Homebuyer Cannot Be Forced To Take Possession Of Unallotted Flat: Rajasthan REAT
The Rajasthan Real Estate Appellate Tribunal has held that a real estate developer cannot compel a homebuyer to take possession of a flat that was never allotted to him and cannot deduct administrative charges from a refund when no written Agreement for Sale exists. The tribunal allowed an appeal by a retiree homebuyer and directed the developer to refund the entire amount paid with...
The Rajasthan Real Estate Appellate Tribunal has held that a real estate developer cannot compel a homebuyer to take possession of a flat that was never allotted to him and cannot deduct administrative charges from a refund when no written Agreement for Sale exists. The tribunal allowed an appeal by a retiree homebuyer and directed the developer to refund the entire amount paid with interest within 45 days.
A coram comprising Chairperson Justice Madan Gopal Vyas and Judicial Member Yudhisthir Sharma ruled that “An allottee cannot be forced to take possession of the unallotted unit. ”
The tribunal also reiterated that when possession is not delivered within time, “unqualified right to seek refund of the amount with interest at such rate as may be prescribed in this behalf in terms of para 19 of the judgment rendered by the Hon'ble Apex Court in the matter of M/s.Newtech Promoters And Developers vs. The State of Uttar Pradesh.”
Sharma had purchased a provisional allotment in June 2013 for Unit No. A2-0905 in a VVA Developers Private Limited project at a total consideration of Rs 28.45 lakh. The Gurugram-based retiree paid Rs 6.47 lakh, more than 10% of the sale price, but the developer never executed a registered Agreement for Sale. With the project delayed for years, Sharma turned to the Rajasthan Real Estate Regulatory Authority in 2019 for a refund.
The Authority later offered him possession or a refund after deducting 10% as administrative charges, prompting the appeal.
Sharma's counsel argued that the developer kept issuing demand notices for units never allotted to him and eventually offered possession of an entirely different flat.
It was contended that Sharma could not be forced to accept possession after nearly a decade, especially since his originally allotted block remained incomplete.
Sharma further submitted that collecting over 10% of the consideration without a registered Agreement for Sale violated Sections 13(1) and 13(2) of the Real Estate (Regulation and Development) Act, 2016.
Rejecting the builder's stand, the tribunal noted that multiple demand notices were issued for unallotted units and that even the possession offer was for a flat never booked by the allottee.
It held that under Section 13 of the RERA Act, “it is the duty of the promoter to execute the Agreement for Sale after getting 10% advance amount and it is not the duty of the allottee to execute the Agreement for Sale. Therefore, in such circumstances, non-execution of Agreement for Sale, cannot affect the rights of the complainant-allottee/appellant in the present matter.”
Holding that the project delay was apparent, the tribunal directed VVA Developers Private Limited to refund the entire Rs 6.47 lakh deposited by Sharma, without deducting administrative charges, along with applicable interest, within 45 days.
Case Title: Satish Sharma vs VVA Developers Pvt. Ltd.
Case Number: Appeal No. 76/2023 (In Complaint No. RAJ-RERA-C-2019-3105)
For Appellant: Advocate Kritika Singh
For Respondent: Advocate Hemant Kothari