a request for imposing penalty for violation of Section 13.
4. The respondents contended that the complaint is not maintainable before K-RERA and contended that provisions of the Act would not apply. The claim is also contended to be not maintainable under Section 18 of the Act. K-RERA dismissed the complaint reserving the right of the appellant to approach the Adjudicating Officer in Form N under Section 71 of the Real Estate (Regulation & Development) Act, 2016 r/w. Rule 37 of the Kerala Real Estate (Regulation & Development) Rules, 2018. Against which, REFA No.21/2021 was filed.
5. Appellant also filed CCP No.110/2020 before the A.O. claiming the advance amount of Rs.16 lakhs with interest and also compensation of Rs.5 lakhs. The A.O. dismissed the complaint finding that the power to order return of amount with interest is upon the K-RERA. It is also found that claim under Section 18 of the Act is not maintainable since he has made a claim on the ground of his own default and not on account of any default on the part of the respondents. Aggrieved by that order REFA No.27/2021 was filed before the Kerala Real Estate Appellate Tribunal (in short 'Tribunal') and by the impugned common order, Tribunal disposed the matters and the operative portion of the order reads as follows:
2. When the claim of the allottee is only for advance amount with interest, the jurisdiction to decide the same shall be with the Real Estate Regulatory Authority, and the Adjudicating Officer shall be the exclusive authority when the claim is only for compensation under Section 12, 14, 18 and 19 of the Act.
3. When an issue regarding registration is raised before the Adjudicating Officer, as to whether a given project is liable to be registered under the Act, the Adjudicating Officer shall direct the party to approach the Real Estate Regulatory Authority for orders regarding registration within such time fixed the Adjudic
Section 37 provides that K-RERA for the purpose of discharging its functions under the provisions of Act or Rules or Regulations can issue directions from time to time to promoters allottees or real ....
The distinction between refund of amount and compensation under the 2016 Act, and the power of the Regulatory Authority and the Adjudicating Officer to decide such matters.
The Real Estate (Regulation and Development) Act, 2016 provides distinct remedies for refund and compensation, and the unqualified right of an allottee to get a refund of the amount deposited with th....
(1) Parliament has power to legislate even retrospectively to take into its fold pre-existing contract and rights executed between parties in larger public interest.(2) Real Estate (Regulation and De....
The Real Estate (Regulation and Development) Act does not grant promoters the right to claim compensation from allottees, and such claims must be pursued in civil court.
The Real Estate (Regulation and Development) Act does not provide promoters with a substantive right to claim compensation from allottees; claims must be pursued in civil courts.
When complainant confines grant of interest to a lesser amount than statutory interest, then Regulatory Authority shall confine the same to rate of interest claimed and in such cases statutory intere....
The court upheld the requirement for total deposit of compensation and interest before hearing appeals under the Real Estate Act, affirming RERA's jurisdiction over disputes involving landowners as a....
Enforcement of Act, 2016, comes under the purview of ‘promoter’, as defined under Section 2(zk) of Act, 2016, and necessary compliance of pre-deposit, as enshrined under Section 43(5) of Act, 2016
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