NEW DELHI: In an important decision which will allow homebuyers to take charge of their societies even if the project has not been completed, National Company Law Appellate Tribunal (NCLAT) has held that once the Apartment Owners Association gets registered, management of the complex’s common areas and facilities has to be transferred from the promoter to the association.
A bench headed by chairperson of NCLAT Justice Ashok Bhushan said a real estate company has no right to resist handing over of maintenance to the association.
The tribunal passed the order on a plea by the homebuyers’ association of Supernova housing project in Noida, being developed by Supertech Ltd, that management of the complex be handed over to it. The bench directed the company to hand over the charge within seven days.
SC: Obligatory for promoter, apartment owner to form association
Advocate Govind Jee, appearing for the homebuyers, told the tribunal that Supernova apartment owners had formed an association which was registered under Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act and they should be allowed to take over management which was being looked after by a company called YG Estates. The homebuyers approached the tribunal as the project is under insolvency.
Supertech argued that as per law, an association could be formed only when at least 33% of homebuyers had taken possession of their flats. In Supernova’s case, only 27% of the total project has received occupancy certificate from Noida. There are 2,165 units in the project.
The bench, also comprising members Barun Mitra and Arun Baroka, said it was a statutory obligation for the promoter and apartment owners to form an association.
Rejecting the company’s plea that 33% of apartments have to be handed over before an association is formed and that the present association was not a valid one, the tribunal said, “We are of the view that the association having been registered and the registration of association still being valid it is not open for YG Estates to contend that registration of the association is not in accordance with the law. The issue with regard to non-fulfilment of the necessary conditions for registration of the association cannot be allowed to be raised in these proceedings nor can it be examined in these applications. When the association has been registered, it has to be presumed that registration was made after compliance of all necessary requirements.”
As the parties raised questions on clearing the dues, National Company Law Appellate Tribunal directed them to appear before the Interim Resolution Professional and arrive at a settlement.
“We are of the view that in these proceedings, the issues pertaining to outstanding of YG Estates or any amount accepted by YG Estates cannot be gone into or decided. We are of the view that such issues can be raised before the Interim Resolution Process who is overall in-charge of all projects and management. It is for the Interim Resolution Process to take a call and take necessary steps for settlement of accounts between the parties,” it said.
