Appellant entitled to refund due to unfair agreement and failure to meet delivery obligations as per the Real Estate Act.

JUDGMENT :

J. NISHA BANU, J.

The present Civil Miscellaneous Second Appeal has been filed against the order passed by the Tamil Nadu Real Estate Regulatory Appellate Authority (TNRERAT) dated 07.08.2023.

2. The appellant herein filed a petition u/s 31 of the Tamil Nadu Real Estate Regulatory Authority Act, 2016 for refund of the amount paid towards the purchase of an Apartment with interest and cost, and the same was disposed of by the Appellate Authority by framing and answering the following 2 questions:-

(i) Whether the handing over of the flat is delayed warranting refund or not and what is the relevant date to decide the issue of delay?

(ii) What are reliefs the complainant is entitled to?

wherein, the Regulatory Authority, answered the 1st issue that the project was handed over to the complainant within the mutual agreed date and there was no delay. Hence, no refund could be ordered. The 2nd question was answered by giving liberty to move the adjudicating officer by claiming compensation.

3. The Appeal by the Appellant before the Appellate Authority was dismissed on 07.08.2023 holding that the Appellant has withdrawn his decision to cancel the booking by entering into an agreement dated 10.01.2020. Even after seeing the completion certificate by mail dated 20.09.2019, the Appellant did not come forward to pay the balance amount, therefore, the appellant is not entitled for refund.

4. Heard Mr. N. Muralikumaran, learned Senior Counsel and the Mr. Kuberan, learned Counsel for the Respondent.

5. Both the Regulatory Authority as well as the Appellate Authority has rejected the claim of refund holding that the Appellant had entered into an agreement on 10.01.2020 with the Respondent. The Appellate Authority also had held that the completion certificate of the project completion was sent by email to the Appellant on 20.09.2019.

6. Both the Authorities have failed to take note of the violations committed by the respondent particularly that of collection 92% of sale consideration even without entering into an agreement, which is a blatant violation of section 13 of the RERA Act. Even assuming that the said violation stands waived off by entering into an agreement on 10.01.2020, there even, the date of delivery was accepted to be 30.01.2020 and therefore the appellant was well within his rights to seek refund of the amount by filing an application in the month of March, 2020. It was also not disputed by the respondent that there was no communication made as agreed in clause 4(b) of the agreement wherein it was agreed that the respondent would intimate the appellant in writing of the completion of the project and thereafter on paying the remaining sale consideration the Appellant is to take possession within 15 days thereof.

7. When the Authority has come to the conclusion that there was a delay in delivery of the flat and the Appellant is entitled for compensation, the Authorities should have ordered refund of the advance amount when admittedly the possession was not ready, even as on 10.01.2020 when 92% of the advance amount was received as early as 2018.

8. The so-called email communication dated 20.09.2019 cannot be a basis for denying refund to the Appellant, as the communication made on 20.09.2019 speaks only of the completion certification which is different from occupancy certificate. Moreover, as rightly pointed out by the Senior Counsel for the Appellant, if the apartment was in a habitable condition as early as 2019 there would not have been any need for the respondent to commit 31.01.2020 as the date to endeavour delivery of possession. The Act also contemplates only takin