BEFORE THE TAMIL NADU REAL ESTATE APPELLATE TRIBUNAL

(TNREAT)

(Tamil Nadu, Puducherry, Andaman & Nicobar Islands)

(Under the Real Estate Regulation And Development Act 2 0 1 6 )

Reserved o n : 2 1 . 0 7 . 2 0 2 3

Delivered o n : 3 1 . 0 7 . 2 0 2 3

Coram : H o n ' b l e Mr.Justice M.Duraiswamy, Chairperson

Mr.R.Padmanabhan, Judicial Member

Appeal Nos. 1 8 and 1 9 of 2023

A. No. 1 8 of 2023

Vijay Shankar Venugopal

rep. by his P . 0 . A . Holder

S.K.Balasubramanian ... Ap p e ll ant

- Vs­

1. M / s . R G E Constructions and Development Pvt. Ltd.,

rep. by its Directors

a) Srin i vasan V a sud e van

b) Pradeep N enumal Lala

c) Jagade esh Babu R amanathan

2. Niranjana R ama k rishnan

A uthor iz ed Si g nator y of M / s . R G E Constructions

and D evelopment Pvt. Ltd . . .. Res p ondents

&

1/9
A . N o . 1 9 of 2023

S . K . Balasubramani an ... Appellant

- Vs -

1. M / s . R G E Constructions and Development Pvt. L t d . ,

Rep. by its Director

a) Srinivasan Vasudevan

b) Pradeep Nenumal Lala

c) Jagadeesh Babu Ramanathan

2. Niranjana Ramakrishnan

Authorized Signatory of M/ s. RGE Constructions

and Development Pvt. Ltd. ... Respondents

Prayer:

Appeals filed under Section 44 of the Real Estate (Regulation and

Development) Act, 2016 against the common order of dismissal of the

complaints in C . C . P . N o s . 6 2 and 63 of 2020 dated 1 3 . 0 2 . 2 0 2 3 on the file

of the Single member, TNRERA and to grant the reliefs sought for in

both the complaints by ordering refund of the advance amount with

interest as prayed for.

For Appellants in both the appeals : Mr. R. Ramasubramaniam Raja

For Respondents in both the appeals: No appearance

COMMON ORDER

The brief facts that are relevant for the disposal of the above

appeals are as follows:

2/9
 1. In these two appeals the facts and circumstances are similar to

each other and common questions are involved in these two appeals.

Hence we decided to dispose both the appeals by a common order.

2. The appellant, Vijay Shankar Venugopal in A . N o . 1 8 / 2 0 2 3 is the

son-in-law of the appellant S.K.Balasubramanian in A.No.19/2023. In

the year 2 0 1 2 they booked two separate three bed room apartments,

each one, in their individual name, in the residential project by name

'Embassy Residency' promoted by the 1 respondent/promoter. As per

the construction agreement the respondents agreed to hand over

possession within three years. lnspite of the expiry of seven years as of

2 0 1 9 possession was not handed over to the appellants.

3. It is the case of the appellants that the respondents obtained

partial completion certificate dated 13.04.2017 from the CMDA and

invited the appellants for inspecting the apartments. The appellants

inspected the apartments and found that the construction of

apartments was not completed in full and that the apartments were

not fit for habitation. According to the appellants the quality of

construction was very poor. Expressing their concern over the poor

construction quality the appellants sent various emails to the

respondents. Several hundreds of emails were exchanged between the

parties in this regard from April 2 0 1 7 to April 2 0 1 9 .

4. To give a quietus to the dispute the appellants vide their email

dated 2 7 . 0 4 . 2 0 1 9 expressed their willingness to take possession "Under

Protest". However, the respondents vide their email dated 0 3 . 0 5 . 2 0 1 9

rejected the request of the appellants by stating that handing over of

possession " U n d e r Protest" was against their company's procedure. The

appellants vexed with the adamant attitude of the respondent, decided

3/9
to cancel their booking on the ground of poor quality of construction

and delay in handing over of the apartments. The appellants, vide

registered letter dated 03.12.2019, conveyed their decision to cancel

their booking and demanded refund of the entire amount paid by them

with interest and compensation. For which the respondents sent a

formal reply to the appellants on 11.12.2019 without saying anything

on the demand of refund.

5. Left with no other option, the appellants preferred separate

complaints before the Adjudicating Officer, TNRERA in C . C. P . N o s . 6 2 /

2020 and 63 of 2020 with prayer to refund the amounts paid by them

with interest and for compensation. The said complaints were originally

tried by the Adjudicating Officer and later transferred to the Single

Member of TNRERA in view of the judgment of the Hon'ble Supreme

Court of India i n Newtech Promoters and Developers Pvt. Ltd. Vs State

of U . P . &Ors.

6. The Single Member, TNRERA, after hearing both sides, by his

common order dated 13.02.2023 dismissed both the complaints by

concluding that the appellants already took possession of the

apartments in the year 2 0 1 9 and therefore they are not entitled to ask

for refund of the amount paid by them. Moreover, accepting the case

of the respondents, the Single Member directed the appellant in

A.No.18/2023 namely, Vi jay Shankar Venugopal to pay a sum of

Rs.1,32,139/- towards the balance amount due to the respondents,on

account of improper calculation of interest. Likewise the Single

Member, also directed the respondent to pay a sum of Rs.3,56,327/­

due to the appellant in A . N o . 1 9 / 2 0 2 3 namely S . K . B a l a s u b r a m a n i a n , on

account of improper calculation of interest. Further, the Single

4/9
Member, TNRERA gave liberty to the appellants to move the

Adjudicating Officer for compensation on the ground of delay in

handing over of possession. Aggrieved over the common order passed

by the Single Member, TNRERA the appellants have filed these appeals.

7. The notice ordered to Respondents in both the appeals were

duly served on the Respondents through Registered post. As permitted

the private notice sent by the counsel for the appellants was also

served on the respondent. lnpsite of service of notice through both

ways and inspite of sufficient time granted for entering appearance,

the respondents failed to appear either in person or through their

counsels.

8. Heard the counsel for the appellants. Records perused. We

have carefully perused the impugned o r d e r . I n paragraph No. 9(a) of the

impugned order, the Single Member had observed as follows,

"It is very clearly in this two CCPs the date of

delivery as per the construction agreement was

28.02.2015, whereas in both the CCPs the possession

had been handed over on 2 0 1 9 (as admitted by the

complainants in the complaint at page 9 paragraph

16 in both the CCPs)"

We have examined the complaint in this regard. The appellants

nowhere in their complaints have admitted either directly or

indirectly that they have taken possession of the apartments. The

relevant portion in paragraph 16 of the complaint is extracted

below.

"But the respondents have miserably failed to

provide the facilities as mentioned in the

5/9
 construction agreement and the respondents are

forcing the applicant to take the possession of the

apartment in the year 2 0 1 9 . "

The Single Member of TNRERA completely misunderstood the above

averments made by the appellants at page 9 paragraph 16 of their

complaint. It is not even the case of the respondents, that they have

handed over possession to the appellants at any point of time. Even in

their reply letter dated 11.12.2019 (ExA8), issued by the respondents to

the cancellation letter d t . 0 3 . 1 2 . 2 0 1 9 (EA7) issued by the appellants, the

respondents have not stated anything about the handing over of

possession. The Single Member, TNRERA omitted to take note of these

two letter correspondences marked as Ex.A7 and Ex.AB on the side of the

complainants in both the cases. Had these two letter correspondences

were brought to the notice of the Single Member, he would have come to

a different conclusion. Therefore the impugned order is liable to be set

aside.

9. Let us now consider afresh, the entitlement of the appellants

for refund of the amount paid by the appellants on various dates, along

with interest from the date of respective dates of payments till date of

actual refund. There is no dispute between the parties with regard to the

execution of sale agreement and construction agreement on 18.04.2012

and subsequent registered sale deed with regard to LIDS share on

13.07.2015. Admittedly the apartments though booked on 18.04.2012,

were not handed over to the allottees even after the lapse of seven years

till January 2020 i . e the month in which the complaints were preferred.

Subsequent to the issuance of partial completion certificate by the CMDA

on 13.04.2017, at the invitation of the respondents, the appellants

6/9
inspected the project premises. After such inspection the allottees have

noticed some important defects to be rectified. In this regard several

hundreds of email communications were exchanged between the parties

from April 2 0 1 7 to April 2019.

10. As there was no progress for two years and with a view to give

a quietus to the dispute, the appellants who are at the receiving end,

came forward to take possession of the apartments "Under Protest. This

was evident from their email dated 27.04.2019. However, the

respondents vide their email dated 03.05.2019 bluntly rejected the

re qu e st of the a pp e ll an t s by stating that handing over of p ossess i on

" U n d e r Protest" was a ga in s t their compan y' s proced u re.

11. U n a bl e to take possession of the apartments , the appellants

have can c e ll ed their b oo k in g a nd demanded refund of the amo u nts paid

by them with i nterest an d compensation, vide their detai l ed letter dated

03.12.2019 (Ex.A7). In this letter the a pp ellants have ju sti fi ed the

cance ll at i on by h i g hl i g h t i n g the inade qu ate ca pacity of water treatment

and sewage treatment p l an and also the im p roper water s upp l y .

Moreover, in the same letter the appellants have expressed their

diss at isf actio n over t h e s tr u ct u ra l stability of the bu il din g and raised their

d ou b t s over the q u al it y of e l ectrica l wirin g, fire - fi g htin g e qu i p ment and

the lifts i nsta ll ed in the b u il d i n g . Even after the receipt of the letter of

c an c e ll ation from the a ppe lla nts , the respondents sent a brief and v agu e

re ply letter on 11.12.2019. Though the re ply letter reads that a detailed

reply w ill be sent wi thin 20 da y s , no such detailed reply letter was iss u ed

by the res p ondents .

12. As no detailed r e pl y was received from the res p ondents , the

a p pe ll a n t s have set the law in motion and preferred separate com p laints

7/9
before the Adjudicating Officer on 29.01.2020 which was later

transferred to the Single Member, TNRERA. In a dispute between an

allottee and the promoter the interest of the allottee is paramount. The

Real Estate (Regulation and Development) Act, 2016 has been enacted

with a view to protect the interest of the consumers in the real estate

sector. As per Section 18 of the Act, 2016 if the promoter fails to

complete or is unable to give possession of an apartment, plot or building

in accordance with the terms and agreements for sale, the promoter shall

be liable on demand to the allottees , in case the allottees wishes to

withdraw from the project, without prejudice to any other remedy

available, to return the amount received by him in respect of the

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 the Act, 2 0 1 6 .

13. I n the case on hand the respondents/promoters unable to give

possession as per the construction agreement dated 18.04.2012 even

after the expiry of seven years as of 2019. The failure to hand over

possession for seven years without any reasons by the promoter gave the

appellants/ allottee the right to cancel the booking. Therefore the

appellants are entitled for refund of the amount paid by them with

interest.

14. Coming to the quantum of refund, as per the revised

calculation statement (Ex.A 1 2 ) filed by the appellant in A.No.18/2023

before the TNRERA (Refer Typed set Volume IV page 640 in A.No.18 of

2023) a sum of Rs.1,14,32,198/- inclusive of interest @9% p.a. upto

3 1 . 0 1 . 2 0 2 0 was found due to Vijay Shankar Venugopal, the appellant in

A.No.18/2023. Likewise, as per the revised calculation statement(Ex.A12)

8/9
filed by the appellant in A . N o . 1 9 of 2023 before the TNRERA (Refer Typed

set Volume IV page 626 in A.No.19 of 2023) a sum of Rs.1,18,97,357/­

inclusive of interest @9% p.a. upto 31.01.2020 was found due to

S.K.Balasubramanian the appellant in A.No.19/2023. In both cases the

respondents have not filed their statement of calculation or disputed the

correctness of the statements of calculation filed by the appellants.

Therefore, the respondents are liable to refund the amount as per the

statement of calculations filed and marked as Ex.A 1 2 in both cases.

15. I n the result both the appeals are allowed with the following

directions.

Appeal No. 1 8 of 2023

I n so far as the A . N o . 1 8 of 2023 is concerned, we hereby direct the

respondents to pay a sum of R s . 1 , 1 4 , 3 2 , 1 9 8 / - (inclusive of interest at 9%

upto 31.01.2020) to Vijay Shankar Venugopal the appellant in

A. N o . 1 8 / 2 0 2 3 w i t h future interest at 9% to be calculated on the principal

amount from 0 1 . 0 2 . 2 0 2 0 till the date of actual refund.

Appeal No. 1 9 of 2023

In so far as the A.No. 19 of 2023 is concerned, we hereby direct

that the respondents to pay a sum of R s . 1 , 1 8 , 97,357/-(inclusive of

interest at 9% upto 3 1 . 0 1 . 2 0 2 0 ) to S.K.Balasubramanian, the appellant in

A. N o . 1 9 /2023 with future interest at 9% to be calculated on the principal

amount from 0 1 . 0 2 . 2 0 2 0 till the date of actual refund.

Sd./- XXXX

CHAIRPERSON

Sd./- xxxx

JUDICIAL MEMBER

9/9