Case law, Tamil Nadu land law
Appeal No.63 of 2023, S.V.Ramesh v. M/s. Emerald Haven Realty Developers (Paraniputhur) Pvt. Ltd.
The Tamil Nadu Real Estate Appellate Tribunal issued Appeal No.63 of 2023, delivered on 11 October 2023, concerning an allottee's challenge to the deduction of a 10 percent cancellation charge by M/s. Emerald Haven Realty Developers (Paraniputhur) Private Limited. The Tribunal found that the allottee chose to withdraw and that the circumstances for a full refund with interest under the Real Estate (Regulation and Development) Act, 2016, did not exist.
What the appeal concerns
Appeal No.63 of 2023 was heard by the Tamil Nadu Real Estate Appellate Tribunal under the Real Estate (Regulation and Development) Act, 2016. S.V. Ramesh appealed against the part of a Tamil Nadu Real Estate Regulatory Authority decision dated 26 April 2023 that refused to refund the cancellation charge deducted by the promoter.
The dispute concerned the TVS Emerald Green Enclave project at Paraniputhur village, Pallavaram Taluk. The allottee initially booked Flat No.B-102, a 4 BHK apartment, and paid Rs.47,08,604 towards the total cost.
Events leading to cancellation
The allottee later agreed to swap Flat No.B-102 for Flat No.D-103, a 2 BHK apartment. The original construction agreement dated 27 January 2020 was mutually cancelled on 19 January 2021, and the amount already paid was to be adjusted against the replacement apartment.
Key facts recorded by the Tamil Nadu Real Estate Appellate Tribunal include:
- No construction agreement was executed for Flat No.D-103.
- The draft agreement did not include covered car parking.
- The allottee claimed that covered parking had previously been promised, but the Tribunal found no proof of that claim.
- The promoter offered other available 2 or 2.5 BHK units, or continuation with the original 4 BHK apartment.
- The allottee nevertheless chose to withdraw from the project.
Refund and cancellation charge findings
The promoter deducted Rs.10,37,427 as a 10 percent cancellation charge and Rs.11,40,376 as GST, then refunded Rs.25,30,801. The Tamil Nadu Real Estate Regulatory Authority directed refund of the GST amount but rejected the claim for refund of the cancellation charge.
The Tamil Nadu Real Estate Appellate Tribunal found that the promoter was not responsible for the allottee's decision to withdraw. It also found that the agreed possession date had not expired and that the promoter had not discontinued its development business. On that reasoning, the statutory circumstances for directing a full refund with interest were not present.
The supplied text ends before the final operative direction disposing of Appeal No.63 of 2023.
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Common questions
Was the allottee given a full refund of Rs.47,08,604?
No. The promoter refunded Rs.25,30,801 after deducting the cancellation charge and GST. The Tamil Nadu Real Estate Regulatory Authority directed refund of the GST amount, but rejected the claim for refund of the cancellation charge.
Why did the Tribunal say a full refund with interest was not available?
The agreed possession date had not expired, and the promoter had not discontinued its development business. The Tribunal therefore found that the circumstances identified in Section 18(1)(a) of the Real Estate (Regulation and Development) Act, 2016, did not exist.
Did the Tribunal accept that covered car parking had been promised?
No. The allottee claimed that the promoter had promised covered car parking for the replacement 2 BHK apartment, but the Tribunal found no proof supporting that claim.
Does Appeal No.63 of 2023 decide every voluntary flat cancellation in Tamil Nadu?
The supplied text decides a dispute based on its particular agreements, communications and reasons for withdrawal. It records that this allottee voluntarily withdrew after being offered alternatives and after being warned about the cancellation charge.
