RERA Updates

Ashwin Shah June 1, 2021 RERA ⏱️ 3 min read

Issues:

Whether allottee can withdraw from the project even before issuance of allotment letter ?

Whether reservation of flat by developer can curtail right of allottee to withdraw from the project?

Whether promoter can forfeit the token or booking amount, paid by the allottee, as per booking form namely request for reservation of flat?

Whether allottee can file complaint u/s 31 against Developer action for forfeiture?

Whether relief claimed by allottee can be challenged by Developer being “de horse” i.e beyond the provisions of the Act, Rules and Regulation?

Fact of the Case:

Allottee booked the flat no 807 in the project called“Vaikunth Cluster-2” for a consideration of Rs 1,05,04,060/- on 29.01.2019 and paid the booking amount ofRs 1,12,393/- and after that amount of Rs 4,49,574/- was paid on 01.03.2019.

later on, due to some medical reason, the allottee decided to cancel the booking and written an email on 18.05.2019 requesting the promoter to cancel the booking and return the amount paid i.e. Rs 5,61,967/- without the interest.

However, the promoter replied vide email dated 20.05.2019 that amount paid by allottee

has forfeited due to cancellation of booking.

l Aggrieved with the response from the promoter, allottee filed the complaint before MahaRERA Authority seeking refund of amount without interest.

During the course of hearing the promoter raised the objection with regards to maintainability of the complaint but the MahaRERA Authority passed the order directing the prompter to refund the amount as per the booking form signed by the parties.
Aggrieved with the order of MahaRERA Authority, allottee filed the appeal before MahaRERA Appellate Tribunal for the reason of non clarification in maharera order for refund of booking amount with or without forfeiture clause mentioned in booking form signed by the allottee.

Observation of Hon’ble Appellate Tribunal :-

The MahaRERA Appellate Tribunal observed that the order passed by the MahaRERA Authority is without considering the correct facts of the case. Tribunal observed that MahaRERA authority directed to refund in accordance with the “booking form signed by both the parties” however, there is nosuch documents exist on the records and the booking was made as per request form signed only by the allottee and not the promoter.

Further, it is observed that agreement to sale is not executed between the allottee and promoter and only documents signed by the allottee i.e. request for reservation containing

the 33 terms and conditions and one of condition restrict the allottee to withdraw the request for reservation.

The MahaRERA Appellate Tribunal observed that “Allottees cannot be restrained from exercising their right of withdrawing the request. Right to make request for reservation of flat includes the right to withdraw such request for reservation of flat”.

Further, it is observed that unreasonable and unfair transaction with the one-sided favourable terms cannot be enforced and Promoter cannot take undue advantage of such one sided and unreasonable condition.

Promoter shall pay entire booking amount of Rs. 5,61,967l /- (RupeesFive Lacs Sixty- One Thousand Nine HundredSixty- Seven) to Allotteesthough the claim of refund is not governed by any specific provision of RERA, it cannot be ignored that object of RERA is to protect interest of consumer on the conclusion that request to reserve a flat by the allottee includes the right to cancel the reservation.