1. Heard Mr. Uchit Bhandari, Advocate, for the complainants and Mr. Divij Kumar, Advocate, for the opposite party-1.

2. Anil Kumar Appan, Dilip Raj and Mrs. Lalita Rani have filed above complaint, for directing the opposite parties to (i) refund Rs.5953370/- with interest @15% per annum from the date of respective deposit till the date of refund; (ii) pay Rs.500000/-, as costs of litigation; and (iii) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3. The complainants stated that M/s. A.R. Landcraft LLP (opposite party-1) was a limited liability partnership firm and the promoter of the project. M/s. Godrej Properties Limited (opposite party-1) was a company, registered under the Companies Act, 1956 and the owner of the project land. The opposite parties were engaged in the business of development and construction of group housing project and launched a group housing project in the name of “Godrej Golf Links Court” at Plot No.REP-1, Sector-27, Greater Noida in the year, 2016. The employee of the opposite parties approached complainant-2 on phone and informed about the project and called him at their temporary office at Sector-16, Noida, for examining detail features of the project. On discussion, they persuaded the complainants for booking a villa. Believing upon the representations of the opposite parties, the complainants booked a villa in October, 2016 and deposited booking amount of Rs.500000/- through cheque dated 28.10.2016. Opposite party-1 allotted Villa No.22. Which was changed as Villa No.32, with mutual consent and for that purpose the opposite party obtained fresh booking application on 14.02.2017. Gross Amount Payable (GAP) for the villa was Rs.28086850/- and 10% of the GAP was payable within 45 days of booking. The complainants paid Rs.2232052/- on 05.04.2017, Rs.216547/- on 05.04.2017, TDS of Rs.28087/- on 05.05.2017, Rs.2704082/- on 01.07.2017, Rs.244634/- on 01.07.2017 and TDS of Rs.27970/- on 04.08.2017 (total Rs.5953372/-). The opposite parties issued Allotment Letter dated 17.07.2017, in which GAP was mentioned as Rs.28086850/- + taxes. The opposite parties issued another Allotment Letter dated 17.07.2017 (sent on 25.07.2017), in which Rs.4130330/- has been increased for GAP. Clause-5 of the allotment letter mentioned that allotment is further subject to paying the requisite stamp duty and registration charges and registering the agreement for sale within 15 days, failing which allotment was liable to be cancelled. The complainants inquired about the agreement, stamp duty payable on it and registration charges and other expenses. Opposite party-1, through email dated 24.07.2017, informed that their office was processing all these things. Opposite party-1, through letter dated 04.01.2018, demanded other instalment of 20% of GAP. The complainants informed that they had to take home loan from Bank of India, for which, agreement for sale would be necessary. Opposite party-1, through email dated 05.01.2018, informed that they were processing the agreement for sale which would be received within short period and to ask the banker to remain in their touch. They again, through email dated 05.01.2018, demanded next instalment of 20% GAP i.e. Rs.6308656.45. The complainants wrote an email dated 05.01.2018, protesting the demand without execution of the agreement for sale. Opposite party-1, through emails dated 06.01.2018 and 08.01.2018, informed that they had started dispatching the agreement. The complainants, through email dated 08.01.2018, requested to refund their amount as Rs.4130330/-, as GAP was enhanced, vide letter (dispatched on 25.07.2017) and Opposite party-1 was insisting to deposit second instalment without execution of the agreement. Opposite party-1, vide email dated 08.01.2018, informed that BBA had been dispatched on 08.01.2018. Opposite party-1 sent two sets of GGL Agreement and Agreement For Sub-lease, received on 11.01.2018 but these deeds were unsigned and stamp papers attached with it, were blank. The complainants, vide email dated 12.01.2018, requested opposite party-1 to refund their amount. The opposite parties again insisted to deposit next instalment on telephone with warning to cancel the allotment and forfeit money of the complainants. The complainants, through emails dated 09.01.2018 and 15.01.2018, made various queries and requested for meeting, which were not replied. The opposite party through email dated 05.02.2018, again warned to forfeit the money, which was protested by the complainants, through emails dated 06.02.2018 and 28.02.2018. The opposite parties, in email dated 28.02.2018, informed that the government had not formulated any mechanism whereby the BBA can be executed and registered and due to said reason, the project cannot be put to risk. The complainants gave a notice dated 02.04.2018, for refund of their money. Then this complaint was filed on 26.04.2018.

4. In spite of service of notice opposite party-2 did not file its written reply. Opposite party-1 has filed its written reply on 06.07.2018, in which, it has been stated that opposite party-2 was partner of opposite party-1 and has been wrongly impleaded independently in this complaint. The complaint does not fall within pecuniary jurisdiction of this Commission. In Booking Application, the complainants had replied the query relating to finance from bank/financial institution, in negative. Now in the complaint, they had taken defence that due to no-execution of the agreement, they could not obtain loan for payment of instalment. Under Clause-10 of Booking Application, 20% of Gross Amount Payable was mentioned as “earnest money”. In the legal notice dated 02.04.2018, the complainants admitted that they had deposited “earnest money” of 20% GAP. As the complainants want to wriggle out from the contract, their earnest money is liable to be forfeited under clause-14 of the Booking Application. The complainants submitted Booking Application twice i.e. firstly on 23.10.2016 and secondly on 14.02.2017 as such they cannot be permitted to raise any objection against the terms and conditions contained in booking form. Opposite party-1, through email dated 05.01.2018, assured the complainants to assist them in obtaining the loan from Bank of India. However, the complainants or Bank of India did not make any query from the opposite party for granting loan. HDFC Bank, State Bank of India, Canara Bank, ICICI Bank, Bank of Baroda, Housing Finance Ltd., Punjab National Bank, Axis Bank were in touch of the opposite party and they were advancing home loan to the buyers of this project. Section 13(2) of the Real Estate Regulation and Development Act, 2016 requires an agreement for sale between the builder and the buyer to be in such form as may be prescribed by RERA. UPRERA was constituted vide notification dated 01.05.2017 but till today format of the agreement for sale has not been notified, in spite of numerous letters written by opposite party-1 nor UPREARA permitted to follow general law for execution of the agreement. Opposite party-1 sent a draft of RERA compliant agreement to UPRERA through letter dated 02.11.2017 but did not receive any reply. Sub-Registrar informed to the official of opposite party-1 on 29.08.2017 that notification in this regard would be issued soon. A draft agreement was sent to the complainants on 08.01.2008 with detail instructions but the complainants did not sign it and returned it. The project was registered with UPRERA on 26.07.2007 and had to completed till 23.03.2021. As such, the demand of instalment could not be postponed and the complainants were liable to deposit the instalment as demanded on 04.01.2018. As UPRERA has been notified, the complaint, if any, can be filed before it, as RERA is a special law on the subject and the complaint before this Commission is not maintainable.

5. The complainants filed Rejoinder Reply and Affidavit of Evidence of Dalip Raj Appan and documentary evidence. The opposite party filed Affidavit of Evidence of Pratik Batta and documentary evidence. Both the parties have filed their written synopsis.

6. We have considered the arguments of the parties and examined the record. Section-13 (1) of the Real Estate Regulation and Development Act, 2016 is quoted below:-

“Section-13(1).- A promoter shall not accept a sum of more than ten per cent of the cost of apartment, plot or building as the case may be, as an advance payment or an application fee, from a person without first entering into a written agreement for sale with such person and register the said agreement for sale under any law for the time being enforce.”

7. Opposite party-1 realized 20% of cost of the villa till 04.08.2017, in violation of Section 13(1) of the RERA. Opposite party-1, through email dated 04.01.2018, demanded next instalment of 20% GAP. Opposite party-1 took plea that as there was no prescribed format of the agreement in terms of Section 13(2) of the Real Estate Regulation and Development Act, 2016 at that time, which was notified by Government of U.P./UPRERA only on 17.10.2018, as such it was not possible for opposite party-1 to execute the agreement. A draft agreement was sent to the complainants on 08.01.2008 but the complainants did not sign it and returned it. At the stage of demand dated 04.01.2018, the parties were governed by Terms and Conditions of Application Form. The complainants were bound to deposit the demanded amount, failing which; their earnest money was liable to be forfeited under clause-14 of Booking Application.

8. An agreement for sale of immovable property is compulsorily registrable document under Section 54 of Transfer of Property Act, 1882, in U.P. The complainants have stated that opposite party-1 sent two sets of GGL Agreement and Agreement for Sub-lease, received on 11.01.2018 but these deeds were unsigned and stamp papers attached with it, were blank. Opposite party-1, in email dated 28.02.2018, admitted that the government had not formulated any mechanism whereby the BBA can be executed and registered and due to said reason, the project cannot be put to risk. From email dated 28.02.2018, it is proved that opposite party-1 was merely adopting tactic to extract money of second instalment, in violation of Section 13(1) of RERA. Terms and Conditions of Booking Application are in violation of Section 13(1) of RERA as such it were void under Section 24 of the Contract Act, 1872. Opposite party-1 is not entitled to forfeit earnest money. The complainants exercised their right for refund of money through email dated 05.01.2018 as opposite party-1 was not in position to follow the legal provision and execute agreement.

ORDER

9. In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainants with interest @9% per annum from the date of respective deposit till the date of refund, within a period of two months from this judgment.