Appeal No. 36 of 2021
The Tamil Nadu Real Estate Appellate Tribunal, covering Tamil Nadu, Puducherry and the Andaman and Nicobar Islands, issued Appeal No. 36 of 2021 on 19 January 2022 in the dispute between M/s. Akshaya Private Limited and home buyer N. Dinesh. The appeal reviews an Adjudicating Officer's direction requiring the promoter to refund the buyer's payment with interest and litigation costs, focusing on the construction agreement, resale of the apartment and limitation. The supplied text ends during the limitation discussion and does not contain the Tribunal's final decision.
What the appeal concerns
Appeal No. 36 of 2021 before the Tamil Nadu Real Estate Appellate Tribunal concerns the promoter's challenge to an Adjudicating Officer's order dated 23 March 2020. M/s. Akshaya Private Limited promoted the residential project called Today, launched in November 2012 with 1,612 apartments in four blocks. Home buyer N. Dinesh entered into sale and construction agreements on 5 February 2013 for an apartment in E Block.
The agreed total sale consideration was Rs.19,58,450. The home buyer paid Rs.3,91,690 as booking advance but made no further stage payments. The promoter sent reminders, issued a cancellation notice and cancelled the allotment in July 2014.
Earlier direction under challenge
The Adjudicating Officer partly allowed the home buyer's complaint and directed the promoter to:
- Refund Rs.4,16,690.
- Pay interest at 10.05%.
- Pay Rs.25,000 as litigation costs.
- Pay no compensation for mental agony.
The promoter appealed, arguing that the agreement predated the Real Estate (Regulation and Development) Act, 2016 and the Tamil Nadu Real Estate (Regulation and Development) Rules, 2017. The promoter relied on the provision stating that agreements entered into before the rules commenced would not be affected.
Agreement terms and resale
The construction agreement required payments on the due dates and allowed cancellation after 15 days' notice for payment default. On cancellation, it provided for refund without interest after deducting 10% of the construction cost as liquidated damages and expenses incurred in disposing of the apartment. Refund was to follow identification of another purchaser and receipt of that purchaser's sale consideration.
The promoter admitted that the apartment was reallocated to another buyer in February 2015. The Tribunal noted that the promoter had not refunded the home buyer even after that reallocation. The home buyer filed the complaint on 23 July 2019.
Questions considered
Appeal No. 36 of 2021 identifies two questions:
- Whether the home buyer's claim was barred by limitation.
- Whether the promoter's appeal should be allowed.
The supplied extract ends while discussing the three year limitation period for compensation for breach of contract. It does not show how the Tribunal finally answered either question.
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Common questions
Does the extract show whether the promoter won the appeal?
No. The supplied text ends during the Tribunal's discussion of limitation and does not include the final ruling.
How much had the home buyer paid?
The home buyer paid Rs.3,91,690 as booking advance. The account statement also recorded a Rs.25,000 referral bonus.
What did the construction agreement say about refund after cancellation?
It provided for refund without interest after deducting 10% of the construction cost as liquidated damages and disposal expenses. Refund was to be made after another purchaser was found and that purchaser's sale consideration was received.
Had the apartment been allotted to another buyer?
Yes. The promoter admitted that the apartment was reallocated to Mr. Kushal Sengupta in February 2015.
