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Gurugram real estate sector: Tribunal orders realtors to refund earnest money with interest to allottees
The Haryana Real Estate Appellate Tribunal ordered Gurugram builders to refund earnest money with interest to buyers, citing deceptive practices.
Providing relief to real estate buyers, the Haryana Real Estate Appellate Tribunal has ordered two Gurugram-based realtors to refund earnest money along with 10.85% interest to the allottees.
Chairman of the appellate tribunal Justice (retd) Rajan Gupta, member (judicial), Virender Parshad and member (technical) Dinesh Singh Chauhan in its October 1 order said that the tendency of the promoters to cheat innocent buyers by adopting clever tactics needs to be curbed and stern measures are required for this purpose.
“The appeals are thus allowed. The respondent promoter would be liable to refund the earnest money along with interest @ 10.85% per annum from the date of deposit till realisation within 90 days of this order. In case refund is not made within 90 days, the provisions of Section 64 of the RERA Act will come into play and the promoter would pay a penalty of ₹10,000 per day till he refunds the amount to the allottees,’’ the Tribunal ordered. The two promoters in the matter are Roshni Builders Private Limited and Chaahat Homes Infrastructure Private Limited.
Hearing three appeals filed by the allottees against a March 7, 2024 order of Haryana Real Estate Regulatory Authority, Gurugram, the appellate tribunal said that an advertisement was published by the promoter offering ‘3 deals in one’ to the general public. The applications were invited for the project, namely M3M Broadway in Sector 71, Gurugram to be floated by the promoter. It was given out that the allottee would have to pay only 10% of the amount on booking and balance on offer of possession. It was also stated that the allottee could exit any time from the project. The appellant-allottees applied in response to the advertisement and were allotted a commercial unit measuring 403 square feet for total consideration of about ₹1.20 crore. The allottees paid an amount of ₹12.06 lakh and an allotment letter of August 7, 2020 was issued to them. Due date of possession was stated to be October 31, 2023. The respondent-promoter claims that the allottees were supposed to deposit further 80% of the sale consideration when the respondent-promoter would apply for occupation certificate. The promoter claims that an application for the grant of occupation certificate was submitted on August 31, 2021 but was rejected due to certain technical defects.
A fresh application was submitted on December 1, 2021 and occupation certificate was ultimately granted on December 13, 2021. On November 14, 2021, the allottees had expressed their desire to exit from the project and sought complete refund of the amount remitted by them. They stated that they had an unqualified right to do so in view of the judgment in M/s Newtech Promoters and Developers vs. State of UP.
The appellate tribunal in its order stated that it is evident that the advertisement allured many people to apply for units in project ‘M3M Broadway’, Sector 71, Gurugram. The licence was, however, issued in the name of Roshni Builders Pvt. Ltd, Highrise Propbuild Pvt Ltd.
“The allottees contend that the promoter did not abide by the commitments made by it and started sending demand letters for payment of the balance amount before submitting application for the occupation certificate before the competent authority. As per the allottees, the promoter incorporated different schedules of payment in the allotment letter and builder buyer agreement, being in a dominant position. Needless to say, both the documents were in fine print. Be that as it may, the allottees claim that they sent an email demanding complete refund of the amount deposited by them in view of the failure of the promoter to adhere to the commitments made in the advertisement/brochure and webinar,’’ the Tribunal observed.
The appellate tribunal said that a perusal of the e-mail sent by allottees leaves no room for doubt that the allottees sought refund well in time before the occupation certificate was applied for.
“If the terms of the advertisement/brochure and webinar are taken into consideration, 90% of the balance amount was to be payable by the allottees on offer of possession. In the instant case, however, the allottees sought to exit even before the date of application for occupation certificate by the promoter. We find substance in this plea that the allottees had unqualified right to do so,’’ the appellate tribunal said.
The bench further said the regulatory mechanism of the Act has been put in place to ensure sale of plots, apartments or buildings in an efficient and transparent manner. Wherever it is found that terms and conditions of advertisement are being violated and there is tendency to exploit the allottees, the Authority is required to exercise its powers and to ensure that objectives of the RERA Act are not defeated and provisions thereof are promptly invoked to ensure justice to the aggrieved party. “In our considered view, the Authority has failed to exercise its powers in the instant case. We have thus no option but to set aside the impugned order with a note of caution that every case be evaluated in its own facts and circumstances and available cogent evidence is not ignored from consideration,’’ the tribunal said.
