Newsletter-RERA

Can allottees challenge the refund order of RERA through a writ and seek allotment after commencement of CIRP against the Builder? – Mrs Manju Rakesh Vs. State of UP and Ors. – Allahabad High Court

The Hon’ble Allahabad High Court held that:
(i) The order directs the refund of the amount cannot be entertained at this belated stage in a writ petition, bypassing the statutory alternative remedy of an appeal under the Real Estate (Regulation and Development) Act, 2016.
(ii) An unjustified interference with the proceedings initiated under the Insolvency and Bankruptcy Code, 2016, breaches the discipline of law.
(iii) The Insolvency and Bankruptcy Code, being a complete Code in itself, with sufficient checks and balances remedial avenues and appeals, any interference by the High Court in exercise of its extraordinary powers under Article 226 of the Constitution, which may have the effect interdicting the CIRP, would not be permissible as a matter of course.

Can allottees challenge the refund order of RERA through a writ and seek allotment after commencement of CIRP against the Builder? – Mrs Manju Rakesh Vs. State of UP and Ors. – Allahabad High Court Read Post »

Whether Promoter is entitled to deduction of the dues such as GST etc. from the amount to be refunded to the allottee? – Ocus Skyscrapers Realty Pvt. Ltd. (Formerly known as Ocus Skyscrapers Realty Ltd.) Vs. Satish Kumar Chhabra – Haryana REAT

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Whether Promoter is entitled to deduction of the dues such as GST etc. from the amount to be refunded to the allottee? – Ocus Skyscrapers Realty Pvt. Ltd. (Formerly known as Ocus Skyscrapers Realty Ltd.) Vs. Satish Kumar Chhabra – Haryana REAT Read Post »

Builder is not entitled to levy holding charges | Even if allottee takes possession of the unit and is granted a possession certificate by the promoter, it would still not take away his right to claim Delayed Possession Charges (DPC) till a valid offer of possession (proceeded by an occupation certificate) is made to him – Manjeet Singh Rana Vs. Taneja Developers Infrastructure Ltd. – Haryana REAT

Hon’ble Haryana REAT held that:
(i) Even if allottee takes possession of the unit and is granted a possession certificate by the promoter, it would still not take away his right to claim DPC till a valid offer of possession (proceeded by an occupation certificate) is made to him. It is, thus, directed that the allottee would be entitled to DPC from due date of possession i.e. 25.07.2016 till a valid offer of possession is made to him.
(ii) As regards the Holding Charges, the issue is no longer resintegra in view of the judgment of Hon’ble Supreme Court in DLF Home Developers Ltd., (2020) ibclaw.in 153 SC, wherein it was held that the builder is not entitled to levy holding charges.

Builder is not entitled to levy holding charges | Even if allottee takes possession of the unit and is granted a possession certificate by the promoter, it would still not take away his right to claim Delayed Possession Charges (DPC) till a valid offer of possession (proceeded by an occupation certificate) is made to him – Manjeet Singh Rana Vs. Taneja Developers Infrastructure Ltd. – Haryana REAT Read Post »

RERA Authority can even invoke its suo-moto powers when the promoter seeks to proceed further with a project – TDI Infrastructure Pvt. Ltd. Vs. HRERA, Panchkula – Haryana REAT

The plea that the Authority has resorted to review its order is misconceived. The Authority being regulatory body has to act as per law and it can even invoke its suo-moto powers when the promoter seeks to proceed further with a project. It has to ensure that at this stage, the promoter acts in accordance with the provisions of the Real Estate (Regulation and Development) Act, 2016 rules and regulations made thereunder.

RERA Authority can even invoke its suo-moto powers when the promoter seeks to proceed further with a project – TDI Infrastructure Pvt. Ltd. Vs. HRERA, Panchkula – Haryana REAT Read Post »

A land owner, who will get certain share of built-up area in the project as per development agreement, cannot be termed as an “allottee” as defined under 2(d) of the Real Estate (Regulation and Development) Act, 2016 (RERA) – Lt. Col. Jagdish Chandra Sharma Vs. The Real Estate Regulatory Authority Rajasthan and Anr. – Rajasthan REAT

The Hon’ble Rajasthan REAT held that though the land owner has the certain share of built-up area in terms of number of flats, however, in absence of any agreement to sale or any transaction of amount between the appellant-complainant and the respondent-promoter, the appellant-complainant (the land owner) cannot be termed as an “allottee” as defined under 2(d) of the Real Estate (Regulation and Development) Act, 2016.

A land owner, who will get certain share of built-up area in the project as per development agreement, cannot be termed as an “allottee” as defined under 2(d) of the Real Estate (Regulation and Development) Act, 2016 (RERA) – Lt. Col. Jagdish Chandra Sharma Vs. The Real Estate Regulatory Authority Rajasthan and Anr. – Rajasthan REAT Read Post »

Whether a Partial Completion Certificate (CC) can be issued by the Competent Authority for a few towers of a real estate project upon the enforcement of the RERA Act 2016 falls within the ambit and scope of an ‘ongoing project’? – Eshan Singh Vs. Ansal Properties and Infrastructure Ltd. – Uttar Pradesh REAT

Having regard to the provisions contained in U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010, read with the explanation of sub-clause (c) of sub-section 2 of Section 3 of Act 2016, the Hon’ble Appellate Tribunal is not persuaded to accept the submissions of the learned counsel for the appellant that the project in respect of Towers/Phase F,G &H, would fall in the definition and ambit/scope of an ongoing project. On a specific query, learned counsel for the appellant could not show any illegality or perversity in the impugned order, passed by the Regulatory Authority.

Whether a Partial Completion Certificate (CC) can be issued by the Competent Authority for a few towers of a real estate project upon the enforcement of the RERA Act 2016 falls within the ambit and scope of an ‘ongoing project’? – Eshan Singh Vs. Ansal Properties and Infrastructure Ltd. – Uttar Pradesh REAT Read Post »

Can the benefit of the condonable period, which expired during the Court’s vacation, be granted when the petition is filed immediately after the reopening of the Court, in exercise of the power under Section 4 of the Limitation Act, 1963? – My Preferred Transformation & Hospitality Pvt. Ltd. and Anr. Vs. Faridabad Implements Pvt. Ltd. – Supreme Court

The Hon’ble Supreme Court has held that in light of the current position of law, the Section 34 application preferred by the appellant is barred by limitation based on the following conclusions:
(i) There is no wholesale exclusion of Sections 4 to 24 of the Limitation Act when calculating the limitation period under Section 34(3) of the ACA.
(ii) Section 4 of the Limitation Act applies to Section 34(3) of the ACA only to the extent when the 3-month period expires on a court holiday. It does not aid the applicant when the 30-day condonable period expires on a court holiday.
(iii) In view of the applicability of Section 4 of the Limitation Act to Section 34 proceedings, Section 10 of the GCA does not apply and will not benefit the applicant when the 30- day condonable period expires on a court holiday.

Can the benefit of the condonable period, which expired during the Court’s vacation, be granted when the petition is filed immediately after the reopening of the Court, in exercise of the power under Section 4 of the Limitation Act, 1963? – My Preferred Transformation & Hospitality Pvt. Ltd. and Anr. Vs. Faridabad Implements Pvt. Ltd. – Supreme Court Read Post »

Section 13 of the RERA Act, 2016 states that the promoter shall not accept a deposit or advance without first entering into an agreement for sale – Apartment Owners Apex Association (Kerala) and Anr. Vs. State of Kerala and Ors. – Kerala High Court

Section 13(2) as above stipulates that the agreement for sale referred to in sub-section (1) shall be in the form as may be prescribed. Section 84 of the RERA Act of 2016 confers powers on the appropriate Government to make Rules. Section 84(2)(h) expounds on the appropriate Government to make Rules to form and particulars of agreement for sale under Section 13(2) of the RERA Act of 2016. In exercise of the powers conferred under Section 84 of the RERA Act of 2016, the Government of Kerala has framed the Kerala Real Estate (Regulation and Development) Rules, 2018 (Rules of 2018). Rule 2(a) defines ‘Act’ to mean the RERA Act of 2016. Chapter II deals with real estate projects, and as regards the agreement for sale, the sale is provided in Rule 10.

Section 13 of the RERA Act, 2016 states that the promoter shall not accept a deposit or advance without first entering into an agreement for sale – Apartment Owners Apex Association (Kerala) and Anr. Vs. State of Kerala and Ors. – Kerala High Court Read Post »

Is Resolution Professional to be considered a ‘Promoter’ for the purposes of the provisions of Section 43(5) of RERA? | Can an exemption be granted from making a pre-deposit u/s 43(5) of RERA in the case of a Corporate Debtor under insolvency? – Umang Realtech Pvt. Ltd. Vs. Mrs Daphne Reita Rajan Sharma and Anr. – Delhi High Court

In this case, the issues are:
(i) Is it required to make a pre-deposit under Section 43(5) of RERA even if the Promoter/Corporate Debtor is undergoing corporate insolvency?
(ii) Is Resolution Professional to be considered as a ‘Promoter’ for the purposes of the appeal and the application of provisions of Section 43(5) of the RERA?
(iii) Can security of flat be offered instead of pre-deposit requirement under Section 43(5) of RERA?

Is Resolution Professional to be considered a ‘Promoter’ for the purposes of the provisions of Section 43(5) of RERA? | Can an exemption be granted from making a pre-deposit u/s 43(5) of RERA in the case of a Corporate Debtor under insolvency? – Umang Realtech Pvt. Ltd. Vs. Mrs Daphne Reita Rajan Sharma and Anr. – Delhi High Court Read Post »

Whether a welfare/ No profit-No loss Organization would fall within definition ‘promoter’ under Section 2(zk) of Real Estate (Regulation & Development) Act, 2016? | Whether an association of persons, registered under the Societies Registration Act and claiming to be a No Profit-No Loss Organisation can bypass the mandate of Section 18 of RERA? – Central Government Employees Welfare Housing Organisation (CGEWHO) Vs. Rajender Mohan Saxena – Uttar Pradesh REAT

In this important judgment, the following questions were answered:
(i) Whether appellant organisation, being a welfare/‘No profit’ – ‘No loss’ organisation would fall within definition ‘promoter’ under Section 2(zk) of Real Estate (Regulation & Development) Act, 2016;
(ii) Whether proviso to Section 18 would apply to the appellant organisation i.e. payment of delay interest till handing over of possession of the unit being a welfare/‘No profit’ – ‘No loss’ Government organisation.
(iii) Whether the appellant organisation is entitled to 15 months’ zero period with effect from 25.03.2020 to 24.06.2021 as per Office Order dated 18.08.202, suffered due to Covid-19 pandemic.

Whether a welfare/ No profit-No loss Organization would fall within definition ‘promoter’ under Section 2(zk) of Real Estate (Regulation & Development) Act, 2016? | Whether an association of persons, registered under the Societies Registration Act and claiming to be a No Profit-No Loss Organisation can bypass the mandate of Section 18 of RERA? – Central Government Employees Welfare Housing Organisation (CGEWHO) Vs. Rajender Mohan Saxena – Uttar Pradesh REAT Read Post »

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