Calcutta High Court Seeks Timeline From West Bengal Government For Filling Vacancies In WBRERA And WBREAT

Calcutta High Court Seeks Timeline From West Bengal Government For Filling Vacancies In WBRERA And WBREAT

Rahul Parasrampuria v. The State of West Bengal & Others

Case: Rahul Parasrampuria v. The State of West Bengal & Ors.
Case No.: WPA (P) 427 of 2026
Court: Calcutta High Court
Subject: Vacancies in West Bengal RERA and Real Estate Appellate Tribunal (REAT)

The matter concerns a Public Interest Litigation seeking expeditious filling of vacancies in the West Bengal Real Estate Regulatory Authority (WBRERA) and the West Bengal Real Estate Appellate Tribunal (WBREAT).

Background

The petitioner, Rahul Parasrampuria, approached the Calcutta High Court seeking directions for completion of the selection and appointment process for vacant statutory posts, particularly:

• the Judicial Member of WBREAT; and
• a Member of WBRERA.

The petition also sought disclosure of the status of the selection process, the reasons for delay, relevant selection records, and information concerning the vacancies, pending cases and functioning of the two RERA institutions.

Order dated 15 September 2026

On 15 September 2026, a Division Bench comprising Justice Arijit Banerjee and Justice Reetobroto Kumar Mitra directed the office of the Chief Secretary, Government of West Bengal, to file a report specifying:

1. the present stage of filling the vacancies of Chairperson and Judicial Member of WBREAT and Member of WBRERA; and
2. the time limit within which the vacancies would be filled.

The Court also permitted the petitioner to implead the Chief Secretary as a respondent. The matter has been listed for further consideration on 29 September 2026.

Significance from the RERA perspective

The PIL raises an important institutional issue concerning the effective functioning of the specialised RERA dispute-resolution mechanism. The petitioner's case is that prolonged vacancies in WBRERA and WBREAT can result in delays for homebuyers, promoters and other stakeholders and may compel litigants to approach constitutional courts for matters intended to be dealt with by specialised RERA forums. These are the petitioner's contentions, rather than findings finally adjudicated by the Court.

In short: The Calcutta High Court has sought a definite timeline from the West Bengal Government for filling vacancies in WBRERA and WBREAT, with the matter next listed on 29 September 2026

Co-operative Society Without Land or Layout for Real Estate Project Not a Promoter Under RERA: Karnataka REAT

Case Title: V. Suresh Kumar v. BSNL Employee Welfare House Building Co-operative Society Ltd. & Anr.
Case No.: Appeal No. (K-REAT) 3/2026

The Karnataka Real Estate Appellate Tribunal (Karnataka REAT) has held that a housing co-operative society that had neither acquired land for development nor undertaken any real estate project could not be treated as a “Promoter” under the Real Estate (Regulation and Development) Act, 2016 (RERA Act).

The Tribunal consequently held that a complaint seeking relief under RERA was not maintainable before the Karnataka Real Estate Regulatory Authority, as the complainant could not be treated as an “Allottee” and the society did not fall within the statutory definition of a “Promoter.”

A Bench comprising Chairperson Justice J.M. Khazi and Judicial Member Santhosh Kumar Shetty N. dismissed an appeal filed against the BSNL Employee Welfare House Building Co-operative Society Ltd. and upheld the order of Karnataka RERA dismissing the complaint.

No Land Acquired, No Real Estate Project

The Tribunal observed:

“Undisputedly, the Respondent No.1/Co-operative Society has not acquired any land for development and consequently it does not fall into the definition of Promoter and there is no project in existence let alone Complainant could be called as an Allottee.”

The appellant had worked with BSNL for more than 18 years and had become a member of the society, which was formed by BSNL employees with the objective of providing houses or residential plots to its members at relatively lower rates.

According to the appellant, the society represented that sites were available at Madhavanagara and accepted payments towards the proposed BSNL Madhavanagara Project Phase-II, situated off Nelamangala Road.

The appellant paid an aggregate amount of ₹7,66,800 in 2013 and 2014 towards the proposed purchase of a site. However, the site was not delivered or registered in his favour. Despite repeated follow-ups seeking a refund, the amount was allegedly neither refunded nor was the promised site registered.

Society Contended RERA Had No Jurisdiction

Before Karnataka RERA, the society contended that the complaint was not maintainable under the RERA Act.

It submitted that the alleged project was not registered with the Authority and that the receipts issued to the appellant did not constitute allotment letters. According to the society, the amounts were not collected towards any identified or specific plot and no Agreement for Sale had been executed between the parties.

The society further maintained that it had not acquired any land for development. Consequently, there was no real estate project within the meaning of the RERA Act and the society could not be regarded as a Promoter.

It also disputed the appellant's status as an Allottee, contending that no plot or apartment had been allotted or transferred to him.

Karnataka RERA accepted these submissions and dismissed the complaint.

Sections 2(d), 2(zk) and 2(zn) of RERA Examined

Challenging the RERA order, the appellant contended before the Tribunal that the Authority had failed to properly appreciate the evidence and relevant provisions of the Act.

He also argued that since the project remained incomplete, he was entitled to relief under Section 18 of the RERA Act.

The Tribunal examined the statutory framework governing the relationship between a Promoter and an Allottee.

Section 18 provides remedies to an Allottee where a Promoter fails to complete a project or give possession in accordance with the Agreement for Sale. Where an Allottee wishes to withdraw from the project, the provision contemplates refund of the amount paid, together with interest and compensation in accordance with the Act.

The Tribunal noted that:

• Section 2(zn) defines a “Real Estate Project” to include development of land into plots or apartments;

• Section 2(zk) defines a “Promoter” to include a person who develops land into plots or apartments; and

• Section 2(d) defines an “Allottee” as a person to whom a plot, apartment or building has been allotted, sold or otherwise transferred by the Promoter.

Applying these provisions, the Tribunal found that the society had not acquired any land for development and no real estate project was in existence.

Consequently, the society could not be treated as a Promoter and the appellant could not be regarded as an Allottee under the Act.

Membership and Collection of Money Not Sufficient

The Tribunal noted that the society had enrolled members and collected various amounts towards the proposed purchase of sites, which were to be allotted if and when the society developed the requisite project or layout.

However, the mere fact that money had been collected from members towards prospective sites did not, in the circumstances of the case, bring the transaction within the statutory framework of RERA.

The Tribunal therefore agreed with Karnataka RERA that the RERA Act had no application to the dispute and that the complaint was not maintainable before the Authority.

Registration Requirement Cannot Arise Where No Project Exists

The Tribunal also referred to the Supreme Court's decision in Newtech and the Bombay High Court's judgment in Macrotech while considering the jurisdictional issue.

It observed that where a project has not been registered, the Authority must first determine whether the project was one that was required to be registered under Section 3 or was exempt from registration. If registration was not required, the Authority could not assume jurisdiction over the complaint merely on the basis of the alleged transaction.

Section 3 generally requires prior registration of a real estate project before a Promoter can advertise, market, book, sell or offer for sale any plot, apartment or building, subject to the statutory exemptions and provisions applicable to ongoing projects.

In the present case, however, the issue was more fundamental. The Tribunal found that no project had come into existence at all, since the society had not acquired land for development.

Accordingly, the statutory obligations imposed upon a Promoter and the remedies available to an Allottee could not be invoked against the society.

Alternative Remedies Available

While dismissing the appeal, the Tribunal observed that the appellant was not without a remedy. He was free to approach the Registrar of Co-operative Societies or the Consumer Forum for recovery of the amount paid.

The Tribunal also took note of the fact that counsel appearing for the society had made an offer to refund the amount with 6% interest. The appellant, however, did not accept the offer.

Finding no justifiable ground to interfere with the order passed by Karnataka RERA on September 2, 2025, the Tribunal dismissed the appeal.

There was no order as to costs.

Key Takeaway

The Karnataka REAT's decision highlights that the applicability of RERA depends upon the existence of the statutory ingredients of a real estate project, Promoter and Allottee. Mere membership of a housing co-operative society and payment of money towards a proposed future site do not, by themselves, establish the existence of a real estate project or confer the status of an Allottee under RERA where the society has neither acquired land nor undertaken development of the project.

Landowner Liable for Project Registration Despite Development Agreement: Rajasthan RERA

Case Title: Suo Motu v. K.D. Developers
Case No.: F.15 (326) RJ/RERA/C/2024 (RAJ-RERA-Suo Motu-2026-77)

The Rajasthan Real Estate Regulatory Authority (Rajasthan RERA) has held that a landowner cannot evade statutory obligations under the Real Estate (Regulation and Development) Act, 2016 (RERA Act) merely because a development agreement assigns construction and other development responsibilities to a developer.

In proceedings concerning the unregistered multi-storey residential project “99 Avenue” in Jaipur, the Authority imposed a penalty of ₹1 lakh each on Siddharth Landmark LLP, the developer, and Brajesh Saxena, one of the landowners, for contravention of the registration requirement under Section 3 of the RERA Act. The Authority further directed them to apply for registration of the project within 45 days.

Development Agreement Does Not Extinguish Landowner's Statutory Obligations

Chairperson Veenu Gupta observed:

“The contractual allocation of particular development responsibilities to the developer cannot, by itself, absolve the landowner from the statutory obligations arising under the Act in respect of the project.”

The project, situated at B-99-A, Surya Marg, Tilak Nagar, Jaipur, comprised 12 residential units. The proceedings arose from a complaint alleging that K.D. Developers was developing the project and had commenced bookings without obtaining the mandatory registration under the RERA Act. It was also alleged that requisite permissions from the Jaipur Development Authority and other competent authorities had not been obtained.

Rajasthan RERA issued a show-cause notice dated September 12, 2024, under Sections 3 and 59 of the Act concerning the failure to register the project. An interim direction under Section 36 was also issued restraining further booking, sale or purchase in relation to the project.

Pursuant to directions issued on March 12, 2025, a site inspection was conducted. The inspection report dated May 5, 2025 recorded the existence of a basement, ground floor and six additional floors. The project comprised 12 residential units spread over approximately 970 square metres. The structural framework had been completed, while interior and exterior works were still in progress.

Landowner's Defence Rejected

The inspection report recorded the involvement of Siddharth Landmark LLP and identified Brajesh Saxena as a landowner.

Saxena admitted that he had executed a Development Agreement dated February 8, 2023. However, he contended that his role was confined to that of a landowner and that he had not participated in the management, promotion, marketing or day-to-day affairs of the project.

The Authority rejected this defence.

The Development Agreement described Saxena as the First Party/Landowner and Siddharth Landmark LLP, through its partners Nischal Bhandari and Pradeep Moolrajani, as the Second Party/Developer. Although the agreement entrusted the developer with construction and the sale of the flats, it also provided for the constructed flats to be divided between the developer and the landowner.

Significantly, Saxena retained a 58.33% share in the flats to be constructed. On this basis, the Authority found that he continued to possess a substantive proprietary interest in the project.

The Authority held that the contractual arrangement between the parties could not override or dilute statutory obligations imposed by the RERA Act. The fact that construction, development and sale-related responsibilities had been assigned to the developer did not, by itself, absolve the landowner from compliance with the statutory registration requirement.

Violation Was Not a Mere Technical Lapse

Rajasthan RERA further held that the contravention could not be characterised as a “mere technical or inadvertent lapse”.

The project was actively under development and comprised 12 residential units, notwithstanding the statutory requirement that the project be registered before commencement of activities falling within Section 3 of the Act.

The Authority accordingly concluded that continued development of the project without registration constituted a “wilful contravention” of Section 3.

Proceedings Against Another Landowner Dropped

The Authority, however, distinguished the position of Kunal Daga, another person identified as a landowner.

Proceedings against Daga were dropped as the material on record did not establish his participation in the development arrangement, construction or sale of the project. The Authority held that his “mere identification as a landowner” was insufficient to impose liability in the absence of material demonstrating his participation in, or nexus with, the development.

Liability of Siddharth Landmark LLP

The order also noted that the proceedings were initially instituted against K.D. Developers. However, the subsequent site inspection report and the Development Agreement identified Siddharth Landmark LLP as the developer actually undertaking the development of the project.

Since no material was placed on record establishing any continuing role of K.D. Developers in the development or sale of the project, the Authority determined liability on the basis of the material subsequently brought on record.

Penalty and Direction for Registration

Rajasthan RERA ultimately held that Siddharth Landmark LLP, being the developer responsible for construction and development, and Brajesh Saxena, being the landowner having a substantive share in the constructed project, could not avoid the statutory requirement of registration under Section 3 of the RERA Act.

Accordingly, exercising its powers under Section 59, the Authority imposed a penalty of ₹1 lakh each upon Siddharth Landmark LLP and Brajesh Saxena.

They were further directed to apply for registration of the project “99 Avenue” within 45 days and comply with the requisite statutory formalities.

Key Takeaway

The order underscores that private contractual arrangements between a landowner and developer cannot, by themselves, determine or extinguish statutory liability under RERA. While the actual role and nexus of each party must be examined on the basis of the material on record, a landowner having a substantive proprietary or economic interest in a development project may remain subject to statutory obligations despite delegating construction, development and sale responsibilities to a developer.

Maharashtra REAT Imposes Penalty Equivalent to 2% of Project Cost on RA Associates for Altering Project Plan Without Allottees’ Consent

Case Title: RA Residences Co-operative Housing Society Ltd. v. RA Associates & Ors.
Case No.: Appeal No. AT06/00804/2025
Date of Decision: 16 September 2026
Forum: Maharashtra Real Estate Appellate Tribunal (MahaREAT)

The Maharashtra Real Estate Appellate Tribunal (MahaREAT), by its judgment dated 16 September 2026, imposed a penalty equivalent to 2% of the project cost upon RA Associates and its partners, the promoters of the “RA Residences” project in Mumbai, for altering the disclosed project plans and increasing the Floor Space Index (FSI) of the commercial building without obtaining the requisite prior consent of the allottees.

A Bench comprising Chairperson Justice S.S. Shinde and Administrative Member Shrikant M. Deshpande further directed the promoters to execute the conveyance of the residential building within 60 days. The Tribunal held that a promoter cannot indefinitely defer conveyance on the ground that additional FSI or Transferable Development Rights (TDR) may become available in the future.

The Tribunal observed:

“...In fact, once the FSI available in the project property is exhausted, the promoters are obligated to execute the conveyance and are not entitled to any further FSI, if available, due to change in policy within the property or procured from elsewhere.”

Background

The dispute arose in relation to the “RA Residences” project in Mumbai, comprising residential Wings A and B and a separate commercial/IT building. The promoters had initially proposed to complete the project by 30 June 2018, following which the registration of the project was extended by the Maharashtra Real Estate Regulatory Authority (MahaRERA).

Part occupation certificates for the residential wings were obtained on 23 June 2020, 15 December 2020 and 9 December 2021, while the housing society was registered on 18 October 2022.

The society subsequently approached MahaRERA alleging, inter alia, that the promoters had:

• materially altered the sanctioned and disclosed plans;

• utilised additional FSI without obtaining the requisite consent of the allottees;

• altered common and recreational areas;

• failed to execute the conveyance; and

• failed to hand over project documents, amenities and other facilities.

MahaRERA, by its order dated 7 July 2025, partly allowed the complaint and held that the promoters had violated Section 14(2) of the Real Estate (Regulation and Development) Act, 2016, which requires the prior consent of at least two-thirds of the allottees for specified alterations or additions to sanctioned plans.

The society thereafter preferred an appeal before MahaREAT seeking further reliefs.

Alteration of Plans Without Consent

Before the Tribunal, the promoters contended that the residential buildings had been completed in accordance with the sanctioned plans and that occupation certificates had been obtained. They further relied upon the agreements for sale, contending that the contractual arrangements contemplated separate residential and commercial structures and permitted development through additional FSI/TDR.

The Tribunal, however, held that the promoters had violated Section 14 of RERA by altering the disclosed sanctioned plans without obtaining the requisite consent of the allottees.

The Tribunal also found violations of Section 11 of RERA, which prescribes the promoter's statutory obligations, including obligations concerning conveyance.

Consent Under RERA and MOFA Cannot Be Contractually Dispensed With

The Tribunal additionally held that the promoters had violated Section 7 of the Maharashtra Ownership Flats Act (MOFA), which requires the consent of flat purchasers for additions or alterations to the structure disclosed to them.

In particular, the Tribunal noted that construction of the commercial C-Wing under the revised 2021 plan required the consent of two-thirds of the allottees.

Significantly, it rejected the promoters' reliance upon deemed-consent clauses contained in the agreements for sale, observing:

“the deemed consent in the clauses of the agreements for sale is not the consent within the meaning of consent under section 7 of MOFA or section 14 of RERA.”

Thus, contractual provisions cannot be treated as a substitute for the statutory consent contemplated under RERA and MOFA.

Additional FSI/TDR and Entitlement of the Societies

The Tribunal further held that the additional FSI/TDR utilised by the promoters, but not disclosed in the 2017 plan, belonged to the societies representing the residential and commercial buildings of the project.

The Tribunal therefore directed proportionate apportionment of the sale proceeds generated from commercial units constructed by utilising the additional 4,225.57 square metres of FSI.

The finding assumes significance in the context of the promoter's rights over additional development potential after the disclosure of the original project plans and the rights of the allottees/societies in such additional development potential.

Conveyance Cannot Be Deferred Indefinitely

Since Wings A and B had received occupation certificates and possession had been handed over to the respective allottees, the Tribunal directed the promoters to complete the conveyance of the residential building.

It specifically rejected the proposition that conveyance could be postponed merely because additional FSI or TDR might become available in the future. The Tribunal held that once the FSI available in the project property has been exhausted, the promoters are required to execute the conveyance and cannot retain rights over future FSI merely because of a subsequent change in policy or because additional FSI/TDR may be procured from another source.

Accordingly, the promoters were directed to convey the residential building's proportionate interest in the project property, together with the relevant common areas and amenities, within 60 days.

Maintenance, Clubhouse and Corpus Fund

The Tribunal also considered amounts collected by the promoters towards maintenance charges, clubhouse charges and corpus fund.

Since the residential buildings had been completed and possession had been handed over, MahaREAT directed the promoters to furnish audited accounts of the amounts collected under these heads.

The Tribunal observed:

“Since the residential building (wing 'A' and wing 'B') is completed with occupation certificate and the allottees have taken the possession of their respective flats, we deem it appropriate to direct the promoters to provide audited accounts of the amounts collected under agreements towards maintenance charges, clubhouse charges, and corpus fund and refund the amount as per the audited accounts to the appellant with accrued interest on the said amount, if kept in a separate account.”

The promoters were consequently directed to refund the balance amount to the society, along with accrued interest wherever applicable.

Other Directions

MahaREAT further directed the promoters to:

1. hand over the remaining 64 guest parking spaces;

2. execute the conveyance of the residential building's proportionate interest in the project property;

3. hand over the relevant common areas and amenities;

4. furnish audited accounts concerning maintenance, clubhouse and corpus-fund collections; and

5. refund the balance amounts to the society with applicable interest.

The issues relating to incomplete works, repairs, deficiencies in services and rectification of defects were remanded to MahaRERA for fresh adjudication.

Key Takeaway

The decision reiterates that the promoter's contractual rights under an agreement for sale do not override the statutory protections afforded to allottees under RERA and MOFA. Alterations to disclosed plans and structures requiring statutory consent cannot be justified merely by relying upon deemed-consent clauses in agreements for sale.

The ruling also emphasises that future availability of FSI/TDR cannot be used as an indefinite ground to postpone conveyance once the relevant project development has reached the stage where conveyance is required. Further, where additional development potential is utilised in a manner not disclosed in the original project plan, the Tribunal may examine the consequential rights of the societies/allottees in the benefits arising from such additional development.

IBC Prevails Over RERA On Individual Refund Rights In CIRP; Homebuyers Bound By Class Decision On Resolution Plan: NCLT Mumbai

 

IBC Prevails Over RERA in Case of Conflict with Individual Refund Rights; Homebuyers Bound by Collective Class Decision: NCLT Mumbai

Cause Title: Vivek Talwar & Others v. Rajesh Jhunjhunwala, Resolution Professional & Others
Case No.: I.A. (IB) No. 3688 of 2025 in C.P. (IB) No. 389/MB/2022

The National Company Law Tribunal, Mumbai Bench, has held that a resolution plan cannot be required to incorporate an individual homebuyer's right to seek refund under Section 18 of the Real Estate (Regulation and Development) Act, 2016 (“RERA”), where enforcement of such individual right is inconsistent with the collective insolvency resolution process contemplated under the Insolvency and Bankruptcy Code, 2016 (“IBC”).

A Bench comprising K.R. Saji Kumar, Member (Judicial), and Anil Raj Chellan, Member (Technical), dismissed an application filed by four homebuyers seeking reconsideration of the resolution plan of Spenta Enclave Private Limited and, alternatively, seeking directions for provision of an exit and refund mechanism for homebuyers who did not wish to continue with their respective units.

The applicants had booked two flats in the “Altavista” project developed by Spenta Enclave Private Limited and had paid approximately ₹89.23 lakh and ₹86.71 lakh towards the purchase consideration between 2017 and 2021. Although possession was initially represented to be delivered by December 2019 and subsequently by December 2020, the project remained incomplete. Consequently, the applicants sought refund and initiated proceedings before the State Consumer Disputes Redressal Commission in July 2022, prior to commencement of the CIRP.

The CIRP commenced on 24 March 2023. During the CIRP, the applicants submitted their claims as homebuyers, which were admitted by the Resolution Professional. They subsequently informed the Resolution Professional that they were unwilling to pay the balance consideration and did not wish to continue with the project. Their grievance was principally directed against the resolution plan on the ground that it did not provide an exit or refund mechanism for homebuyers seeking withdrawal under Section 18 of RERA.

The applicants relied upon Clause 18 of their respective Agreements for Sale, which contemplated refund with interest in the event of failure to deliver possession within the stipulated period. It was contended that the Successful Resolution Applicant (“SRA”), upon taking over the project, would step into the shoes of the erstwhile promoter and would consequently be bound by the contractual and statutory obligations owed to the applicants under RERA.

The resolution plan, however, specifically provided that “no cancellation of the Units by the Homebuyers will be entertained by the Resolution Applicant.” The applicants contended that such a provision amounted to an impermissible unilateral alteration of their contractual and statutory rights.

The Tribunal rejected the contention. It examined the scope of Section 18 of RERA, which enables an allottee, in specified circumstances, to seek return of the amount paid together with interest where the promoter fails to complete the project or is unable to give possession in accordance with the agreement. However, the Tribunal observed that, at the relevant stage, the SRA could not be treated as having stepped into the shoes of the erstwhile promoter.

The Tribunal noted that the resolution plan had not yet been approved by the Adjudicating Authority and, consequently, the SRA had not assumed control of the project. Its obligations to complete the project would arise in accordance with the resolution plan upon its approval. The SRA therefore could not, at that stage, be treated as having assumed all contractual obligations arising from agreements entered into between the applicants and the Corporate Debtor.

The Tribunal further noted that the CoC had considered the applicants' request for refund and had concluded that cancellation of units and consequent refund would adversely affect the cash flows of the Corporate Debtor. The Tribunal also took note of the fact that homebuyers constituted approximately 22.66% of the voting share in the CoC and had approved the resolution plan through their Authorised Representative, whereas the four applicants collectively represented approximately 0.22% voting share.

In this context, the Tribunal emphasised the collective nature of the insolvency resolution process and observed that the SRA ought to be permitted to take over the Corporate Debtor in accordance with the approved resolution framework, without being subjected to liabilities in a manner inconsistent with the resolution plan. The Tribunal also noted that the SRA was not a party to the proceedings and, therefore, relief affecting its rights and obligations could not appropriately be granted without affording it an opportunity of being heard.

Interplay between RERA and IBC

On the interplay between RERA and the IBC, the Tribunal observed that the two enactments operate in distinct fields. While RERA seeks to protect the interests of individual homebuyers and regulate the real estate sector, the IBC provides a collective statutory mechanism for resolution and revival of financially distressed corporate entities.

The Tribunal held that, where the provisions of the two enactments operate inconsistently, Section 238 of the IBC gives the Code overriding effect. Consequently, an individual remedy available to a homebuyer under RERA cannot be enforced in a manner that defeats or undermines the collective insolvency resolution process under the IBC.

The Tribunal also relied upon the statutory framework governing homebuyers as a class of financial creditors. In particular, it referred to Section 25A(3A) of the IBC, under which the Authorised Representative is required to cast votes in accordance with the decision taken by the requisite majority of the homebuyers comprising the relevant class. The Tribunal accordingly held that an individual homebuyer cannot seek treatment contrary to the collective decision of the class merely because such individual homebuyer may otherwise possess a separate remedy under another enactment.

The Tribunal further observed that it could not direct modification of the commercial terms of a resolution plan or compel the CoC or the SRA to renegotiate the terms of the plan.

The Tribunal underscored that the insolvency resolution process under the IBC proceeds on the basis of collective resolution of claims and balancing of the interests of various stakeholders. Since the applicants' claims had already been admitted within the CIRP, they could not insist upon a separate, individualised remedy outside the insolvency framework where such remedy was inconsistent with the resolution plan and the collective decision-making process under the IBC.

The Tribunal also took note of the fact that substantially similar refund claims had earlier been rejected in applications filed by the same applicants in 2024 and that the said orders had not been challenged before the Appellate Tribunal. The earlier orders had consequently attained finality.

In view of the above, the Tribunal found no sufficient ground to interfere with the resolution plan or to direct its reconsideration and accordingly dismissed the application without costs.

TSRERA :- The Allottee has an obligation to adhere to the payment schedule as agreed in its Agreement of Sale as per Section 19(6) and non procurement of the Home loan amount cannot put the Builder under financial distress.

The Allottee has an obligation to adhere to the payment schedule as agreed in its Agreement of Sale as per Section 19(6) and non procurement of the  Home loan amount cannot put the  Builder under financial distress. 

Sri Umesh Choudhary Vs/ M/s Alpine Infratech 

COMPLAINT NO.519 OF 2023 decided on 12th Day of March, 2024 

BEFORE TELANGANA STATE REAL ESTATE REGULATORY AUTHORITY

Facts :-

1. The Complainant booked a flat in August 2021 in the project of the Respondent Builder.
2. Application Form/Terms and Conditions of Allotment was signed by him.
3. The Agreement of Sale was executed in the month of January 2022.
4. Complainant paid 20% of the cost and the balance 80% amount was to be arranged in form of Home loan.
5. The Project was approved from many nationalized bank but as the Complainant was a Central Government employee so he wanted the Home Loan in the form of House Building Allowance (HBA) from his concerned department. 
6. That vide e-mail dated 15.04.2022, the Complainant sought for several documents ( a list of 19 documents) from the Respondent Builder to avail HBA loan.
7. The complete documents were finally given by the builder on 20.02.2023.
8.  The Builder directed the Complainant to pay the Final due amount by 28.03.2023 else base price will be increased by Rs.200 per sft.
9. The Complainant offered an interim payment of Rs.5,00,000/-  by first week of May 2023 and the full payment by July 2023.
10. In May 2023, the Complainant requested the builder to accept the due amount of Rs.25,00,000/-
11. The Builder refused to accept the amount and stated that they will only accept if the Complainant agreed to make the payment with the revised base rate by Rs. 1000 per sft an increase of  Rs.11,20,000 in total price. 

Complainants Contentions :-

1. The delay in making payment occurred due to non-handing over of documents in time. hence, management is responsible for such delays.
2.  The revised increased rate is not acceptable as the delay in making payment did not occur on default of the Complainant. 
3. Prayed to take needful action against the Respondent Builder as per the applicable rules and regulations and to get the flat at the original agreed rate.

Respondent Builder's Contentions :-

1. The Complainant in spite of availing discount did not pay the agreed amount on time.
2. The Complainant initially agreed orally to take loan from various nationalized banks but later in the month of July 2022, started requesting various documents from the Respondent Company
3. The Complainant made one or the other request for the documents and that too after a lapse of one year and also which were beyond the purview of the Respondent Company and evaded the payments due to the Respondent Company. 
4. The Respondent Company sent several mails requesting the Complainant to visit the office of the Respondent Company to sort the issue. 
5. The Complainant failed to perform his part of contractual obligation and did not make the payment as per schedule, that's why the Company is justified in cancelling the booking 

Observations of the Authority :-

1. In Clause 1.3 of the BBA, the Complainant agreed to make payment as per payment plan set out in Schedule C (Payment Plan).
2. As per the Payment Schedule annexed to the said Agreement of Sale, the Complainant categorically agreed to payment of the schedule therein. which is not disputed by either party 
3. in the annexure to the said Payment Schedule, Point No.4 stipulates that prices are subject to change without prior notice upon non confirmation of sale.  
4.  the Complainant is bound by the same and failure of the Complainant in complying with the payment schedule is derogation of his duty under Section 19(6) of the Act.
5. the delay in procuring the documents cannot be attributed to the Respondent Builder as the said documents may not readily available with him and he may not be in a position to produce documents such as 
1. government pleader's certificate, 
2. estimates, 
3. permission under Conduct Rules for purchase of site and for construction of the house,
4.  Notice under Section 26(1) of the Urban Land (Ceiling & Regulation) Act, 1976, etc
6. Clause 9.3 (ii) of the undated Agreement of Sale executed between the parties clearly stipulates In case of Default by Allottee under the condition listed above continues for a period beyond 2 (two) consecutive months after notice from the Promoter in this regard, the Promoter may cancel the allotment of the [Apartment/Plot] in favor of the Allottee and refund the money paid to him by the allottee by deducting the booking amount and the interest liabilities and this Agreement shall thereupon stand terminated

Order of Authority:-

1. The Complainant is directed to pay the remaining amounts which is pending as on date as per the payment schedule agreed upon by both the parties within 60 (sixty) days, along with interest of 10.65%.
2. In the event the Complainant fails to complete such payment, the Respondent is to initiate measures in accordance with the provisions of the Act and Rules thereunder.

Supreme Court - WB-HIRA is repugnant to the RERA, and is hence unconstitutional

 In the Matter of Forum for People’s Collective Efforts (FPCE) & Anr. V/s The State of West Bengal & Anr.Writ Petition (C) No. 116 of 2019 decided on 04.05.2021 

The Apex court held that 

“83. For the above reasons, we have come to the conclusion that WB-HIRA is repugnant to the RERA, and is hence unconstitutional. We also hold and declare that as a consequence of the declaration by this Court of the invalidity of the provisions of WB-HIRA, there shall be no revival of the provisions of the WB 1993 Act, since it would stand impliedly repealed upon the enactment of the RERA.

Cases pending or ongoing with other tribunals will not be entertained by RERA

 The authority in Gurugram, Haryana in Sh. Sukhbir Singh Grewal Vs. M/s MVL Ltd (Complaint no. 48 of 2018) reiterated that it will not entertain any case which is already pending in another tribunal or court. 

In this particular case, the buyer had filed a case against the builder for delay in giving possession of property beyond the date mentioned in the agreement. The builder submitted that the delay was a result of the interim order passed by SEBI. The builder had moved the Securities Appellate Tribunal (SAT) challenging SEBI’s decision.

 RERA stated that ‘As the matter is already with the SEBI/SAT, accordingly there is no case left for the present before this authority and to continue further proceedings in the matter. Let the issue be decided by the SEBI/SAT. Once the SAT set aside the order of the SEBI then the only allottee may come to us for proceedings under the RERA Act.’ 

Designated Tribunal under Section 43 of RERA ACT will function till such time a regular Tribunal is established

  In a judgment dated 17.09.2018 passed in Writ-C No. 31085 of 2018; Gardenia Aims Developers Pvt. Ltd. v. State of U.P., wherein The Honorable Allahabad High Court  has held that

 Section 43 of the Act prescribes a time of one year for establishment of the Tribunal but the proviso to the said Section says that till such time regular Tribunal is established the State Government will have power to designate any other existing Tribunal to hear the appeals. 

The Court held that in the said case the State Government by an order dated 24.01.2018 had designated the U.P. State Transport Appellate Tribunal as the Tribunal to hear the appeals and the proviso does not prescribe any time limit for functioning of the designated Tribunal, which says that the said designated Tribunal will function till such time a regular Tribunal is established and as the regular Tribunal had not been established till 17.09.2018, the designated Tribunal had jurisdiction. 

Complaints can be instituted against promoters in relation to both projects which have been registered with the authority or which are not registered with the authority

Simmi Sikka V/s M/S EMAAR MGF LAND LTD Complaint number RERA-GRG-7-2018

Haryana Real Estate Regulatory Authority Gurugram 

The judgement contains the following conclusions

• The RERA Act, nowhere mentions anywhere that it is applicable only for the registered projects.

• The RERA Act, provides certain categories of projects which are not required to be registered but these are within the ambit of the Act. These projects mentioned in section 3(2) have been taken out of the registration requirement but not out of the purview of other provisions of the Act.

• The provisions regarding registration and obligation during registration are applicable only for the registered projects.

• The obligations of the promoter’s post expiry of the validity of the registration provided in the Act are applicable to even the real estate projects exempted from the registration.

• The projects which were completed and handed over during the last 5 years are 

covered for the purpose of workmanship and structural defect liability.  A complaint may be filed by the allottee in such matter in case the possession of the real estate was within 5 years prior to the date of the complaint.

• All real estate projects are covered for land title defect liability

• A complaint pertaining to violation of the provisions of RERA Act, Haryana RERA Rules, and regulations thereunder, may be filed by any aggrieved person in respect of any real estate project as per the definition given in section 2(zn) of RERA Act.

Based on the above judgment, it may be concluded that registration of project and filing RERA complaint, both are separate activities. A RERA case can be filed even against the non-registered projects.

In the Absence of Builder Buyer agreement, the Allotment letter if having all the Important details will serve as valid Contract and the complainant can ask for the refund under section 18 also.

 In the Matter of Nikhil Chopra V/s JVPD Properties Pvt. Ltd. Complaint number CC005000000001348 The Maha RERA observed That 

• “The complainant has filed this complaint under Section 18 to claim refund of his amount from the respondents with interest. 

• The respondents issued a letter dated 24.07.2017 expressing their inability to complete the project. 

• The respondents in their reply contended that the complainant is an investor and therefore, the Authority has no jurisdiction to entertain this complaint. 

• The respondent further contended that for the application under Section 18 of RERA, there must be agreement for sale and the complainant does not have it. 

• The Authority observed that lt is a fundamental principle of law of contract that once a proposal is accepted; it becomes a contract, provided  it is coupled with lawful consideration and lawful object and it is not specifically barred by any statute. There can be oral agreement for sale or it can be also in written form. in this case the complainant has relied upon an allotment letter, admittedly issued by the respondents on 11.07.2014.

• The Authority observed that It is the contention of the respondents that there is no concluded contract. Hence, it is necessary to look at the allotment letter. On its perusal it becomes clear that the complainant agreed to purchase the flats and the respondents agreed to sell them for the consideration mentioned in the letter.

•  The respondents agreed to deliver the possession of the flats within 42 months from receipt of final commencement certificate from plinth level. All these terms and conditions have been accepted and signed by both the parties. Therefore, there remains no doubt that it is a concluded contract which has taken place on 11.07.2014.” 

• The Authority therefore ordered 

• “The respondents shall refund the amount mentioned in Para-l0 of this order.

• The respondents shall pay the complainant Rs. 20,000/- towards the cost of the complaint.. 

• The respondents shall pay simple interest at the rate of 10.05% from the dates of receipts of the amount till they are refunded.. 

• The charge of aforesaid amount shall be on the respondents’ property under project bearing C.T.S. No. 634/5 and 64D “S” ward of village Tirandaz, Taluka Kurla, Mumbai, till the complainant’s claim is satisfied.”

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Letter of allotment would tantamount to an agreement for sale

 In the Matter of Manjeet Singh dhaliwal versus Jvpd properties private Limited,the Maharashtra appellate Tribunal held that even a letter of allotment would tantamount to an agreement for sale under Section 2(c) of the ACT if the letter contains the description of the property, payment schedule and costs requisition of permissions, obligation to complete the project and getting Clarity to title. since nothing further was left to be agreed upon, the contract was concluded.

No provisions in RERA and rules there under to forfeit the earnest money.

  In the Matter of Sumit Mukherjee Versus M/s. Rajsanket Realty Limited Complaint No. CC006000000057591 THE MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY, MUMBAI observed that there is no provisions in RERA and rules there under to forfeit the earnest money.

Developer can not charge interest on delay in payment of installments in case of Fit out Possession

In a recent order titled Sukhbir Singh V/s Tdi Infrastructure (Complaint no. 1801 of  2019) , the Haryana Real Estate Regulatory Authority, Panchkula has held that Fit out Possession can not be considered a legally valid offer because in this case, the occupation certificate has not been obtained, in such circumstances, when the developer himself has failed to deliver a valid possession to Alllotee, it can not be allowed to charge interest on delayed payment of installments by the allocates. 

The Complete order can be accessed at this link https://haryanarera.gov.in/assistancecontrol/viewOrderPdf/NTk2MTU=