Greetings,
Please find the attached links to various videos pertaining to important matters related to RERA. Hope you will have a educative viewing.
1. Solution for dispute arising out of settlement agreement with EMAAR.
2. What is a valid offer of possession
3. Execution powers of Hon. RERA authority
4. Assured returns under Hon. RERA authority.
5. The concept of constructive possession
6. Actions Hon. RERA can take for execution of their own orders
For Informative and Educative Purposes Only
MUST READ
Validity
of offer of possession: It is necessary to clarify this concept because after
valid and lawful offer of possession, liability
of promoter for delayed offer of possession comes to an end. On the other hand, if the possession is not valid
and lawful, liability of promoter continues
till a valid offer is made and allottee remains entitled to receive interest for the delay caused in handing
over valid possession. The authority after detailed
consideration of the matter has arrived at the conclusion that a valid
offer of possession must have
following components:
1. Possession must be offered after obtaining
occupation certificate- The subject unit after its
completion should have received occupation certificate
from the concerned department certifying that all the basic infrastructural facilities have been laid and are operational. Such infrastructural
facilities include water supply, sewerage system, storm water drainage, electricity supply, roads and street
lighting.
2. The subject unit should be in habitable condition- The test of habitability
is that the allottee should be able to live in the subject unit within 30 days of the offer of possession after carrying out basic cleaning
works and getting
electricity, water, and sewer connections, etc. from the relevant authorities. In a habitable
unit, all the common facilities like lifts, stairs, lobbies,
etc. should be functional or capable of being made functional within 30 days after completing prescribed formalities.
The authority is further of the view that minor defects like little gaps in the windows
or minor cracks in some of the tiles, or chipping plaster
or chipping paint at some places or improper functioning of drawers of kitchen or
cupboards etc. are minor defects which
do not render an apartment uninhabitable. Such minor defects can be rectified later at the cost of the
developers. The allottees should accept possession of an apartment
with such minor defects under protest.
This authority will award suitable relief or compensation for rectification of minor defects after taking over of possession under protest.
However, if the subject
unit is not at all habitable because
the plastering work is yet to be done, flooring
works is yet to be done, common
services like lift etc. are non-operational, infrastructural facilities
are non-operational, then the subject
unit shall be deemed as uninhabitable and offer of possession of an uninhabitable unit will not be considered a legally valid
offer of possession.
3. Possession
should not be accompanied by unreasonable additional demands-
In
several cases, additional demands are made and sent along with the offer of possession. Such
additional demands could be of minor
nature, or they could be significant and unreasonable which puts heavy
burden upon the allottees. An offer accompanied with unreasonable demands beyond the scope of
provisions of agreement should be termed an invalid offer of possession. Unreasonable demands itself
would make an offer unsustainable in the eyes of law. The authority is of the view that if the
additional demands are made by the developer, the allottees may accept possession under protest or decline to take possession raising objection against
unjustified demands.
ADVOCATE
KULDEEP KUMAR KOHLI
KOHLI
AND KOHLI LAW ASSOCIATES
V-3/11,
DLF PHASE III, GURUGRAM,
HARYANA – 122002
Ph:01244014318,0124
4990107
Mail
ID: contact@kohlilegal.com
For Informative and Educative Purposes Only
MUST READ
In
most of the builder buyer’s agreements, the allottee is entitled to delayed possession charges/ interest only at the nominal rate ranging from Rs. 5/- to Rs.15/- per square feet per month for
the period of such delay depending upon projects,
whereas the promoter
is entitled to exorbitant interest
ranging from 18% to 24% per annum on account
of delay in making payments by the allottees. Time and again,
the Hon'ble Supreme Court and various High Courts as well as the NCDRC
have declared these types of discriminatory terms and conditions of the
builder buyer’s agreement not final and binding. The Act has provided a level playing
field in this regard and has mandated
that the rate of interest
chargeable from the allottee by the
promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the
allottee, in case of default. The legislature
in its wisdom in the subordinate legislation i.e., the rules, has
determined the prescribed rate of
interest as per rule 15 of the rules. So, the rate of interest so determined by the legislature, is reasonable and if the said rule is followed
to award interest,
it will ensure
uniform practice in all the cases. To support this contention
reference can be made from the Judgement of Pioneer Urban Land &
Infrastructure Limited Vs. Govindan Raghavan, 2019(2) R.C.R. (Civil) 738. In
the aforesaid judgment, the Hon’ble Apex Court finding the terms and conditions
of the agreement to be one sided unfair and unreasonable has upheld the award
of the National Commission awarding the interest as per Rule 15 of the Rules at
the rate of 10.7% per annum and not on the contractual rate The rule 15 of the
rules has determined the prescribed rate of interest and it provides that for
the purpose of proviso to section 12; section 18; and sub- sections (4) and (7)
of section 19, the “interest at the rate prescribed” shall be the State Bank of
India highest marginal cost of lending rate +2%. Consequently, as per website
of the State Bank of India i.e., https://sbi.co.in, the marginal cost of
lending rate (in short, MCLR) as on date i.e., 12.08.2021 is 7.30%.
Accordingly, the prescribed rate of interest will be marginal cost of lending
rate +2% i.e., 9.30%.
KOHLI
AND KOHLI LAW ASSOCIATES
V-3/11,
DLF PHASE III, GURUGRAM,
HARYANA – 122002
Ph:01244014318,0124
4990107
Mail
ID: contact@kohlilegal.com
WWW.KOHLILEGAL.COM
For Informative and Educative Purposes Only
MUST READ
The provisions of the Act shall become applicable even to the un- registered projects or the projects which
do not require registration with
respect to the fulfilment of the obligations as per the provisions of the Act, the rules and the regulations framed thereunder.
The authority is competent to deal with the complaints filed by the aggrieved persons/consumers irrespective of the fact whether
the project being registered
or unregistered the authority has
been burdened with the responsibilities to regulate the real estate projects within its territorial jurisdiction. To conclude
that the authority
shall only have control over the projects
which have been registered with it and not over the projects
which have not been deliberately or otherwise got registered with it, would be an interpretation
nugatory to the objects
sought to be achieved by the Act in its letter and spirit. As already mentioned, there is no distinction in
the Act, or the rules made thereunder between
the registered and unregistered projects. Moreover, such type of artificial classification to bring out the unregistered projects
from the purview of the Act may violate the
legislative intent and will not stand the touchstone
of equality as provided under Article 14 of the Constitution of India qua the consumers in the registered and unregistered projects.
The
statement that authority has no jurisdiction over the unregistered
projects if accepted, the very purpose of the Act would be frustrated. The consumers of such projects
will be deprived of the remedies provided under the provisions of the
Act, even though they are also the consumers of the real estate projects. Such
an absurd interpretation would defeat the very purpose, policy, aim and object of
the Act. It was felt that the
consumers/home buyers were being exploited by the promoters/developers and they were helpless
to get their grievances redressed effectively and expeditiously
which necessitated the enactment of the
Act. Thus, the very substance of the statement that the authority had no jurisdiction as the project
was not registered with it, is without
any substance.
Similar view has been taken by the Hon’ble Real Estate Appellate Tribunal Jaipur, Rajasthan
in appeal no.RAJ-RERA-C-2018-2370 titled as Jain Realtors
(P) Ltd. Vs. The Registrar of Real Estate Regulatory Authority, Jaipur, Rajasthan, and others, decided on 09.10.2018 and by the Hon’ble Real
Estate Appellate Tribunal, Punjab, SAS Nagar (Mohali) in appeal no.49 of 2018 titled as M/s Silver City
Construction Ltd. versus State of Punjab
and others, decided on July 24, 2019. The Division Bench of the Hon’ble
Bombay High Court in case Mohammed Zain Khan Vs. Maharashtra Real Estate
Regulatory Authority and others, Writ Petition (Lodging) No.908 of 2018 decided on July
31st, 2018 has given
direction in the complaint tendered
online by the Allottees and other similarly
situated complaints, in respect of unregistered projects
would be entertained and same will be dealt with in accordance with the procedure
being adopted by the Maharashtra Real Estate Regulatory Authority in respect
of disposal of complaints
in relation to registered projects. This direction issued by the Division
Bench of Hon’ble
Bombay High Court
clinches the matter
and makes it clear that the authority is competent
to deal with the complaints filed by the aggrieved
persons/consumers irrespective of the project
being registered or unregistered.”
KOHLI
AND KOHLI LAW ASSOCIATES
V-3/11,
DLF PHASE III, GURUGRAM,
HARYANA – 122002
Ph:01244014318,0124
4990107
Mail
ID: contact@kohlilegal.com
WWW.KOHLILEGAL.COM
For Informative
and Educative Purposes Only
MUST
READ
ADVOCATE KULDEEP KUMAR KOHLI
KOHLI AND KOHLI LAW ASSOCIATES
V-3/11, DLF PHASE III, GURUGRAM,
HARYANA –
122002
Ph:01244014318,0124 4990107
Mail ID: contact@kohlilegal.com
WWW.KOHLILEGAL.COM
For Informative and Educative Purposes Only
MUST READ
There is no
classification of registered or un-registered projects in the definition of the real estate projects.
The
definitions of project and real estate project as defined in section 2(zj) and 2(zn) respectively will cover all the projects
where the development of a building or the land into plots is carried
out for the purpose of sale of the said
apartment or the plot or the building. There is no classification of
registered or unregistered projects
in the definition of the real estate projects. The necessity to enact the present Act was felt as there was no
special statute to provide effective
remedy for redressal of the grievances of the home buyers. Keeping in view the background of the
Act, it must be looked from the perspective
harmony with the aim and objects for
which it was enacted. The entire Act came into force w.e.f.
01.05.2017.
It is well settled
principle that the preamble of the statute
has a guide light to ascertain
the legislative intent. The preamble of the Regulatory Authority has been
established for regulation and promotion of the real estate sector
and to protect the interest
of the consumers in real estate
sector.
The
Definitions mentioned in Real Estate Regulation act 2016 cover all the projects
where the development of a building
or the land into plots
is carried out for the purpose of sale of the said apartment or the plot or the building. There is no Classification of registered or
unregistered projects in the definition of the
real estate projects.
KOHLI
AND KOHLI LAW ASSOCIATES
V-3/11,
DLF PHASE III, GURUGRAM,
HARYANA – 122002
Ph:01244014318,0124
4990107
Mail
ID: contact@kohlilegal.com
WWW.KOHLILEGAL.COM
For Informative and Educative Purposes Only
MUST READ
In view of the deficiency in the application, the
promoter cannot claim the deemed issuance of the occupancy certificate.
The
application for issuance of occupancy certificate shall be moved in the prescribed form and accompanied by the
documents mentioned in sub-code 4.10(1)
of the Haryana Building Code, 2017. If the application submitted is not in prescribed form or the requisite
documents as mentioned therein has not
been submitted along with application, then application for issuance of occupation certificate cannot be said to
be complete. If there are certain prerequisite
those are to be met with before considering application for issuance
certificate, then also in absence
of such requisites being fulfilled, the application
cannot be said to complete. If there is a provision of deemed issuance of occupation certificate in case
no response is received from the competent
authority, then such deemed issuance of occupation certificate clause shall be applicable once the
application for issuance of occupation certificate is moved in prescribed form and accompanied by documents mentioned in code 4.10 of the Haryana Building
Code, 2017 and also prerequisite for applying occupation certificate has been met with. The occupancy certificate has been issued for
this project (Palm Gardens) on 10.01.2018, 02.05.2019 and 17.10.2019 and the application submitted by the promoter was not accompanied with the fire NOC which has been issued only on
27.11.2017, 27.03.2019 and 05.07.2019 respectively. By that time, the rules had
already become applicable.
The
Hon’ble HRERA doesn’t find any substance in the plea raised by promoter that
the honorable authority had no jurisdiction to see as to whether the application moved by the promoter was complete or incomplete as this
function falls within the administrative jurisdiction of the Director
Town & Country Planning,
because once the promoter was claiming issuance
of deemed occupancy
certificate before the authority on the basis of the provisions
of the Building Code, the authority could not be a silent spectator to the deficiency in the application submitted by the promoter for issuance of the
occupancy certificate. Thus, in view of the deficiency in the application, the promoter cannot claim the deemed
issuance of the occupancy certificate. There
is no applicability of deemed occupation certificate in case of deficient application, application not being in prescribed form, application not accompanied
by prescribed documents or without meeting the prerequisite for applying for occupation certificate. The incomplete application is no application in eyes of law. Therefore, this project was neither issued occupancy
certificate nor the completion certificate on or before the date of enforcement of the Act. So, there is no
escape from the conclusion that the project in question required
registration under section
3 of the Act. Once it is found
that the project in question required registration, it will certainly be the ‘ongoing project’
and provisions of the Act, the rules and the regulations framed
thereunder will become applicable.
ADVOCATE KULDEEP KUMAR KOHLI
KOHLI AND KOHLI LAW ASSOCIATES
V-3/11, DLF PHASE III, GURUGRAM,
HARYANA –
122002
Ph:01244014318,0124 4990107
Mail ID: contact@kohlilegal.com
WWW.KOHLILEGAL.COM
For Informative and Educative Purposes only.
MUST READ
Execution Proceedings in the matter of: Chanderkant Soni Versus
BPTP Limited (BPTP PARK GENERATIONS).
Order on Powers of The Honourable RERA Gurugram of arrest of the
Judgment Debtor in exercise of powers under Order XXI Rule 37(2) of the CPC.
|
Day and date |
12.02.2021 and Friday |
|
Execution No. |
E/645/2020 titled as Prashant Chanderkant Soni VS BPTP Limited
|
|
Complaint No. |
444/2019 |
|
Decree holder |
Prashant Chanderkant Soni |
|
Represented through |
Shri Kuldeep Kumar Kohli Advocate |
|
Judgement debtor |
BPTP Ltd. |
|
Represented through |
Sh. Venkat Rao Advocate |
|
Proceedings recorded by |
Naresh Kumari |
1.
While exercising powers under Order XXI
Rule 30 of the Code, the Authority hereby orders attachment of the above said
bank account and directs the bank manager to remit the decretal amount in favor
of the decree holder by way of producing demand draft before the Authority
within 1.5 days, failing which the bank manager is directed to explain the
reasons for non-compliance.
2.
The Authority further orders that if the
decree for payment of money remains unsatisfied for a period of 30 days, the judgment
debtor shall file an affidavit stating the particulars of the assets of the
judgment debtor.
3.
As per provisions of Order XXI Rule
41(3) of the Code it is hereby made clear to the judgment debtor that in case
of disobedience of order of the Authority made under Order XXI Rule 41(2) of
the Code the Authority may direct that the person disobeying the order be
detained in the civil prison for a term not exceeding three months unless
before the expiry of such terms the Authority directs his release.
4.
In case the decree is not satisfied
before the next date of hearing and the particulars of the assets of the
judgment debtor are not produced within the time specified above, the judgment
debtor shall be present before the Authority on the next date of hearing to
show cause why he should not be committed to civil prison.
5.
It is further clarified that if
appearance is not made in obedience to this notice, the Authority shall if the
decree holder so requires issue warrant for the arrest of the judgement debtor
in exercise of powers in Order XXI Rule 37(2) of the Code.
Advocate Kuldeep Kumar Kohli
