HARSHIT
Admission of Counter Claim in RERA
HARSHIT BATRA 6 Aug 2022

Admission of Counter Claim in RERA

Counter Claim

Recently, on 6th June 2022, the Panchkula Bench of Haryana Real Estate Regulatory Authority passed a judgment in case titled as "Ansal Infrastructure and Properties Vs. Raj Mahendra Singh" RERA-PKL-404-2020 which came as a big relief to the homebuyers who fall prey to the illegal and arbitrary demands of the Builders (Promoters).

 

Facts of the Case

This case was filed by Ansal Properties and Infrastructure (Promoter/Complainant) against the Allottee (Respondent/Allottee) vide complaint no. 404 of 2020. The Allottee booked its Unit in the “Green Escape” project of the Promoter in 2011. The Promoter promised the Respondent that the Unit shall be delivered to him by March 2015 but eventually offered the possession on 7th October 2016 after a delay of around 1.5 years.

The total sale consideration of the Unit was INR 46,02,375/- as per the terms of the agreement for sale and the Respondent made the payment of INR 48,19,755/- towards the total sale consideration thereby clearing all the demands raised but the Promoter, while making the offer of possession raised an illegal demand of INR 1,93,015/- giving no proper justification. On getting no response from the Allottee’s side, the Promoter further raised another demand letter of INR 1,91,268/- claiming it to be the pending amount towards total sale consideration without giving any detailed clarification or justification.

 

An important fact to be noted here is that the basic sale price (“BSP”) of the Unit kept on changing in all these demand letters providing no information or taking consent about the same. Initially, the Promoter promised to sell the unit to the Allottee for Rs. 35,78,500/- Thereafter, he further increased the BSP to an amount of Rs. 35,81,900/- and then again from Rs. 35,81,900/- to Rs. 36,86,715.24/- i.e., he unilaterally increased the BSP from INR 35,78,500/- to 36,86,715/- (with a difference amounting to INR  1,08,215.24/-) which was contested by the Allottee in the reply to the complaint filed by the builder.

 

Issues:

The question before the Authority was to decide whether the demand raised by the Promoter of INR 1,91,268/- is justified or not and whether there is any delay in delivery of possession and if so, to provide compensation to the Allottee for such delay.

Determination

The Panchkula Bench of the Haryana Real Estate Regulatory Authority while deciding the issue, observed and determined that the total sale consideration as per the agreement for sale was INR 46,02,375/- and the demand raised of INR 1,91,268/- was nowhere mentioned in the agreement for sale nor any further justification of this demand was provided by the Promoter. Hence, this demand raised was considered to be illegal and unjustified and had no legal binding on the Allottee. The Order of this Hon. Authority makes it clear that the Allottee is only bound to pay the demands as per the terms and provisions of the agreement for sale and anything demanded arbitrarily from the Promoter should be opposed and denied by the Allottee as there is no legal binding on the Allottee to fulfil any such illegal demands of the Promoter.

Here, the Hon. Authority also provides a remedy to the Allottee by directing the Promoter to pay the delay interest for the delay of 1.5 years occurred in the delivery of possession of the Unit to the Allottee.  A peculiar aspect to this pronouncement is that though in this case, the due date of possession was a Pre-RERA date, and the offer of possession was also made prior to the enforcement of the RERA Act, regardless of the same, the Promoter was directed to pay the interest for delay in delivery of possession to the Allottee.

Another rather pertinent aspect to take from this case is that the Hon. Authority, in this case, has accepted the counter-claim made by the Respondent (Allottee) against the Complainant (Promoter) and provided the relief accordingly to the Respondent based on his counter-claim. This aspect of the said judgment needs to be particularly celebrated as paving way for the acceptability of counter-claims in RERA.

 

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