The court established that a promoter violating the prohibition on collecting excessive advance payments without a sales agreement cannot deny refund claims based on their own shortcomings.

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 .

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:

1. In a case where compensation is claimed by an allottee addition to the advance amount and interest, the jurisdiction to decide the claim shall be with the Adjudicating Officer attached to the Real Estate Regulatory Authority.

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 Adjudi