Real estate project registration and refund rights under RERA: ongoing projects need registration, and excess advance cannot defeat refund claims.

An ongoing real estate project without a completion certificate remains subject to mandatory registration under the Real Estate (Regulation and Development) Act, 2016, and the promoter must register it. The Act also bars a promoter from accepting more than 10% of the apartment cost as advance before a written agreement for sale; a promoter who breaches that prohibition cannot use its own default to defeat the allottee's refund remedy with interest. The refund claim lies before the Regulatory Authority, while compensation depends on the statutory conditions and was not available where the allottee withdrew from the project.

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Issues: (i) Whether an ongoing real estate project, in respect of which completion certificate has not been issued, is liable to registration under the Real Estate (Regulation and Development) Act, 2016; (ii) whether a promoter who received more than 10% of the sale consideration without executing the agreement for sale can deny the allottee the benefit of the proviso to Section 11(5) and resist refund of the advance amount with interest.

Issue (i): Whether an ongoing real estate project, in respect of which completion certificate has not been issued, is liable to registration under the Real Estate (Regulation and Development) Act, 2016.

Analysis: The statutory scheme of Chapter II makes registration of real estate projects mandatory. Projects commenced before the Act but still ongoing, and for which completion certificate has not been issued, fall within the fold of the Act. The directions already issued in the common order on the registration issue were consistent with the settled position that the Act applies retroactively to ongoing projects while preserving completed projects and vested rights.

Conclusion: The ongoing project was held liable to registration under the Act, and the promoter was directed to register the project.

Issue (ii): Whether a promoter who received more than 10% of the sale consideration without executing the agreement for sale can deny the allottee the benefit of the proviso to Section 11(5) and resist refund of the advance amount with interest.

Analysis: Section 13(1) prohibits acceptance of more than 10% of the cost of the apartment as advance before execution of a written agreement for sale. Section 18 and Section 19(4) operate where the promoter fails to complete the project or deliver possession in accordance with the agreement, while unilateral withdrawal by the allottee does not by itself generate a claim for compensation. However, the promoter's own violation in taking excess advance without executing the agreement could not be used to defeat the allottee's remedy. The authority, not the adjudicating officer, was held to be the proper forum to examine the refund claim with interest, and compensation was declined because the allottee had withdrawn from the project.

Conclusion: The promoter could not rely on its own breach to deny the allottee a refund claim before the Regulatory Authority, but no compensation was payable.

Final Conclusion: The common order was modified, and the Kerala Real Estate Regulatory Authority was directed to reconsider the complaint for refund of the advance amount with interest and pass fresh orders in accordance with law. The dismissal of the compensation-related relief remained undisturbed.

Ratio Decidendi: A promoter who violates the statutory prohibition against receiving more than 10% of the sale consideration before execution of the agreement for sale cannot defeat the allottee's refund remedy by relying on that very default; refund claims with interest lie within the Regulatory Authority's jurisdiction, while compensation is confined to the statutory conditions governing such relief.

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