G.R. Reddy, Member

1. This complaint is filed under section 31 of the RERA Act against the project "Mantri Webcity 2B" developed by Mantri Developers Pvt. Ltd., for the relief of refund with interest.

2. This project has been registered with RERA vide registration No. PRM/KA/RERA/1251/310/PR/171015/000620.

3. This project is situated at, K.R. Puram Hobli, Bangalore South Taluk, Bengaluru.

Brief facts of the complaint are as under:-

4. The complainants had booked an apartment bearing No. K-805 in the Tower K of the project of the respondent namely Mantri Webcity 2B and entered into an agreement of sale on 26/05/2014 for sale consideration of Rs. 72,83,288/-(Rupees Seventy Two Lakhs Eighty Three Thousand Two Hundred and Eighty only). At the time of entering into an agreement of sale, the complainant had paid the sum of Rs. 22,91,864/-(Twenty Two Lakhs Ninety One Thousand Five Hundred and Sixty Eight only) on the various dates to the respondent. The said apartment was booked under assured return and buy back pre-emi scheme wherein the complainants had to pay 20% of the sale consideration and 80% of the sale consideration was to be paid by bank loan availed only from PNBHFL from which was financial partner of the project. As per said scheme the builder had to reimburse pre-emi instalment till completion of the project and handing over of the apartment. In case of cancellation, complainant was to be paid twice their 20% contribution as 2X. Accordingly, the complainant had contributed his 20%. But the respondent was not punctual in paying pre-emi. So far, the respondent had totally paid a sum of Rs. 33,00,185/-(Rupees Thirty Three Lakhs One Hundred and Eighty Five only) towards pre-emi between June 2014 to August 2020. The complainant had paid Rs. 36,76,751/-(Rupees Thirty Six Lakhs Seventy Six Thousand and Seven Hundred and Fifty One) towards pre emi instalment which has not been reimbursed by the respondent as on September 2020.

5. Further, the respondent was supposed to complete and hand over the said apartment to the complainant by March 2017 as agreed. But, the respondent has failed to complete the project on time. The last commitment made in 2018 by the respondent to complete the project is September 2021 and as of August 2020 Tower-K still under construction. Hence this complaint.

6. After registration of the complaint, in pursuance of the notice, the respondent has appeared before the Authority through its counsel and filed statement of objections as under.

7. The respondent has denied the entire allegation made against them by the complainant as false. According to the respondent, as per agreement of sale the total land cost is Rs. 33,15,000/-(Rupees Thirty Three Lakhs Fifteen Thousand only) to be paid by the complainant to the respondent and cost of construction is Rs. 27,31,000/-(Rupees Twenty Seven Lakhs Thirty One Thousand). As such the total sale consideration of the said flat is Rs. 60,46,000/-(Rupees Sixty Lakhs Forty Six Thousand only) excluding other charges such as right to use car park, club membership fee, maintenance deposits, statutory deposits, generator charges, BESCOM & BWSSB charges @ actuals, tax/ex, stamp duty, registration fee etc.,. The complainant had paid a sum of Rs. 71,50,612/-(Rupees Seventy One Lakhs Fifty Thousand Six Hundred and Twelve only) including other charges. Now, when certain difficulties have crept in for the respondent due to unforeseen sociologic circumstances, the complainant cannot step away from the terms of agreements. The agreed date for completion and handover the possession was 31-03-2017 as per construction agreement subject to receiving the Occupancy Certificate.

8. Further, due to certain force majeure conditions such as variations on account of delay on the part of the authorities, labour strikes, non-availability of steel, sand, cement and such other vital building materials, rules, notifications of the Government and other public or competent authority or any dispute or matter relating to the property pending final determination by the court, or such reasons that is beyond the control of the respondent, he could not complete the project on time. For this he shall not be held responsible. There was no willful delay or default on the part of the respondent in completing the project. Hence, prayed to dismiss the complaint.

9. In support of his claim, the complainant has produced documents such as copies of allotment letter, email conversation with the respondent, payment receipts, and copies of NEFT & RTGS transaction and memo of calculation as on 04/03/2023.

10. On the other hand, the respondent has furnished the documents such as statement of objection, construction and sale agreement, payment receipts and statement of account.

11. Both parties have submitted their written arguments.

12. This matter is heard on 21-04-2022, 10-05-2022, 17-05-2022, 01-06-2022, 28-06-2022, 14-07-2022, 16-12-2022, 28-12-2022 and 12-01-2022.

13. 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

14. My answer to the above points are as under:-

1. In the Affirmative.

2. As per final order for the following.

REASONS

15. My answer to Point No. 1:- From the materials available on record, it is apparent that in spite of entering into an agreement of sale and construction agreement having received a substantial sale consideration from the complainants, the respondent has neither completed the project, handed over the possession of the apartment nor refunded the amount with interest till date as agreed. The respondent has also failed to pay pre-emis to the PNBHFL bank as agreed. There seems to be no possibility of completing the project or handing over the possession of the apartment in the near future.

16. At this juncture, my attention is drawn towards the decision of Hon'ble Supreme Court in appeal No. 6750-57/2021, M/S. Newtech Promoters vs. The State Of Uttar Pradesh 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

17. In the judgment reported in Civil Appeal No. 3581-3590 of 2020 at para No. 23 between M/s. Imperia Structures Ltd., Vs. 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 section 18(1). The case of Himanshu Giri came under the letter 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."

18. As per section 18(1) of RERA Act, in case the allottee wishes to withdraw from the project the promoter is liable without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot, building as the case may be with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act.

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

20. From the averments of the complaint and the copies of the agreement between the parties, it is obvious that the complainant has paid substantial sale consideration to the respondent towards the purchase of said apartment. Having accepted the said amount and failure to keep up promise to handover possession of the apartment even after lapse of 05 years and not paying pre-emi to the bank as agreed, certainly entitles the complainant for refund of entire amount with interest.

21. The complainant has failed his memo of calculation as on 01-06-2023 claiming a refund of Rs. 1,34,71,817/-(Rupees One Crore Thirty Four Lakhs Seventy One Thousand Eight Hundred and Seventeen) including interest. The respondent has not resisted the said memo of calculation filed by the complainant and he has not submitted his Memo of calculation inspite of providing sufficient opportunity. On verification of the memo of calculation filed by the complainant reveals that his claim is genuine.

22. Having regard to all these aspects as mentioned above, this Authority concludes that the complainant is entitled for refund with interest as claimed vide his memo of calculation date 01-06-2023.

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

24. Accordingly the point raised above is answered in the Affirmative.

25. My answer to point No. 2:- In view of the above discussion, I am of the opinion that this complaint deserves to be allowed. Hence, I proceed to pass the following

ORDER

In exercise of the powers conferred under Section 31 of the Real Estate (Regulation and Development) Act, 2016, the complaint bearing No. CMP/200924/0006572 is hereby allowed. Respondent is directed to pay a sum of Rs. 1,34,71,817/- (Rupees One Crore Thirty Four Lakhs Seventy One Thousand and Eight Hundred and Seventeen only) towards refund with interest to the complainant within 60 days from the date of this order, calculated at 9% from 07/10/2015 to 30/04/2017 and at MCLR + 2% from 01/05/2017 till 07/09/2022.

The interest due from 08/09/2022 up to the date of final payment will be calculated likewise and paid to the complainant.

The complainant is at liberty to initiate action for recovery in accordance with law if the respondent fails to pay the amount as per the order of this Authority.

No order as to the costs.