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.

JUDGMENT :

(M.A. Abdul Hakhim, J.)

1. These four Miscellaneous Second Appeals are filed by the same Appellant who is the Promoter of the Project, under Section 58 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as ‘the RERA’) read with Section 100 of the Code of Civil Procedure.

2. The appellant was the complainant in the Complaint before the Adjudicating Officer claiming compensation from the Allottees of the Project. The Allottees filed Applications challenging the maintainability of the Complaints, and the Adjudicating Officer considered all the Applications together and passed a Common order allowing the Applications, holding that the Complaints filed by the Promoter for compensation under Sections 19(6) & 19(7) of the RERA from the Allottees are not maintainable. The complainants filed Appeals before the Real Estate Appellate Tribunal, and the Appellate Tribunal dismissed the Appeals by a common order confirming the common order of the Adjudicating Officer.

3. The issue to be considered in these MSAs is whether the Promoter is entitled to file a Complaint before the Adjudicating Officer claiming compensation from the Allottee.

4. I heard the learned counsel for the appellant, Sri.C.S.Manu and the learned Standing Counsel for the Kerala Real Estate Regulatory Authority(K-RERA), Sri. C.M. Nasar.

5. The learned counsel for the appellant contended that the Promoter has the right to claim compensation from the Allottees under Sections 19(6) & 19(7) of the RERA. Section 19(6) mandates an obligation to the Allottees to make necessary agreed payments within the agreed time, and hence the corresponding right in favour of the Promoter to claim compensation from the Allottee in case of breach of such obligation is implicit in the said provision. If such obligation is violated and some damage, loss, or injury is caused to the Promoter, the Promoter is definitely entitled to claim compensation under Section 19(6) by filing a Complaint under Section 31. The learned counsel further contended that any aggrieved person can file a complaint before the Adjudicating Officer against Allottees under Section 31 of the RERA. ‘Any aggrieved person’ referred to in Section 31 would also include the Promoter, as complaints against the Allottees are provided therein. The learned counsel further referred to Section 72, in which various factors which are to be taken into consideration for adjudging the compensation or interest are stated and, all of which specifically refer to ‘the default.’ The default may happen either from the Promoter or from the Allottee. It would indicate that in case of default on the part of the Allottee, the Promoter is entitled to claim compensation from the Allottee by filing a complaint before the Adjudicating Officer under Section 31. The learned counsel further contended that in view of the bar of the jurisdiction of the civil court under Section 79, if the Promoter is not allowed to file a complaint claiming compensation before the Adjudicating Officer, the Promoter will be remedy-less when he is legally entitled to get compensation from the Allottee. The RERA is enacted for the purpose of protecting both the interests of the Allottees as well as the promoter. The learned counsel concluded the arguments by praying to admit the MSAs as it involved Substantial Questions of Law.

6. The learned Standing Counsel contented that though the aggrieved person referred in Section 31 includes the Promoter, there is no provision in the RERA enabling the Promoter to claim compensation from the Allottee in any case.

7. In view of the contentions addressed before me, the following questions emerge for consideration.

- Whether any of the provisions in the RERA gives substantive right to the Promoter to claim compensation from the Allottee?

- Whether Section 31 of the RERA enable the Promoter to file a complaint against the Allottee ?.

- Whether Section 79 bars the suit at the instance of the Promoter to claim comp