1. This complaint is filed under section 31 of the RERA Act against the project "Jains Aashraya" developed by "Jain Housing & Construction Ltd.," situated in Basavanapura Village, Begur Hobli, Bannerghatta Main Road, Bengaluru South Taluk, Bengaluru for the relief of refund with interest.

2. This project has been registered in RERA bearing registration No. PRM/KA/RERA/1251/310/PR/180507/001672.

3. This matter has been remanded by the Hon'ble High Court of Karnataka for fresh consideration vide order dated 31/05/2023 in W.P. No. 3925/2023 C/w 3926/2023, 3927/2023, 3930/2023 (GM-RES).

Brief facts of the complaint are as under:-

4. The complainant has booked a flat bearing No. 6H in the project "Jains Aashraya" of the respondent by entering into an agreement of sale dated 13/11/2018. The total sale consideration of the said flat is Rs. 69,02,475/- (Rupees Sixty Nine Lakh Two Thousand Four Hundred and Seventy Five Only) and paid Rs. 58,06,000/- (Rupees Fifty Eight Lakh Six Thousand Only) on various dates. As per the agreement of sale the respondent was supposed to complete the project, execute the sale deed, handover the possession along with ready and complete common areas with all specifications and amenities of said flat to the complainant on 20/01/2020. But, the respondent failed to handover possession of the said flat till date. The complainant has approached the respondent on multiple occasions seeking clarification on the date of completion of the unit but to no avail. Therefore, the complainant prays for cancellation of the unit along with refund with interest.

5. Further, the complainant submitted that, during the course of hearing the apartment unit came to be completed but the amenities and specifications related to the project still stands incomplete. Subsequently, the complainant sent emails to the respondent in the month of July 2022, the respondent has sent a reply on 29th of July 2022 and 10th of October 2022. In response to the notice, on 10th October 2022 respondent has provided demand draft bearing No. 808157, dated 10/10/2022 for the sum of Rs. 57,56,000/- (Rupees Fifty Seven Lakh Fifty Six Thousand Only) drawn on KVB Bank, in favour of the complainant. The complainant has encashed the said sums in order to close the home loan availed before the State Bank of India and has explicitly acknowledged with the respondent that the aforementioned DD has been accepted as part payment of the total amount payable only on 17/10/2022 and 30/10/2022 before this Authority.

6. Further it is submitted that the payments made by the respondent is only considered as part payments, as the principal amount paid by the complainant was Rs. 58,06,000/- (Rupees Fifty Eight Lakh Six Thousand Only) and the DD issued by the respondent is for Rs. 57,56,000/- (Rupees Fifty Seven Lakh Fifty Six Thousand Only). Therefore the respondent is liable to pay Rs. 50,000/- (Rupees Fifty Thousand Only) balance amount along with interest and also interest on total amount paid by the complainant i.e., Rs. 58,06,000/- (Rupees Fifty Eight Lakh Six Thousand Only). Further, the interest payable on the principal amount till the date of 10/10/2022, amounts to Rs. 23,25,313/- (Rupees Twenty Three Lakh Twenty five Thousand Three Hundred and Thirteen Only). Hence, this complaint.

7. After registration of the complaint, in pursuance of the notice, the respondent has appeared before this Authority through his authorized representative and filed statement of objections as under:-

8. It has denied entire allegations made against it by the complainant as false. It contends that, the construction works have been completed as per the RER Act and whoever has paid the total flat cost, the registration of sale deeds in respect of individual apartments are completed. About the cancellation of booking and refund with interest, no response doesn't arise as there is a clause in para 7.5 and clause in para 9.3 of the agreement of sale which clearly put forth the terms of cancellation. The respondent has started the project and has got the plan approved on 29/10/2015 and has completed the construction much before 20/01/2020 and have obtained the occupancy certificate from the BBMP.

9. Further, it is submitted that the complainant delayed in payment of instalments stipulated in the agreement of sale and other few agreement holders also delay in making milestone instalment payments. Hence, there was some delay in obtaining occupancy certificate of the building on account of valid/bonafide reasons beyond the control of the respondent. Even now the complainant has not paid the balance due. The respondent has faced many issues like, cost of labour, building material increased more than 10%, the problem of securing the workmen/labour was also there, on account of COVID-19, force majeure restrictions and conditions by the Government, marketing of the apartments was also affected, delay in marketing and sale of the apartment has also added to the delay and the financing of the project. There are several other reasons also for the delay in obtaining occupancy certificate. The complainant has not come forward to pay the balance due amount and to get the sale deed but opted for the cancellation and refund of the flat. Hence, the respondent has cancelled the agreement and has refunded the amount of Rs. 57,56,000/- (Rupees Fifty Seven Fifty Six Thousand Only) to the complainant and the complainant has received the same. There is no due from the respondent to the complainant. Hence, it is evident that he could no longer claim compensation for delay on handover of the apartment unit. The apartment was also ready to occupy by the purchaser. Hence, prayed to dismiss the complaint.

10. In support of his claim, the complainant has produced in all 6 documents, such as copy of sale agreement dated 13/11/2018, proof of transactions made in favour of the respondent, response notice issued by the respondent, D'D issued by the respondent in favour of the complainant and response furnished by the complainant in favour of the RERA and the respondent.

11. Respondent has not produced any documents on its behalf.

12. This matter was heard on 10/06/2022, 25/07/2022, 05/08/2022, 19/08/2022, 06/09/2022, 10/10/2022, 14/11/2022, 22/06/2023, 3/06/2023, 10/07/2023, 24/07/2023, 11/08/2023, 21/08/2023 and finally on 24/08/2023.

13. Heard argument of both the parties.

14. On the above averments, the following points would arise for my consideration:-

1. Whether the complainant is entitled for the relief claimed

2. What order

15. My findings on the above points is as under:-

1. In the Affirmative.

2. As per the final order for the following

REASON

16. My findings on point No. 1:- The complainant has approached this forum for the relief of refund with interest. The grounds urged that the complainant has booked a flat bearing No. 6H, in the project 'Jains Aashraya' by entering into an agreement of sale dated 13/11/2018. The total sale consideration of the said flat is Rs. 69,02,475/- (Rupees Sixty Nine Lakh Two Thousand Four Hundred and Seventy Five Only) and paid Rs. 58,06,000/- (Rupees Fifty Eight Lakh Six Thousand Only) on various dates. As per the agreement of sale the respondent was supposed to complete the project, execute the sale deed, handover the possession along with ready and complete common areas with all specifications and amenities of said flat to the complainant on 20/01/2020. But, the respondent failed to handover possession of the said flat till date.

17. On 10th October 2022, the respondent has provided demand draft bearing No. 808157, dated 10/10/2022 for the sum of Rs. 57,56,000/- (Rupees Fifty Seven Lakh Fifty Six Thousand Only) drawn on KVB Bank, in favour of the complainant. The complainant has encashed the said sums in order to close the home loan availed before the State Bank of India and has explicitly acknowledged with the respondent that the aforementioned DD has been accepted as part payment of the total amount payable only on 17/10/2022 and 30/10/2022 before this Authority. Therefore the respondent is liable to pay Rs. 50,000/- (Rupees Fifty Thousand Only) balance amount along with interest payable on it till date. Further, the interest payable on the principal amount till the date of 10/10/2022, amounts to Rs. 23,25,313/- (Rupees Twenty Three Lakh Twenty five Thousand Three Hundred and Thirteen Only).

18. The same is resisted by the respondent on the ground that, the delay in obtaining occupancy certificate of the building on account of valid/bonafide reasons beyond the control of the respondent. Even now the complainant has not paid the balance due. The respondent has faced many issues like, cost of labour, building material increased more than 10%, the problem of securing the workmen/labour was also there, on account of COVID-19, force majeure restrictions and conditions by the Government, marketing of the apartments was also affected, delay in marketing and sale of the apartment has also added to the delay and the financing of the project. There are several other reasons also for the delay in obtaining occupancy certificate. The complainant has not come forward to pay the balance due amount and to get the sale deed but opted for the cancellation and refund of the flat. Hence, the respondent has cancelled the agreement and has refunded the amount of Rs. 57,56,000/- (Rupees Fifty Seven Fifty Six Thousand Only) to the complainant and the complainant has received the same. There is no due from the respondent to the complainant.

19. It is apparent that, in spite of entering into a sale agreement to handover the possession of the flat, the respondent has failed to handover the said flat as agreed and has delayed the project. Hence, the builder has failed to abide by the terms of the sale agreement dated 13/11/2018.

20. At this juncture my our attention is drawn towards the judgement reported in Civil Appeal No. 3581-3590 of 2020 at para No. 23 between M/s. Imperia Structures Ltd. V/s. Anil Patni and another by the Hon'ble Supreme court it is held that,

"In terms of Section 18 of the RERA Act, if a promoter fails to complete or is unable to give possession of an apartment duly completed by the date specified in the agreement, the Promoter would be liable, on demand, to return the amount received by him in respect of that apartment if the allottee wishes to withdraw from the Project. Such right of an allottee is specifically made "without prejudice to any other remedy available to him". The right so given to the allottee is unqualified and if availed, the money deposited by the allottee has to be refunded with interest at such rate as may be prescribed. The proviso to Section 18(1) contemplates a situation where the allottee does not intend to withdraw from the Project In that case he is entitled to and must be paid interest for every month of delay till the handing over of the possession. It is upto the allottee to proceed either under Section 18(1) or under proviso to Section18(1). The case of Himanshu Giri came under the latter category. The RERA Act thus definitely provides a remedy to an allottee who wishes to withdraw from the Project or claim return on his investment."

21. Further, in the decision of the Hon'ble Supreme Court of India in Civil Appellate Jurisdiction civil appeal Nos. 6745 - 6749 of 2021 arising out of SLP (civil) Nos. 3711-3715 of 2021 between M/s. Newtech Promoters and Developers Private Limited V/s. State of U.P. & others, it is held as under:

"Section 18(1) of the Act spells out the consequences if the promoter fails to complete or is unable to give possession of an apartment, plot or building either in terms of the agreement for sale or to complete the project by the date specified therein or on account of discontinuance of his business as a developer either on account of suspension or revocation of the registration under the Act or for any other reason, the allottee/home buyer holds an unqualified right to seek refund of the amount with interest at such rate as may be prescribed in this behalf."

22. Therefore, as per section 18(1) of the Act, the promoter is liable to return the amount received along with interest and compensation only as the promoter fails to complete or provide possession of an site etc., in accordance with sale agreement.

23. From the averments of the complaint and the copy of agreement between the parties, the complainant has already paid substantial sale consideration. Having accepted the said amount and failure to keep up promise to handover possession of flat certainly entitles the complainant herein for refund with interest.

24. Despite of several opportunities were given, the respondent has not filed his memo of calculation. A thorough verification of documentary evidence submitted by the complainant reveals that his claim is genuine. Having regard to all these aspects, this Authority concludes that the complainant is entitled for refund with interest as submitted vide her memo of calculation dated 28/06/2023.

25. Therefore, it is incumbent upon the respondent to refund the amount with interest which is determined as under:-

26. Accordingly, the point raised above is answered in the Affirmative.

27. My findings on point No. 2:- In view of the above discussion, this complaint deserves to be allowed. Hence, we proceed to pass the following order.

ORDER

28. In exercise of the powers conferred under Section 31 of the Real Estate (Regulation and Development) Act, 2016, the complaint bearing No. CMP/210801/0008194 is hereby allowed

1. The respondent is directed to pay the amount of Rs. 23,78,888/- (Rupees Twenty Three Lakh Seventy Eighty Thousand Eight Hundred and Eighty Eight Only) towards refund of balance amount of Rs. 50,000/- (Rupees Fifty Thousand Only) and interest on the principal amount paid by the complainant i.e., Rs. 58,06,000/- (Rupees Fifty Eight Lakh six Thousand Only) within 60 days from the date of this order, calculated at SBI MCLR+2% from 20/09/2018 till 28/06/2023.

2. The interest due from 29/06/2023 up to the date of final payment shall be calculated likewise and paid to the complainant.

3. The complainant is at liberty to enforce the said order in accordance with law if the respondent fails to comply with the above order.

29. No order as to costs.