Judgment - RAJ-RERA-C-2021-4046
Judgment - RAJ-RERA-C-2021-4046
CORAM:
Mr. Justice Veerendr Singh Siradhana (Retd.), Hon’ble Chairperson
Mr. Rajendra Kumar Vijayvargia, Hon’ble Member (Technical)
PRESENT:
For appellant: Mr. Ajit Singh, Advocate
For respondent: Mr. Ankit Jain, Advocate
ORDER
Reserved on 27th February, 2024
1. Rajasthan Real Estate Regulatory Authority, Jaipur (for short, “the Authority”), vide
impugned order dated 21st December, 2021, adjudicated upon the Complaint No. RAJ-
aggrieved of, and therefore, has preferred the present appeal under Section 44 of the
Rajasthan Real Estate (Regulation and Development) Act, 2016 (for short, “Act of 2016),
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2. Briefly, the essential skeletal material facts, which needs to be noted for the
instituted a complaint petition before the Authority below, the case of the
claiming that a project namely, “Ashapurna Anmol”, Phase-I, situated near the new
building of Rajasthan High Court, Jodhpur, coming with all the basic amenities and
the advertisement published showed the assurance that the possession of Villa will
be delivered within a period of 18 months from 02nd January, 2020. The offer, as
per advertisement dated 20th May, 2020, was valid only for 10 Villas on 30th and 31st
boking on 30th May, 2020, after making payment of Rs.99,000.00 (Rupees ninety nine
thousand only), the registration form was duly signed by the complainant-applicant
and authorized person of the respondent-promoter company on the same day, i.e.,
appellant was allotted Villa No.28 on a total cost of Rs.25,70,000/- (Rupees twenty
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five lac seventy thousand only). The complainant-appellant paid further amount of
Rs.1,58,000/- (Rupees one lac fifty eight thousand only) on 26 th May, 2020,
(Rupees two lac fifty seven thousand only), which is 10% of total cost of the Villa.
4. On enquiring about the project through the official website of “the Authority”,
the complainant-appellant found that the estimated date of completion of the project
is 06th November, 2023, which was in contradiction and double of the date mentioned
completion of the project in the advertisement and other promotional material was
quite different, from the date of completion mentioned in the RERA registration.
on 04th August, 2020, after about two months for cancellation of the booking and
sought refund of the amount deposited by her along with interest @18% per annum.
The respondent-promoter neither refunded the booking amount nor gave any
04th August, 2020, a legal notice was sent through registered post on 02 nd September,
2020, to the respondent promoter stating the entire facts and informed the
two lakh fifty seven thousand only) along with interest @18% per annum, failing
5. On not receiving any response or any action for refund of the booking
No.RAJ-RERA-C-2021-4046, and prayed for refund of the entire booking amount i.e.
Rs.2,57,000/- (Rupees two lakh fifty seven thousand only), along with interest @18%
per annum. Learned Authority, after hearing both the parties, passed the following
“Arguments of both the parties were heard and the records were looked into
and examined. It is correct that an amount of Rs.2,57,000/- was deposited
by the complainant and this is admitted to be correct. The application for
cancellation by the complainant has also been admitted by the respondent.
The only point of contention was the amount to be refunded by the
respondent to the complainant upon her application for cancellation. No
Agreement has been executed between the parties. The booking form,
however, mentions that the cancellation of a unit would attract deduction of
administrative charges equivalent to 1 per cent of the total value of the flat.
The newspaper advertisements on record also show that the project was
promoted that it would be completed within 18 months from 02.01.2020
while the registration documents with this Authority mentioned the
completion date as 06.11.2023. This was certainly misleading the general
public or potential allottees of the project. As per general norms, in the
absence of an agreement between the two parties, upon cancellation, 10 per
cent of the booking amount is deducted as cancellation charges which goes
towards the administrative changes. The deduction to such an extent is
justified and can be allowed. Accordingly, we direct that the respondent
promoter refunds the entire amount deposited by the complainant as
booking amount after deducting 15 per cent of the deposited amount and
taxes, if any, deposited by the respondent with the Government in this
regard. No interest will be payable as no agreement for sale has been
executed between the parties. The amount shall be paid by the respondent-
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promoter within 45 days from the date of this order and submit a compliance
report to this Authority within fifteen days thereafter.
Sd/-
(Shailendra Agarwal)
Member”
appellant filed the instant appeal before this Tribunal, and argued that in the
case the promoter fails to deliver the possession in time then 15% or anything is to
signed by the parties then in such an eventuality, the promoter or builder shall be
bound to make refund of the entire amount deposited at the time of booking the flat
dated 17th March, 2021, passed by Maharashtra Real Estate Tribunal, Mumbai, in
Appeal No.AT00600000041967, titled as Mr. Dinesh R. Humane & Anr. Vs. Primal
Estate Private Limited, and further added that the aforesaid pronouncement of
Maharashtra Real Estate Appellate Tribunal entirely covered the case of the
appellant and although the complaint filed by the appellant has been partly allowed
but an unfair liberty was been given to the promoter to deduct 15% amount is not just
and proper, therefore, upto that extent the order passed by the learned Authority,
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has not violated any terms and conditions of the application/booking form, and,
respondent and appellant either in the agreement or any other document which says
that promoter can deduct any amount deposited, in case of failure on the part of the
the aforesaid subsequent and simple chain of events clearly postulates the genuine
case of the appellant, and therefore appeal deserves to be allowed in the interest of
justice.
9. Per contra, the learned counsel Mr. Ankit Jain, appearing on behalf of the
respondent promoter, raised preliminary objections stating that the impugned order
passed by the learned authority is based upon the facts of the case and promoter-
respondent is not legally liable to refund the entire amount deposited at the time of
booking with or without any charges as the respondent herein acted according to the
10. The learned counsel for the respondent- promoter, though, admitted to the
extent that the advertisement published by the promoter, claiming that a project
namely “Ashapurna Anmol" phase-I situated near the new building of Rajasthan High
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court- Jodhpur includes all the basic amenities and assured the delivery of the villa
within 18 months, but, denied the contents as stated by the appellant and submits
that as per the RERA norms, the date of completion of the project was given by the
website of RERA, and that the basic amenities shall be provided to the allottees at the
time of possession.
11. The learned counsel for the respondent- promoter would contend further that
depositing booking Amount of Rs. 2,57,000.00 (two lakhs fifty- seven thousand only)
and the receipt was executed for the same and further submits that the appellant after
going through all the documents personally and thoroughly agreed to book the unit in
12. The learned counsel for the respondent-promoter further admits that the
the entire booking amount after the cancellation of the booking application. According
executed by the parties till date and the booking form duly executed and signed
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withdraw its allotment in the allocation plan, the builder has the right to
the unit. Similarly, as per the terms & conditions of villa payment schedule,
point (5) States that in case of cancellation by the purchaser, deduction and
13. The respondent-promoter also denies that he failed to deliver the villa
because the complaint was filed at a premature stage since the project was
registered on 04th May, 2020, the unit was booked by the appellant on 30th May,
2020, and the request for cancellation was filed on 04th August, 2020, just after three
months of booking, citing failure to provide the possession of the unit within 18
months. Hence, the respondent-promoter is not bound to refund the entire amount
deposited at the time of booking with or without any charges and thus the impugned
order passed by "the Authority" is based upon the facts of the case, and calls for no
14. We have heard the learned counsel for the complainant-appellant and
record and gave our thoughtful consideration to rival submissions put forth.
2020, displays two major facts – (i) Advertisement says the project as "RERA
certified", and (ii) possession in 18 months which clearly indicated to the prospective
buyers that the project is registered with RERA and will be ready for possession in
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18 months from the date of booking. This attracted the complainant- appellant for
16. A bare perusal of copy of the registration of the project with RERA, would
reflect that the project details of Project, “Ashapurna Anmol” Phase-I shows
Estimated Finish Date as 06th November, 2023, which is in contravention with the
project is different than that what was submitted before the “Authority”, and
17. The Registration form / Booking form for Villa No.28 in “Ashapurna Anmol”
phase-I, is duly signed by both the parties and annexed with General Terms and
conditions of allotment, mentioning the total cost as well as the payment schedule.
allottee, the builder has right to deduct administrative charges equivalent to 10% of
the total amount of the flat/plot/bungalow. However, Clause no.7 clearly indicates
that the detailed terms and conditions shall form part of the Buyer's Agreement
which the applicant shall execute as and when required by the company, and at
the same time, the Clause No.8 of general terms and conditions, clearly indicates
that the general terms and conditions as mentioned above are not exhaustive for the
purchaser of final allotment and sale deed of bungalow, these terms and conditions
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Therefore, this Clause No. 8 makes it evidently clear that the General terms and
upon, but not final, till the final agreement to sale is executed between the parties
and these provisional terms and conditions cannot be enforced as legally binding on
August, 2020, from the complainant appellant, and in furtherance to this, on receipt
of legal notice dated 02nd September, 2020, neither responded nor bothered to
reply to legal notice and did not make any effort, either to give any explanation
about the progress/date of completion of the project or to make any effort to refund
Mumbai in appeal No. AT006000000 41967 - Mr. Dinesh R. Humane & Another v/s
Primal Estate Private Limited, decided on 17th March, 2021, is based on similar facts
and circumstances where in the allottee of flat decided to cancel the booking, on
some additional amount towards cost of the flat. The agreement to sale between
allottees and promoter had also not taken place and the only document executed by
both the parties was booking form. The promoter forfeited the amount paid by
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amount deposited with the promoter. Maharashtra RERA conducted inquiry and
passed an order thereby directing the promoter to refund the booking amount to
Being dissatisfied with the order, allottees preferred the appeal, and
challenged propriety, correctness and legality of the order with Maharashtra Real
Estate Appellate Tribunal. The Maharashtra REAT allowed this appeal and set aside
the order passed, by Maharashtra RERA. The reasons and order are reproduced as
below:-
“9“. Impugned order is passed without proper application of mind and without
correct appreciation of facts of the dispute. In the instant case, Allottees
have submitted printed form of "request for reservation" of the flat on 29th
January, 2019 to Promoter and paid booking amount of Rs. 1,12,393.00.
Admittedly, Allottees have again paid an amount Rs. 4,49,571/- on 1st
March, 2019 towards price of the flat. So, Allottees have paid total amount of
Rs. 5,61,967/- (Five Lacs Sixty-One Thousand Nine Hundred Sixty-Seven
only) to Promoter. Allottees informed the Promoter on 18th May, 2019 that
Allottees have cancelled the booking due to some reason and requested to
return the amount paid to Promoter. Copy of form of "request for reservation"
is at exhibit -A. It is revealed from exhibit-A that it is signed by Allottees.
Detailed information of Allottees is mentioned in the said form. Terms and
conditions recited in Annexure-A are to be followed and observed by
Allottees only. Exhibit-A is not signed by Promoter. Now, as per impugned
order amount is to be refunded in accordance with the booking form signed
by both the parties. It may be pointed out that Annexure-A is not styled as
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"The Applicant(s) shall not withdraw this Request for Reservation. If the
Applicant(s) withdraw this Request for Reservation, the Company shall be
entitled to forfeit 10% of the Sale consideration or the amounts paid by the
Applicant(s) till such date, whichever is less and balance (if any) will be
refundable in 60 days without any interest. Provided however the taxes and
outgoings, including GST if any, already paid (including on the forfeited
amount) or due and payable by the Applicant(s) in respect of the said
Residential Flat shall be borne by the Applicant(s) and the company shall not
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11. It cannot be ignored that agreement for sale between Allottees and
Promoter had not taken place yet. Moreover, Promoter had neither issued
confirmation letter nor allotment letter to the Allottees. The only document
signed by Allottees is the printed form which is styled as "request for
reservation". So, at the time of making request for reservation of the flat on
the part of Allottees, Promoter obtained the signatures of Allottees on such
form of request which consists of 33 different terms and conditions to be
observed and complied by Allottees only. As per clause 17, Allottees have
no right to withdraw their request for reservation. This is absolutely unfair
and unreasonable and one-sided condition imposed on the Allottees.
Allottees cannot be restrained from exercising their right of withdrawing the
request. Right to make request for reservation of flat includes the right to
withdraw such request for reservation of flat. Clause 17 providing forfeiture
of 10% amount of the total price of flat or the amount paid till date whichever
is lesser in case of withdrawal by Allottees is ex facie unreasonable, unfair
and inequitable. Existence of such a condition in the printed form of "request
for reservation" to be filed in by Allottees is against the object and purpose of
RERA. In fact, clause 17 being against statute of RERA, it is not binding on
the parties. So, Promoter is not entitled to forfeit any amount as per clause
17 of request form.
Assuming for the sake of argument that the transaction between Allottees
and Promoter is revealed from request form, we would like to point out that
such unreasonable and unfair transaction cannot be enforced.
The Hon'ble Supreme Court, while deciding the case in favour of an Allottee,
held the view in Pioneer Urban Land and Infrastructure Vs. Govindan
Raghavan in Civil Appeal No. 12238 of 2018 on 02.04.2019 signifying that
court will not enforce an unreasonable, unfair contract or an unreasonable
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and unfair clause in a contract where contracting parties are not equal in
bargaining power and where a man has no choice or rather a meaningful
choice but to give his assent to a contract or to sign on the dotted line in a
prescribed or standard form... as a part of the contract, however unfair,
unreasonable and unconscionable a clause in that contract or form or rule
may be."
In the instant case, while applying for the flat, Allottees had no choice but to
sign the printed form of request prepared one-sided by the Promoter. Thus,
Promoter cannot take undue advantage of such one sided and unreasonable
condition.
12. Learned counsel for Promoter argued that Allottees have claimed
relief on the basis of clause 18 of "model agreement" for sale as given under
rules of RERA. He also submitted that there is no violation of the provisions
of RERA or rules and regulations thereunder. According to him, complaint
under Section 31 of RERA is not maintainable unless there is violation. He
further argues that clause of forfeiture is given in model agreement under
RERA rules and it is not against the spirit of RERA. He also argued that
Allottees cannot cancel the booking on personal ground for claiming the
refund.
13. In the instant case the transaction of sale and purchase of the flat is
cancelled at initial stage. Allottees merely booked the flat and paid some
amount towards booking and executed letter for request of reservation of the
flat in printed form. Thereafter there is no progress in the transaction and
neither allotment letter nor confirmation letter is issued by Promoter.
Agreement for sale is not executed between the parties. Parties never
reached to the stage of executing agreement for sale. There was no attempt
to execute agreement on the part of either party. In such circumstances,
Allottees cannot claim refund on the basis of binding effect at clause (18) of
"model agreement" for sale under rules of RERA. In fact, claim of Allottees
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“Regulation 39:-
‘25(1)
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ORDER
CC006000000089770 is set-aside.
Promoter shall pay Rs. 5,61,967/- (Rupees Five Lacs Sixty-One Thousand
Nine Hundred Sixty-Seven) to Allottees.
Copy be sent to both the parties and MahaRERA as per Section 44(4) of
RERA.
Sd/- Sd/-
20. It is evidently clear before this Tribunal that the respondent-promoter did not
make any effort to refund the amount till date to the complainant- appellant after
passing of order dated 21st December, 2021 by "the Authority” and neither made
any initiative or keenness to settle the grievance even after filing of the appeal with
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this tribunal, and on the contrary, the respondent-promoter has been utilizing the
had deposited the amount in any Bank, she would have earned interest on his
deposit, Hence, the appellant should not be made to suffer the loss of money when
at the same time her desire, for timely possession, as displayed in the
advertisement, which attracted her for booking a villa in the said project, is also not
21. We are fully convinced that in view of the aforesaid facts, material available
on record, and factual matrix of the case at hand in totality, and also relying on
order passed by Maharashtra REAT bearing similar facts, the impugned order dated
(1) That the respondent-promoter would refund the entire booking amount
deposited by the complainant- appellant along with interest at the rate
prescribed in the Rajasthan Real Estate (Regulation and Development)
Rules, 2017 at SBI highest MCLR + 2%, i.e. 8.00 + 2, i.e.,10.00% from
the date of deposit, till the date of refund of amount.
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23. A copy of this order be transmitted to the learned counsel for the
party/parties and RAJ-RERA, Jaipur.
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