Real Estate (Regulation and Development) Act, 2016 (RERA):
A recently promulgated legislation, RERA seeks tocurb the shortcomingsof respective Ownership Acts prevailing in each state. A centre enacted legislation, RERA seeks to provide uniform laws throughout the states, for protecting the interest of home buyers and seeks to increase transparency in functioning of construction companies and reduce the chances of default or misappropriation of funds by Builders.
RERA provides for establishment of following authorities/Tribunals:
1.Real Estate Regulation Authority (“RERA Authority”) in each state;
2.Real Estate Appellate Tribunal in each state.
It seeks to provide for establishment of authorities/tribunals for providing mechanisms to flat purchasers/home buyers for expeditious Redressal of complaints under the Act.
It basically and broadly provides for remedy for following breaches/contraventions by Promoter/Real Estate Agent:
1.Inviting/Offering for sale etc. without registration of project by Promoter/Developer;
2.Acting as agent or inducing/facilitating purchase by Home Buyer without registration as Real Estate agent or project being registered with Real Estate Authorities;
3.Any unfair practice being adopted by Promoter/Developer/Real Estate Agent;
4.Violation of terms and conditions by Promoter/Developer subject to which approval granted by Competent Authority;
5.Adoption of fraudulent practice by Promoter/Developer;
6.Violation of any provisions of the Act/Rules/Regulation.
Consumer Protection Act, 1986 (CPA):
CPA enacted to provide speedy Redressal mechanism to”CONSUMERS”under the CPA by establishments of Forums at District, State and National level. CPA only applies in case of CONSUMER alleges Unfair Trade Practice or Deficiency with respect to Goods or Services. Each of the terms are well and broadly defined under the Act. The home buyers were also included within the purview of the Act by interpreting the word “Services” under the Act to include construction, since construction is also a service.Otherwise transactions in Immovable Properties are outside the ambit of CPA since they are not goods within the meaning of the Act. Hence transaction relating to sale /exchange of Immovable Properties, specific performance of the same, claim for damages for non-performance of agreement of sale is outside the purview of CPA since Immovable Properties are not “goods” within the meaning of the CPA.
Insolvency and Bankruptcy Code, 2016 (IBC):
IBC was one of the most successful piece of legislation promulgated by the Parliament to provide a uniform code for Insolvency Resolution of all persons whether Individual, Partnership Firm or Corporate entity. It contains different chapters for Insolvency of different types of persons. For Corporate Entities it provides for Corporate Insolvency Resolution Process (CIRP)for 6 months to provide an opportunity to revive the Corporate Entity if Financial Creditors of the Company by requisite majority so agree by approving Resolution Plan and to prevent further erosion of capitaland if possible to appreciate the capital of the Company.If CIRP fails, the Company goes into liquidation and liquidation in done in the manner provided in the IBC.
By virtue of recent amendment in August 2018, the Allottees of project are considered and are deemed to be Financial Creditors within the meaning of the Act. Hence they are entitled to maintain Insolvency Application and in case of admission of Insolvency Application by other Creditors, Financial or Operational, are entitled to participate and vote in meeting of Committee of Creditors that is constituted.
Comparing Remedy Under Rera Vs Cpa Vs Ibc On Certain Parameters From Home Buyers Perspective:
|Time||RERA has been formed recently and it takes on an average couple of years for Redressal of Grievances.||It takes about 5-6 Years for Redressal of Grievance or adjudication of dispute by Consumer Forum.||It takes about 6 Months for adjudication of Insolvency Application and to admit the same by Adjudicating Authority.|
|Who can file||A Purchaser/Home Buyer or prospective purchaser/Home Buyer offered flat can file Complaint irrespective of the fact that such person is Corporate Entity or Individual.||A Consumer i.e. a person who satisfies the requirement under Section 2(d) of CPA can file complaint. Thereby only a person, typically Individual who enters into agreement for purchase of Flat can file complaint when he purchases the same for his individual use and residence.||Since by recent amendment in August 2018, the Allottee of Project is considered a Financial Creditor,any person whether an Individual or Corporate Entity can file an Insolvency Application under Section 7 of IBC. Also allottee who is competent to file Application in my view can be both purchaser under Redevelopment or existing tenant/owner/occupant of Flat/Apartment.|
|Application/Complaint to be filed before whom||Complaint is to be filed before Real Estate Regulatory Authority established in each state by respective State government where the project is situated.||Complaint is to be filed before Consumer Forum having territorial and pecuniary Jurisdiction to hear Complaint.||Insolvency Application is to be filed before Adjudicating Authority i.e.
a)National Company Law Tribunal having territorial jurisdiction over the place where registered office of Corporate entity is situated in case of Corporate Entities;
b)Debt Recovery Tribunal in the territorial jurisdiction of which individual resides, carries on business or personally works for gain.
|Appellate Structure under the Act.||Real Estate Regulatory Authority;
B.Real Estate Appellate Tribunal;
*A writ petition under Article 226 & 227 can be preferred in exceptional circumstances against the decisions of the Forums.
|a.National Company Law Tribunal;
b.National Company Law Appellate Tribunal;
*A writ petition under Article 226 & 227 can be preferred in exceptional circumstance’s against the decisions of the Company Law Tribunals.
|Accessibility||There are typically as of now, one or two Real Estate Regulatory Authority offices in each state which has constituted the Authority under the Act.||District Forums are established in every district of the State. Furthermore State Commission presides in capital of each state and sometimes has benches in other parts of the State. National Commission presides at Delhi and has circuit benches in various parts of the Country which are rotating.||NCLT is typically constituted for each state andpresides at one place in the state or one NCLT is commonly empowered and is having jurisdiction over two states.|
|Execution/Reliefs provided||Real Estate Regulatory Authority typically exercise its power by way of an order to impose fine, deregister the project, include the promoter in list of defaulters, direct completion of project in manner provided in consultation with State Government and pass appropriate orders incidental thereto.
*Since Home Buyers are particularly interested in completion and handing over possession of their flats, RERA Authority provides for stages wise utilisation of moneys paid by them and a separate account to be maintained for the purpose. In case of default to complete project or other non-compliances, RERA provides for various measures to complete the project and empowers the authority for the same for that home buyers are not kept in lurch. Also it tries to penalise builders by aforesaid measures so that they are prevented and discouraged from undertaking further projects when they do not have requisite resources.
|The Consumer Forum has the power to execute its own orders. This makes execution of orders also an expeditious affair in comparison to regular suits or execution of orders passed by various Courts/Quasi-Judicial Forums. Also since scope of Consumer Act is limited, the relief and consequently is execution is comparatively an expeditious affair.||Once, NCLT admits the Insolvency Application,IRP comes into the picture to manage the affairs of the Company and in case of failure of Corporate Insolvency Resolution Process (“CIRP”) (In case of Developer being a Corporate Entity), Liquidation would be commenced. NCLT monitors the entire process and time to time, various reports are required to be filed with NCLT.In other cases liquidation would be commenced by DRT.|
Analysis Of Provisions Relating To Granting Of Reliefs Under The Acts:
A.*By virtue of provisions of Proviso to Section 71(1)of RERA it is explicitly clear that a person can avail one of the two remedies, either file Complaint with RERA Authority or before appropriate Consumer Forum. This is due to the fact that in both the remedies one is seeking or can seek recovery of money along with interest, compensation and costs. It proceeds on principle of constitution under Article 20(2)of Indian Constitution provides for equitable principle “that nobody can be prosecuted and punished for the same offence twice or more times”.
B.However where different reliefs are to be sought from RERA Authority and Consumer Forum, different complaint in both the institutions is maintainable. However only two remedies which RERA can provide, apart from slightly more expeditious disposal of cases which the consumer forums are not competent are:-
i.Power to issue directions for completion of project in consultation with State Government by appointment of suitable agency;
ii.Power to include Builder/Developer in the list of defaulter and/or to prohibit it from undertaking new projects.
C.However Section 71(1) read with 72(2) of RERA makes it abundantly clear that the bar is only in respect of remedies that can be commonly obtained under both the Authorities. Hence one it always at liberty to approach RERA or Consumer Forum for remedies not availed from before in other Forum.
D.Also proviso to Section 17(2) of RERA provides for handing over possession within 30 days of obtaining occupancy certificate and execution of conveyance within 3 months of obtaining occupancy certificate. However it does not provide for deemed conveyance unlike Maharashtra Ownership of Flats Act, 1963. In RERA provisions of Section 17 read with Section 34 and Section 38 in my view, one cannot seek relief as to directions to be issued to Developer/Builder for complying with conditions for granting Occupation Certificate and obtaining grant of the same. Even in case of failure of Developer/Builder to hand over possession or grant conveyance,the RERA can only impose monetary penalty and relief in the nature of monetary interest. This is in my view due to the fact also that RERA is an “Authority” formed for limited purpose. A statute cannot be interpreted so liberally so confer power on an authority which the Act does not explicitly provide.RERA in my view is administrative authority, having regard to the scheme of the Act, though it may perform quasi-judicial or quasi legislative functions incidentally. However most decisions of RERA are administrative decisions for enabling it to carrying out its functions as administrative authority under the Act.
E.However Consumer Forums have the power to grant reliefs in the nature of directions to the Developer to provide Occupation Certificate, handover possession and grant Conveyance in favour of ultimate entity formed of flat/apartment purchasers. Since Section 14(1)(e) of CPA provides for power of Consumer Forum to issue directions “to remove the effects or deficiencies in the services in question, the word”removal of deficiency in service” would also include power to grant reliefs as aforesaid as stated previously, since construction is also “Service” within the meaning of CPA.
F.However since Home Buyer/Flat Purchaser are deemed to Financial Creditors under IBC, they can file an Insolvency Application under section 7 of IBC. However an interesting question would arise as to when would there be “Default”on the part of Developer. One has to always keep in mind that construction activity or Real Estate Projects are complex in nature, hence a holistic and equitable view of the transaction has to be taken. A number of transactions and agreements are entered into between Developer, Flat Purchaser, Owner and/or Planning Authorities. Every delay in possession than delivery date or non-observance of agreement or statutory possession cannot be construed harshly against the Developer. On admission of Insolvency Application, in case against Developer being a Company,moratorium would come into force for a period of 6 months which would lead to stay of all proceedings before every court. However same does not apply to criminal proceedings and writ proceedings as held by Hon’ble NCLAT in case of Canara Bank vs Deccan Chronicles Holdings Limited.
G.A company or corporate entity would sought to be revived in case eligible person submits a Resolution Plan and the same is approved by requisite majority of Creditors in the Committee of Creditors. On failure of the same the Company would go in liquidation. Hence after company goes under liquidation, the assets/liabilities would be liquidated in the manner provided in IBC. Flat Purchasers would have priority in discharge of its debts over other creditors and would also have a charge on the property/flat allotted to them at whatever stage of construction it might be under. In case of builder/developer being Individual or partnership firm, then same would straight away go in liquidation.
H.However, if builder is complying with provisions of RERA as to separate bank account opened for money received with respect to flat under construction, and has been unable to complete construction due to financial paucity or any other reason, he will be financial creditor only with respect to interest on amount paid from date of default till completing project or till RERA taking action to complete the project if flat purchaser does not choose to terminate the agreement.
I.However if flat purchaser chooses to terminate the agreement, then he becomes Financial Credit To the extent of payments made to Developer plus interest due from the date of default. DATE OF DEFAULT in my view would be of critical importance and it should be date on which there has been failure on part of builder to provide possession as per the agreement or date for completion of project disclosed to RERA,whichever is earlier. Default can also mean valid termination of agreement as per clauses of the binding agreement or under the provisions of any Act and DATE OF DEFAULT would mean the date from which termination is effective.
J.Insolvency Would be optional remedy, which would be only feasible if company does not have sound financial position and the same is deteriorating. As to the Applicant would have better prospects at recovering his money along with interest. It will be fruitful remedy when the Applicant only seeks to recover money invested along with interest predominantly.
K.If the Developer has sound financial position and flat purchaser seeks to obtain specific performance as to completion of the project,then filing an Insolvency Application may not be feasible option.
L.If flat purchaser is Consumer, Consumer Forum would be a great alternative remedy to obtain specific performance. However if flat purchaser is not competent to obtain relief under CPA, then Civil Courts are the only remedy he has for specific performance and compensation etc.
M.Also RERA is more effective remedy when the project is purely development project or there are large numbers of sale flats which have been sold. This is because in a pure Redevelopment Project, there are less number of tenements available for Developer to be sold and hence less moneys raised and kept in a separate escrow account to be utilized for the purpose of completion of project. Also if more number of charges or mortgages are created on the sale component , then the matter would be only more complex as banks/FI would also put forth their claim on the moneys in the Escrow Account.
Conclusion Of Above Observations And Analysis:-
a.If person is a consumer and seeks performance of statutory obligation or compensation in respect thereof, then Consumer Forum is a better and effective remedy especially in case where Developer has financial ability to pay. Also he may file a complaint with RERA to blacklist Developer and other reliefs which RERA can provide but consumer forum cannot.
b.If a person is not a consumer,then RERA would be more appropriate remedy.
c.If a person is not a consumer and seeks specific performance of statutory obligations from Developer, his only remedy would be to file a regular suit. However, for compensation and other reliefs he may approach RERA.
d.If Person, whether consumer or not, is seeking only return of his money, especially when Developers financial position is deteriorating, then Insolvency Application before NCLT would be appropriate remedy more so when its redevelopment of property that does not involve many flat in sale component.
e.Also them ore the project is closer to the verge of completion, RERA would be a more effective remedy especially if Flat Purchaser/Home Buyer desires to obtain a Flat and vice-versa coupled with the consideration that RERA can also provide compensatory reliefs.
f.Insolvency can always be availed as an alternative remedy when a Flat Purchaser feels that financial position of Developer is deteriorating and Developer will not be able to complete the project and return the money with interest to be able to prevent further deterioration. It will help to obtain recovery of maximum amount of money invested along with Interest.Completion of project may take several years due to various practical difficulties that may arise in the completion of project. Also execution of order for payment of money will not have any fruitful result if Developer does not have financial ability to pay it.
g.In terms of execution, Insolvency since being process to liquidate the assets of entity or person will be a more lucrative remedy in case there is high probability that Developer may not be in position to return the money invested.Consumer Forum since having power to enforce their own orders also provide great remedy in case where builder has completed construction but delayed possession or not complied with statutory obligation to obtain reliefs in respect of both.
h.The Flat Purchaser/Home Buyer can always initiate criminal proceedings against Developer against fraud or other criminal offences or acts committed by it.