Appeal No. 78 of 2020, S. Rakesh Kumar v. M/s. Acolyte Infrastructure and Mining Ltd. and another
The Tamil Nadu Real Estate Appellate Tribunal, covering Tamil Nadu, Puducherry, and the Andaman and Nicobar Islands, issued its order in Appeal No. 78 of 2020 on 10 February 2021. The appeal examines whether S. Rakesh Kumar could use the Real Estate (Regulation and Development) Act, 2016 for a dispute arising from a 2008 agreement to buy an already constructed flat, after the Tamil Nadu Real Estate Regulatory Authority dismissed his complaint as not maintainable. The supplied text records the Tribunal's reasoning but ends before the final operative decision.
What the case concerns
Appeal No. 78 of 2020 before the Tamil Nadu Real Estate Appellate Tribunal concerns a proposed purchase of Flat No. 1 on the first floor of Sri Sai Complex, formerly Raj Kamal Estate. The appellant was S. Rakesh Kumar. The respondents were M/s. Acolyte Infrastructure and Mining Ltd., formerly M/s. Nanco Rubber and Plastics Ltd., and M/s. Alcove Industries Ltd.
The Tribunal considered whether the buyer could invoke the Real Estate (Regulation and Development) Act, 2016, and whether the Tamil Nadu Real Estate Regulatory Authority was wrong to dismiss his complaint as not maintainable.
Property and payment dispute
The sale agreement dated 28 December 2008 described the flat as having:
- 1,377 sq. ft. of built-up area.
- 384 sq. ft. of garden area.
- 575 sq. ft. undivided share in the land.
- A total sale price of Rs.36,47,800.
- An advance payment of Rs.6 lakh.
The buyer claimed that inspection and later measurement by a registered valuer and chartered engineer showed only 1,141 sq. ft. of built-up area. He asked the promoters to reduce the price proportionately. The promoters refused and, through a legal notice dated 19 July 2010, cancelled the agreement and forfeited the advance for non-payment of the balance price.
Proceedings and arguments
S. Rakesh Kumar filed a complaint with the Tamil Nadu Real Estate Regulatory Authority on 28 September 2018. He sought to prevent the property from being sold or rented to another person and requested a price reduction for the claimed shortfall of 236 sq. ft.
The promoters argued that the agreement concerned an already constructed flat, not a flat to be constructed. They said the buyer's remedy was a civil claim for specific performance rather than a complaint under the Real Estate (Regulation and Development) Act, 2016.
Tribunal's recorded reasoning
The Tamil Nadu Real Estate Appellate Tribunal recorded that the promoters had clearly refused performance through their notice dated 16 August 2010. It stated that a claim for specific performance had to be brought within three years from the fixed performance date or the date of refusal, as applicable.
The Tribunal also noted that the buyer approached the police in 2013 and 2015 but did not file a civil suit, even after the police advised him that the dispute was civil. The supplied extract ends while discussing whether the claim was barred, so it does not provide the Tribunal's final operative ruling.
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Common questions
Did the Tribunal decide that the flat was smaller than stated in the agreement?
The order records the buyer's evidence that a registered valuer and chartered engineer measured the built-up area as 1,141 sq. ft. instead of 1,377 sq. ft. The supplied text does not include a final determination accepting or rejecting that measurement.
Why did the Tamil Nadu Real Estate Regulatory Authority dismiss the buyer's complaint?
The complaint was dismissed as not maintainable. The promoters argued that the agreement was for an already constructed flat and that the appropriate remedy was a civil claim for specific performance.
What happened to the buyer's Rs.6 lakh advance?
The promoters issued a legal notice dated 19 July 2010 cancelling the agreement and forfeiting the Rs.6 lakh advance because the balance sale price had not been paid.
Does the supplied text show whether the appeal was allowed or dismissed?
No. The supplied extract ends during the Tribunal's limitation analysis and does not contain the final operative decision.
