REMEDIES AVAILABLE TO HOMEBUYERS IN DELAY OF POSSESSION: A SIGH OF RELIEF

Anshika Vashishtha & Varun Mishra, FInal Year Law Student, Institute of Law, Nirma University, Ahmedabad.

Introduction

In the new developing era, where everything is moving at a fast pace, the real estate sector also moving towards its peak. Many people aspiring for good prospects for growth in the real estate sector invest in this sector. These investors are known as homebuyers. They, with the hope of timely possession of their flats or apartment, invest their money. Unfortunately, they generally have to face a delay of possession of their property and thereby, land into a situation where they feel trapped with no remedies available as they have already invested their money without any return.

Earlier, there were not proper remedies for homebuyers, and the developers used to take undue advantage and deliberately delay in possession of the apartments. However, with the growth of the real estate sector, the protection for buyers has increased. Now, they have various remedies in different forums. These remedies can be seen as a ray of light for the hopeless homebuyers. Now, forbuyerswho are suffering badly due to delays in the real estate projects, ample remedies are available which can be availed by them as per their convenience. The process and manner of relief depend upon the law one opts for.

Prior to the enactment of the Real Estate (Regulation and Development) Act, 2016, and the Insolvency and Bankruptcy Code, 2016, homebuyers had no proper or well-defined remedies against the builders for the delayed possessions of their homes and had no voice against the builders. Homebuyers had to face various problems like the delay of possession, delay in completion, and the refund of money invested. But after the enactment of this law homebuyers have got the perfect remedy, now they can ask for the refund with interest or can ask for the possession with interest for delay. Alternatively, theycan initiate insolvency proceedings under IBC, 2016 against the builder/developer. Furthermore, they can proceed as an aggrieved consumer under the Consumer Protection Act 2019 as homebuyers come under the definition of consumers under the Act thereby providing them full right to seek redressal and approach any of the consumer forums at the district, state, and central level. A buyer can always approach specialized forums created under Company Law (i.e. NCLT & NCLAT).

Remedies available under the Consumer Protection Act, 2019:

Homebuyers can file a complaint in their respective consumer forum under the Consumer Protection Act in case of delay in possession.A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to deficiency. There is a fault, shortcoming, or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service[1].

Respective consumer forum where the complaint is been filed are:

  1. District Commission: If the value of goods or services paid does not exceed Rs.1Crore, a complaint can be filed in the District Commission within its local limit[2].
  2. State Commission: If the value of goods or services paid is between Rs. 1 Crore and Rs. 10 Crores, a complaint can be instituted in the State commission within its local limits[3].
  3. National Commission: If the value of goods or services paid does exceed Rs. 10 Crores, a complaint can be instituted in the National Commission within its local limits.[4]

In the case ofPyarideviChabiraj Steels Pvt. Ltd. Vs National Insurance Co. Ltd.[5], National Consumer Disputes Redressal Commission held that only the value of the consideration paid must be taken into consideration while deciding the pecuniary jurisdiction and not the value of goods or services purchased.Hence, it is explicit from this judgment,to decide pecuniary jurisdiction, the advance money paid by the buyer must be taken into consideration and not the entire purchase amount of flat or apartment.

In the case of Shalabh Nigam v. Orris Infrastructure Pvt. Ltd. &Anr[6].,a complaintwas filed by the Shalabh Nigam who bought a flat in the luxury housing project Greenpolis, Gurgaon in the year 2012 for which he paid the amount of Rs 90 Lakhs. Respondent failed to deliver the project in time, therefore, the buyer filed a complaint in the national forum. It was held that the builder has to pay compensation at the rate of 6% per annum on the total deposit for the delayed period even after handing over possession and in case of non-delivery of flat by the end of September 2019, the builder has to refund the entire amount at the rate of 10%.

In Shalabh Nigam[7] NCDRC establishedthe rule that homebuyers have the right to ask for a refund if the possession is been delayed particularly beyond one year.

Remedies available under RERA

Dispute between builders and home buyers has lasted for years before the consumer forum. Buyers had no option but to fight for years to get justice, there was no adequate remedy available to buyers. For speedy disposal of real estate matters and to provide timely justice to homebuyers, the need for a sector-specific forum was felt. Consequently, in the year 2016 REAL ESTATE (REGULATION AND DEVELOPMENT) ACT, 2016, came into being. RERA is the finest remedy for homebuyers as filing complaints with the RERA is very convenient it is due to the fact that RERA has no pecuniary limitation in contrast to the consumer forum which has a pecuniary limitation. Furthermore, RERA is a regulatory as well as adjudication authority, it is vested with the power to investigate a matter and issue notice on its own motion.[8]It has the power to punish the defaulter builders whereas the consumer forum has not vested with such powers.

As per Section 18 of RERA, when there is a delay of possession by the promoter or developer, the allottee has two choices, either he can withdraw from the project and the developer has to return the entire amount received by him in respect of that flat with interest or he can continue with the project and in that case, the promoter will have to pay himevery month’s delay till handling of possession of the property.[9] The rate of interest payable to allottee provided under RERA rules, differs from state to state. Further, Section 31 of RERA stipulates the that a complaint can be filed with the Regulatory Authority by the allottee or association of allottee if there is a contravention of any provision of this Act.[10]

Further, Section 79 of RERA categorically debars other civil courts to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered by. According to this section, RERA has exclusive power to adjudicate upon real estate matter. [11]

The question raised here is that whether consumer forum also barred to entertain real estate matters and finally the issue settled by the apex court in the case of Pioneer Urban Land and Infrastructure Ltd &Anr vs. Union of India &Ors,[12] it was held that remedies available to the homebuyers are concurrent and homebuyers can avail any of the remedy available to him, it is up to them. They can approach either a consumer forum or a regulatory authority set up under RERA or initiate insolvency and bankruptcy proceedings against the developers. Thus, the provisions of RERA are not exclusive and go parallel with the other available remedies.

The question again raised before Delhi High Court in the case of Messrs M3M India Private Limited &Anr v. Dr. Dinesh Sharma &Anr (CM (M)1.[13]In this case, the developers contended that to find out whether CPA and RERA provide concurrent remedies, Section 79 of RERA must be taken into consideration. The conclusion recorded in Pioneer, “Regarding the concurrent nature of remedies under CPA and RERA, forms neither the ratio decidendi nor obiter dicta and is, therefore, not binding.”Further, it was contended that concurrent remedies apply only to cases where complaints under the CPA were instituted prior to RERA coming into force by reference of Section 71 of the RERA.

The Court held that there is no warrant for limiting the Supreme Court’s conclusion. Section 71 was used as an example of a parallel remedy and it doesn’t intend to conclude that the concurrent jurisdiction is for only pending CPA complaints and not for ones instituted in the future. Therefore, both pending and fresh complaints can be filed in any of the forums as they have concurrent jurisdiction.

Mahesh Pariani V/s Monarch Solitaire LLP[14]

In this case, Maha RERA held that when a buyer enters into an agreement to receive a profit share in the project as an investor, he would be covered under the definition of co-promoter. This means investors are promoters only. This forum is created to address allottee’s grievances, not investors. Thus, investors are not entitled to get the benefit of RERA provisions.

Krishan Wats vs. CHD Developers Ltd.[15]

In this case, the project has been 40- 45% completed and buyers were asking for a refund. The court held that “Keeping in view the interest of allottees and the completion of the project, the authority is of the view that rather than allowing the refund, the complainant is entitled to delayed possession charges.” Similar view was also taken in the case of AmanSood vs. BPTP Ltd.[16] Thus, it can be concluded from these judgments that it is the court’s discretion to allow for a refund if in case the court finds that when almost half of the project is completed and taking into consideration the interest of all allottees and completion of the project, the court can deny for refund however the buyer will get delayed possession charges.

Remedies available under Insolvency and Bankruptcy Code,2019

Recent amendment of august, 2019 provides recognition of financial creditors to the homebuyers[17]. Therefore, the financial creditor homebuyers can seek the remedy for delayed possession of their flat under the Insolvency and Bankruptcy Code, 2016[18]. However, aggrieved from the amendment of August, real estate companies filed a writ petition challenging the constitutional validity of the amendment in the Hon’ble Supreme Court of India.The Court upheld the constitutionality of the amendments and rejected the petition[19].

A single homebuyer cannot file an application for initiating corporate insolvency against the real estate company or builder. The application must be filed jointly by a minimum of 100 of such homebuyers under the same real estate project or not less than 10%  of the total homebuyers under the same real estate project, whichever is less[20].

Conclusion

To conclude, mulling over the above-mentioned judgments and statutory provision, It would not be wrong to state that thehomebuyers have to no longer suffer and developers cannot take undue advantage of their dominant position anymore. The intolerance of courts against the delays and defaults by the real estate developers can be seen from the recent judgments. There are some instances where the court even issued orders to auction a builder’s property to compensate a homebuyer for the delay in the delivery of the flat. Further, in Amrapali Housing project, the court ordered the National Building Construction Corporation to complete buyers’ dream homes and also directed the banks and authorities to recover their dues from the other property of the group but not from the homebuyer.[21]

These instances show that the RERA indeed proved to be a tranquilizer that has lessened the pain of homebuyers and RERA is the best remedy among all the available remedies. Nevertheless, some grey areas are required to be addressed by RERA, as the implementation of RERA depends on the state.Therefore, it is necessary that the implementation should be done properly there should be a check on the implementation process. 


[1]. Wg Cdr.Arifur Rahman Kan and Aleya Sultana v. DLF Southern Homes Pvt Ltd, (2020) M.A.N.U. S.C. 667(India)

[2] The Consumer Protection Act,2019, No.35, Acts of Parliament, 2019, Sec.34(India).

[3]. The Consumer Protection Act,2019, No.35, Acts of Parliament, 2019 Sec.47(India).

[4]The Consumer Protection Act,2019, No.35,Acts of Parliament, 2019Sec.58(India).

[5] Consumer Case No. 833 OF 2020 (India).
[6]Consumer Case No.1702 OF 2016.

[7]Id.

[8] Real Estate(Regulation And Development) Act,2016, No. 16, Acts of Parliament, 2016, Sec. 35 (India).

[9]The Real Estate(Regulation And Development) Act,2016, No. 16, Acts of Parliament, 2016, Sec. 18 (India).

[10] The Real Estate(Regulation And Development) Act,2016, No. 16, Acts of Parliament, 2016,  Sec. 13 (India). 

[11]The Real Estate(Regulation And Development) Act,2016, No. 16, Acts of Parliament, 2016,  Sec. 79 (India).

[12] (2019)8 S.C.C. 416 (India).

[13] A.I.R. 2020 Delhi 23.

[14]MahaRERA Complaint No. CC006000000000789 (India).

[15](2019)  M.A.N.U. R.R. 0213 (India).

[16] (2019) M.A.N.U. R.R. 0323 (India).

[17]The Real Estate(Regulation And Development) Act,2016, No. 16, Acts of Parliament, 2016,  Sec. 5(8) (f) (India).

[18]The Real Estate(Regulation And Development) Act,2016, No. 16, Acts of Parliament, 2016, Sec.7 (India).

[19] Supra note 1.

[20]The Real Estate(Regulation And Development) Act,2016, No. 16, Acts of Parliament, 2016, Sec.7(1) (India).

[21] (2018)147 S.C.L. 154 (India).

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