HIGH COURT OF CHHATTISGARH - No appeal will be maintainable against an interim order before the Division Bench

In the Matter of Amrit Homes Private Limited vs M/S Las Vista Residents Welfare  WA No.470 of 2019 at HIGH COURT OF CHHATTISGARH, BILASPUR held that appeal is maintainable only as provided under the statue; particularly Section 2 of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006. Section 2(1) carries a 'proviso' as well, which clearly says that no appeal will be maintainable against an interim order. This scope of the said proviso has been explained by a Full Bench of this Court as per the judgment date 25/01/2017 passed in WA No.255/2016, which says that only, if the issue has been decided creating a finality to the lis, will the appeal be maintainable before the Division Bench.

Supreme Court of India -Charge of the money paid by the home buyers must be treated as the highest priority.

in the matter of Bikram Chatterjee and others vs. Union of India and others in Writ Petition (C) No.940 of 2017 and other connected matters, (MANU/SC/0947/ 2019) The Apex Court held that charge of the money paid by the home buyers must be treated as the highest priority. It also held that "the public trust doctrine enshrined under Article 21of the Constitution of India is very much applicable upon the authorities and a duty is cast upon them to act fairly and reasonably in order to promote the public good and public interest."

Hence, amount charged by builder on account of delay in payment of installments which comes of ₹2,69,675/- approximately stands quashed.

 TDI Infrastructure Ltd. vs Sukhbir Singh decided on 25.03.2021. Haryana RERA Panchkula

Authority has passed a detailed order vide which settled all issues and are reproduced here in brief and be read as part of this order also:

a. Stamp Duty / Misc. expenses: Authority asked respondent to withdraw charges of amount ₹11,800/- subject to the condition that all these expenses will be borne by the consumer himself at the time of conveyance deed is executed and registered.

b. Club Membership Charges: On raise a demand of ₹50,000/- by the builder on account of club membership charges which is presently not functional, therefore, the Authority decides that these charges shall be payable by the consumer only when the club becomes functional.

c. Increase in super area: Authority directed that the area covered by staircase as per principles laid down in earlier decisions by HRERA, cannot form part of super area and the same is liable to be deducted from the super area to calculate the actual cost. Considering the cost incurred by builder to construct the staircase, Authority would hold that the builder shall divide the actual cost of the staircase by the total number of flats in the building and then the proportionate cost so arrived shall then be charged from the consumer.

d. Goods and services Tax: The builder is charging GST @ 12% while according to consumer, it should be @ 5%. The Authority directed that, the rate of charging GST by the builder will be based on the date when the conveyance deed is executed and registered in favor of consumer.

e. Interest on account of delay in offer of possession: As per clause 28 of FBA, builder was obliged to give possession to the consumer within 30 months which period had already lapsed in July, 2016. And, since builder offered Fit-out Possession but hedoes not have the occupation certificate (OC) till date, so the offer cannot be considered valid and consumer is entitled to receive interest on account of delay in offering possession from the deemed date of July, 2016 to the date on which a valid possession will be offered to him after obtaining the occupation certificate. Such interest as per decision of Authority in case Madhu Sareen vs BPTP Limited is to be calculated as per Rule 15 of HRERA Rules,2017. 

The HRERA also ordered:

2) Since occupation certificate has not been obtained till date so the Fit-out possession which was offered on 04.04.2019 cannot be considered a legally valid offer.

3) In current situation, when builder himself has failed to deliver a valid possession till date to consumer, he cannot be allowed to charge interest on delay in payment of installments, Hence, amount charged by builder on account of delay in payment of installments which comes of ₹2,69,675/- approximately stands quashed.

that every allegation / averment in the plaint, if not denied specifically or stated to be not admitted in the written statement, shall be taken to be admitted

 In the Matter of Balraj Taneja v. Sunil Madan (1999) 8 SCC 396 at page 404

Honorable Supreme Court of India has held that every allegation / averment of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the written statement, shall be taken to be admitted in accordance to the Order 8 Rule of the Code of Civil Procedure 1908. The denial of the statement of the fact has to be Specific and not Evasive else it will be considered as deemed admitted in the eyes of the law. 

Supreme Court of India - The nature and extent of relief, to which a subsequent purchaser can be entitled to, would be fact dependent.

 In the matter of LAUREATE BUILDWELL PVT. LTD. V/s CHARANJEET SINGH CIVIL APPEAL NO. 7042 of 2019 decided on July 22, 2021 before THE SUPREME COURT OF INDIA

Fact of the Case

• Ms. Madhabi Venkatraman (hereafter “the original allottee”) applied on 29.08.2012 for allotment of a residential flat (No. 7013,(hereafter “the flat”) admeasuring 4545 sq. ft., in Nectarine Tower "PARX LAUREATE" at Sector- 108, Expressway, Noida.

• On 16.10.2012, an allotment letter was issued to the original allottee

• According to the allotment letter, the possession of the flat was to be handed over within 36 months (from the date of allotment letter) i.e., latest by 15.10.2015.

• The original allottee made payment to the tune of ₹1,55,89,329/

• after noticing the slow pace of construction, the original allottee decided to sell the flat

• The purchaser and now complainant alleged that possession was not delivered in October, 2015 as  promised (in the allotment letter).

• The Complainant claims to have visited the builder’s office in last week of January, 2017 and was informed that possession of the said flat could not be delivered till the end of year 2017

• After this, the purchaser sought for refund of the amount paid, from the builder. On 08.03.2017, a legal notice was issued to the builder asking for refund of the amount of ₹1,93,70,883/- with interest

• The builder, Laureate denied the claim

• . It is in these circumstances, that the appellant approached the NCDRC, for direction to the builder to refund the entire sum of ₹1,93,70,883/- with interest at the rate of 24% from the respective dates when the instalments were paid to Laureate. In addition, ₹ 5,00,000/- as compensation and ₹ 2,00,000/- as litigation expenses were sought along with other costs.

• The NCDRC directed the Developer to refund the amount deposited with the developer in respect of subject flat No. 7013 with interest @ 10% p.a

Arguments of the Builder 

• Learned senior counsel submits that since the complainant was not the original allottee but a subsequent purchaser, he could not claim any interest. He relied upon two rulings of this Court in HUDA v. Raje Ram and the recent judgment of this Court in Wing Commander Arifur Rahman Khan and Anr. v. DLF Southern Homes Pvt. Ltd.

• It is submitted that in both these cases, this Court had categorically ruled that when the allottee in a housing project transfers his or her rights in favor of another, such a third party cannot claim equities to the same extent as the original allottee, especially as regards a claim for interest

Analysis and Conclusions:

• this court is of the opinion that the per se bar to the relief of interest on refund, enunciated by the decision in Raje Ram (supra) which was applied in Wg. Commander Arifur Rehman (supra) cannot be considered good law. 

• The nature and extent of relief, to which a subsequent purchaser can be entitled to, would be fact dependent.

• It would no doubt be fair to assume that the purchaser had knowledge of the delay. However, to attribute knowledge that such delay would continue indefinitely, based on an a priori assumption, would not be justified.

• the interests of justice demand that interest at least from that date ( Subsequent allottee purchasing the unit" should be granted, in favor of the respondent.

Punjab RERA - Long unexplained delay in pursuing the matter would obviously be hit by the bar of limitation.

 In the Matter of Indra Duggal V/s Chandigarh Overseas Pvt ltd. Case no. 1769 of 2020 decided on 07.07.2021 Before The Real Estate Regulatory Authority, Punjab

Fact of the Case 

• Unit was allotted on 26.09.2014
• Date of Builder buyer agreement was on 26.09.2014
• Entire payment has also been received by the Respondent.
• Date of Possession was 30.06.2016
• Possession has not been provided

It was held by the Authority That 

• There has been a complete inaction on the part of complainant for a period of nearly 6 years till the present complaint is filed on Aug 2020.
• Such a long unexplained delay in pursuing the matter would obviously be hit by the bar of limitation.
• The Entry at Serial no. 113 of the schedule of the limitation act,1963 provides that the limitation for any proceedings for which no separate period of limitation is provided would be 3 years from the time the right to sue accrues.
• The complaint is being dismissed as being barred by limitation.

The expression "title" conveys different forms of right to a property, which can include a right to possess such property

 In the Matter of Nagen Hazarika (Deceased) ... vs Smt. Manorama Sharma AIR 2007 Gau 62 it was held by the Gauhati High court that "Title" is a broad expression in law, which need not always be understood as akin to ownership. The expression "title" conveys different forms of right to a property, which can include a right to possess such property….”

Supreme Court - The entries in jamabandi are not proof of title

 In Corporation of the City of Bangalore v. M. Papaiah and another (1989) 3 SCC 612 it was held that

 “it is firmly established that revenue records are not documents of title, and the question of interpretation of document not being a document of title is not a question of law.” 

In Guru Amarjit Singh v. Rattan Chand and others (1993) 4 SCC 349 The Supreme Court has held that 

“that the entries in jamabandi are not proof of title”. 

In State of Himachal Pradesh v. Keshav Ram and others (1996), 11 SCC 257 this Court held that 

“The entries in the revenue papers, by no stretch of imagination can form the basis for the declaration of title in favour of the plaintiff.”

The commercial advertisement cannot have the same decree of constitutional protection as in case of social or political speeches.”

 The Apex Court in Hamdard Dawakhana (WAKF) Lal Kuan, Delhi v Union of India 1960 AIR 554, 1960 SCR (2) 671 held that an advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. In this judgment, the court primarily relied on the judgment of the United States Supreme Court in Valentine v Chrestensen for the proposition that "purely commercial advertising" is not protected by Article 19(1) (a) of the Constitution.

In the Matter of Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal reported in (1995) 5 SCC 161 The Supreme Court held that “commercial advertisement no doubt is a form of speech but its true character is reflected by the object for promotion of which it is employed. Only when an advertisement is concerned with the expression or prorogation of ideas that it can be said to be related to freedom of expression and speech. The object and purpose for which advertisement is published is the determining factor. When propagation of ideas and thoughts is inconsequential, but the real purpose and object is the promotion of sales of goods and services and personal benefit without any social purpose, the commercial advertisement cannot have the same decree of constitutional protection as in case of social or political speeches.”

In the Matter of Real Estate Authority, Punjab on its own motion Vs. Singla Builders and Promoters limited, 6 0f 2018 Decided on 08.02.2018 the Authority Penalised the promoter for Rs. 10,000/- for not displaying the registration number in the advertisements.

In the suo moto Matter of Maharashtra Real Estate Regulatory Authority Vs. Sai Estate Consultant Chembur (P) Ltd.(Case No. 1 of 2017) the MahaRERA Authority directed the respondent who is  a registered Real Estate Agent, to withhold the advertisements with immediate effect and rectify all the hoardings by putting MahaRERA registration number on the same. The respondent was directed to  pay a fine Rs.10000/- per day of the violation and accordingly for a violation of 12 days he was directed to pay Rs.120000/-

As per Gujarat Real Estate Regulatory Authority Circular number GujRERA/ Circular/18/2020 of date 04.01.2020 , “The font size of RERA registration number and website address in the advertisements should be mandatorily equal to or larger than the contact details of the proposed project.”  

As per the  Karnataka Rera Circular “The length and breadth of the “RERA REGISTERED'' information must not be less than 10% of the length and breadth (whichever is higher ) of the advertisement issued in print media”

In the Matter of Chandra Shekhar singh Vs. Kul Developers (P) Ltd. Complaint no. AT00500000000004, The Maharashtra appellate tribunal held that when the developer has made a promise of providing 30 Feet road through its brochure and advertisement,though it was the obligation of Municipal corporation,it would become the responsibility of the promoter to provide that.