Date of Order: 23.10.2024   

ORDER

1. Since all the complainants are having identical facts and similar questions of law, the present complaints are being disposed of by a common order. Copies of the orders be placed in the respective files.
2. The factual matrix of the cases is that the complainants, in their individual capacity, have filed complaints under section 31 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as ‘the Act’) with regard to the project ‘EXCLUSIVE 444’ bearing registration No. RAJ/P/2018/805. The details of the complainants are mentioned in the Table below:-

3. In complaint at S.No. 1, the respondent promoter furnished reply contending that the complainant approached the respondent as real estate broker assuring booking of 10 units. Believing him, the respondent organised a sale event wherein Rs.1,80,000/- expenditure was incurred but no booking was received. Thereafter, the complainant at S.No. 1 approached the respondent with the complainant at S.No. 2 and an amount of Rs. 1,00,000/- was deposited by the complainant at S.No. 1 for booking of unit No. A-1201 and Rs. 2,00,000/- by the complainant at S.No. 2, to whom a unit was allotted. It was further stated that the complainant at S.No. 1 assured that he will bring more allottees for booking. Considering that, two iphones amounting to approximately Rs. 70,000/- to Rs. 80,000/- were given to the complainant. Thereafter, the provisional booking of complainant was cancelled on his no response. The total sale consideration of unit No. A-1201 was around Rs. 60,00,000/- to Rs. 70,00,000/- and even the 10% amount of sale consideration was not paid.  No further payment was made beyond Rs. 1,00,000/- since 2014.  Therefore, the respondent prayed to dismiss the complaint.
4. The complainant at S.No. 1 filed rejoinder stating that the respondent issued lucrative brochure advertising the amenities which were not being developed. No promotional event whatsoever was organised by the respondent and that the co-allottee Anita Nawani (complainant at S.No. 2) was his relative and both the complainant and Anita Nawani had booked the flats. The complainant has not received iphones in lieu of promotional gifts. The complainant has within a week from booking withdrawn from the project.
5. In the complaint at S.No. 2, reply has been filed on behalf of the respondent stating that the brochures were only informative and not lucrative. A 2 BHK flat No. C-609 in Tower-C was booked by the complainant. The complainant took due advantage of scheme of getting iphone amounting to Rs. 40,000/- on booking. The complainant, after taking advantage of the scheme, approached the respondent for cancellation but she was informed that cancellation can only be permitted after deducting the expenses incurred in the scheme offered. The booking amount was less than 10% of total sale consideration which was 37,00,000/-. Therefore, the complainant is not entitled for any refund and the amount stands forfeited. The delay in the project was not occurred due to the respondent. In spite of facing adverse circumstances, the respondent put best efforts to complete the project and has obtained SWAMIH fund and an extension till September 2023. Some reasons, which were beyond the control of the respondent, namely, were – (a) Hon’ble Supreme Court’s order to restrain the 82-mining lease/quarry holders from carrying out mining activities; (b) Notices issued by Pollution Control Department restraining the ongoing construction activities in Delhi and NCR including Rajasthan; (c) Demonetisation; and (d) Covid-19 pandemic. Therefore, it has been prayed that the complaint be dismissed and complainant be directed not to raise any claim against unit No. C-609.
6. The complainant filed rejoinder stating that despite passing of 10 years, no refund of the deposited amount has been made till date.
7. In complaint at S.No. 3, reply has been filed on behalf of the respondent stating that matter may be transferred to the Conciliation Forum of the Authority. The respondent had been sanctioned SWAMIH Fund on 03-03-2021 and its first instalment was disbursed in December, 2021. Development work was geared up in January, 2022 and the respondent developer has put all sincere efforts to complete the project. Block-A of the project is almost completed and the respondent has obtained completion certificate in respect of Block-B and Block-C. The complainant has miserably failed in making the payment of due amount. Considering the SWAMIH Fund and COVID-19 Pandemic this Authority has also granted extension to the project. The brochures were only informative and not lucrative.  The respondent is near to completion of the project as on date and the complainant has failed in making payment of any amount over and above.  
8. The Complainant at S.No. 3 filed rejoinder stating that despite passing of 7 years till date the project is far from completion which was to be delivered in April, 2018 as per Agreement to Sale. The respondent issued lucrative brochure advertising the amenities which were not being developed. The complainant has deposited an amount of Rs. 84,31,377/- till date and this amount is more than 80% of total sale consideration and the respondent themselves admitted before this Authority that upto 26.05.2022, the project was only 50% complete. Hence, the amount paid to the respondent developer was much more in adherence to the construction linked payment plan. Therefore, shifting of onus on the complainant for non-payment is baseless.
9. Counsel for the complainant argued that an amount of Rs. 1,00,000/- in complaint at S.No. 1 and Rs. 2,00,000/- in complaint at S.No. 2 has was deposited as booking of the flats bearing No. A-1201 and C-609. Mail was sent after a week of booking to cancel the same.
10. Counsel for the respondent in complaint at S.No. 1 argued that total sale consideration was around Rs. 60.00 lakh/70.00 lakh and booking amount was only Rs. 1.00 lakh. It was also argued that the complainant promised to bring more allottees and will help in marketing, as such, iphones were distributed. Section 18 of the Act comes in picture only after Agreement to Sell is executed but in the present matter, no Agreement to Sell was executed.
11. Counsel for the complainant in complaint at S.No. 3 argued that the complainant booked a flat bearing No. 1211 in Tower-A and paid an amount of Rs. 84,31,377/-. More than 80% of total sale consideration was paid upto 30.06.2017 and not even partial completion certificate was obtained. As per Agreement to Sell, possession was to be handed over by April, 2018. No demand notices were given by the respondent to the complainant after 2018. Delay is also accepted by the respondent. The complainant prayed for possession with delay interest since 2018.
12. Counsel for the respondent in complaint at S.No. 3 argued that the project is near to completion and completion certificate will be obtained within a month. The complainant had delayed in making payment of remaining instalments.
13. Heard the arguments and perused the record.
14. Regarding the complainants at S.No. 1 and 2, the respondent has not denied the fact that they had deposited Rs. 1,00,000/- and Rs. 2,00,000/- respectively. The fact that the respondent has admitted giving iphones to both these complainants in view of the fact that they would bring more allottees for booking, smells of a scam.  They could not even furnish any documentary proof of having given those iphones.  In any case, the whole exercise appears to be fraudulent.  The respondent has enjoyed these amounts for the last ten years.  Hence, the respondent promoter is directed to refund the deposited amount without interest to the complainants at S.No. 1 and 2.
15. Regarding the complainant at S.No. 3, more than 80% of the sale consideration has been deposited by the complainant and the complainant has prayed for possession with delay interest. The respondent has also indicated that the project is near completion and completion certificate will be obtained soon.  Hence, the respondent is directed to give offer of possession to the complainant as soon as completion certificate is obtained.  Since there has been inordinate delay, the respondent is directed to pay delay interest from the expected date of possession, i.e., 15.04.2018 till the offer of possession is made after obtaining completion certificate at the prescribed SBI highest MCLR + 2%, i.e., 9.10 + 2 = 11.10%, excluding moratorium period, if any.

(Veenu Gupta)

Chairperson