FINANCIAL BEARING ON THE PROMOTER – SEPARATE BANK ACCOUNT – RERA

The Real Estate (Regulation and Development) Act, 2016 (the Act) came into absolute implementation on 1st May 2017. This act provides for the promotion and development of the real estate sector which is pertinent as it plays a vital role in fulfilling the needs and demand for housing and infrastructure and acts as an important pillar of the economy, society, and environment. Before the implementation of the Act, this sector was highly unregulated with the absence of professionalism, standardization and lack of adequate consumer protection, its health, orderly growth, and development was highly hampered. The implementation of the Act was to fill the previously existing shortcomings. The Act brought about many changes, one such major change was to ensure transparency by the registration of the ongoing projects. Another change in this respect was the radical change from having escrow account to a separate account, as required by Section 4(2)(l)(D) of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as “the Act”) with has a direct link to the transparency of the sector and the financial bearing on the promoter. According to Section 4(2)(l)(D)of the Act, the promoter is required to submit a declaration along with an affidavit stating that seventy percent. of the amounts realized for the real estate project from the allottees, from time to time, shall be deposited in a separate account to be maintained in a scheduled bank to cover the cost of construction and the land cost and shall be used only for that purpose. The amount withdrawal to cover the cost of the project can be in proportion to the percentage of completion of the project but only after the same has been certified by an engineer, an architect, and a chartered accountant in practice. In order to keep a check on the financial statements of the promoter, the proviso to Section 4(2)(l)(D) requires the auditing by a chartered accountant in practice to be carried within 6 months of every financial year. Such a statement should be signed and verified during the audit that the amounts collected for a particular project have been utilized for the project and the withdrawal has been in compliance with the proportion to the percentage of completion of the project. It is pertinent to note that the abovementioned “schedule bank” means a bank included in the Second Scheduled to the Reserve Bank of India Act, 1934. These banks comprise Scheduled Commercial Banks and Scheduled Co-operative Banks

Scheduled Commercial Banks in India are categorized into five different groups according to their ownership and/or nature of the operation. These bank groups are – State Bank of India and its Associates, Nationalised Banks, Regional Rural Banks, Foreign Banks, and Other Indian Scheduled Commercial Banks (in the private sector).

Scheduled Co-operative Banks consist of Scheduled State Co-operative Banks and Scheduled Urban Co-operative Banks.

Some may argue that this shift from an escrow account to a separate account is against the promoter. However, that cannot be said to be so. The transparency of the sector is a much vital aspect to be considered and since the amounts from the separate accounts (promoter’s current account in a scheduled bank ) can only be realized on the authority’s permission, it creates a better regulatory. On the other hand, an Escrow Account is under the supervision of a third party meaning the bank and the account holder (the builder) enter into an agreement and appoints a trustee for the account, essentially a bank or a recognized lender. In real estate projects, the banks themselves would be the trustees. These trustees or escrow account manager acts as a signing authority who would release the funds as per the terms and conditions of the agreement. The main Objective and Intention of this provision was to ensure that there is no temporization of the project. As in the absence of trustees, the element of misuse of funds might arise. As the promoter might use the collected funds of one project into business expansion or construction of another project. So in order to ensure that money collected from the Allottees for the Specific project should be vested in that particular project and also to avoid any diversion/diversification of funds, this provision comes into existence.

DISCREPANCY IN WITHDRAWAL

Section 4(2)(l)(D) of the Act provides that the funds from the RERA Account must be used only to cover the construction cost and the cost of acquiring land for that project. This provision[1] states that the funds from the RERA Account shall be withdrawn by the promoter after it is certified by an architect, an engineer and a chartered accountant in practice, that the withdrawal is in proportion to the percentage of completion of the project.(“Proportionality Clause“)’, However, this is a bit complicated as there are no set guidelines under the RERA as to the manner in which the percentage of the completion of the construction of the project is to be calculated. Hence, the proportionality clause is not the criteria to calculate the proportion. Since land is a pre-requisite element for any development activity, the promoter would have to deploy the funds for

1. Acquiring the land

2. Incur costs for commencement of construction of the project and

  • Carry out the pre-development works on the land, wherever required.

Funds in procuring land take a major portion of the estimated costs but the proportion of development of project completed merely by procuring land is minimal. Hence, a discrepancy arises with respect to this proportionality. This provision creates a liquidity crisis for the small and medium-sized promoters because of the lack of substantial amount of money to start the project in the beginning. They are also restricted by the Act from creating any mortgage, charge, or encumbrance over the land, thereby making the promoters drown in the liquidity crises. This discrepancy has been solved by some states. Maharashtra vide circular no. 7 of 2017 dated July 4, 2017, and MahaRERA circular for Union Territories of Dadra and Nagar Haveli and Daman and Diu circular no. 10/2017 dated Aug 4, 2017, and Gujrat RERA circular No. 2/2017 dated July 29, 2017, required a practicing Chartered Accountant to certify the withdrawal amounts while considering the actual costs in procuring land. The proportion of work when multiplied with the estimated cost gives the maximum amount of withdrawal. Because of such a calculated amount, it helps the liquidity crises of the promoters, especially the small and medium-sized promoters.  

REAL ESTATE PROJECT (MAINTENANCE OF SEPARATE BANK ACCOUNT) DIRECTIONS 2020[2] : 

The web-based system of RERA provides for maintaining the account details by the promoter. The authority has been receiving complaints from the allottee that in some cases the promoters have not declared the separate project account on the website and that in some cases the same bank account has been given in more than one project which is a violation of the provisions of the Act. It was further noted that the promoters are not following the procedure laid down for the withdrawal and utilization of the money from the separate bank account. It has also come to the notice of the Authority that the promoters, in contravention of the provisions of the Act, are allowing the lien to be placed on the Separate Bank Account of the project by the Bank. The objective of implementing provision for a separate bank account was to stop the diversion of funds, however, it is not being adhered to. States are taking proactive measures to counter the situation. For instance, the Uttar Pradesh RERA by virtue of Section 34(f) and (g) and Section 37of the Act issued the following regulations on 5/06/2020-

Opening of account-

  • A promoter will open a separate bank account for every real estate project before applying for its registration. There shall be only one Separate Bank Account for a real estate project which shal1 be a no-lien account. If there are more than one promoter in the project, necessary contractual or legal arrangements for operating the account shall be made by the principal promoter.
  • The Promoter, while applying for the registration of the project with RERA, shall submit an affidavit as per the format given in form RA-1, along with a Copy of the Passbook / Bank Statement of the Account.
  • In case of ongoing projects, the promoter needs to submit an affidavit as per form RA-2, along with the latest copy of the Passbook /Statement of the bank account and latest copies of the Form-REG-2 (Engineer Certificate), Form-REG-3 (CA Certificate) and Form-REG-4 (Architect Certificate) submitted to the Bank. All the promoters, who have not complied with this requirement, shall submit the certificates as mentioned above within 3o days of these directions.

Deposits in Account

  • All the money collected from the allottees from time to time, after deducting the sum of GST, shall be deposited in this account. The Promoter shall deposit a hundred percent of project finance availed from any financial/lending institution and shall utilize the seventy percent of that amount construction and development work only. The remaining thirty percent can be used otherwise and can be transferred to other accounts. The project finance amount deposited in this account shall not be taken into consideration while withdrawing up to thirty percent of the amount.

Withdrawal from Account

  • Withdrawal will only be made as per section 4(I)(D) of the Act, rule 5 of the U.P. RERA Rules 2016, ‘ including the payment- of interest from Bank, FI, NBFC. The interest on the unsecured loan shall be permissible at SBI-MCLR Rate for any project where finance availed towards the construction of the project.
  • The promoter shall have the three certificates as given in Regulation 3 of the UTTAR PRADESH REAL ESTATE REGULATORY AUTHORITY (GENERAL) REGULATIONS, 2019 – certificates by the engineer, the chartered accountant, and the architect wilt be as per the Forms REG-2, REG-3, and REG-4 respectively of the Regulations.

 Reporting to the Authority

The annual report on the statement of accounts shall be in Form REG-5 as provided under regulation 4 of U.P. RERA Regulations. If the Form REG-5 issued by the statutory auditor reveals that any certificate issued by the project architect, engineer or the chartered accountant has false or incorrect information and the amounts collected for a particular project have not been utilized for the project and the withdrawal has not been commensurate with the proportion to the percentage of completion of the project, the Authority, in addition to taking penal actions as, contemplated in the Act and the Rules, shall also take up the matter with the concerned regulatory body of the said professionals i.e. architect, engineer or chartered accountant, for necessary penal action against them, including dismemberment.

 Changing the Separate Bank Account of the project

The account cannot be changed under normal conditions. The authority may consider the change in the separate account of the project under the following circumstances:

  • The promoter has not declared such an account at the time of registration of the project with the Authority.
  • One bank account pertains to more than one project.
  • The existing bank account is a general collection account and not a separate account of the project as clarified in these directions.
  • The bank account is with a bank located outside the district where the project is located. For ease of operation, the promoters may be allowed to retain the accounts of the ongoing projects located in NCR in banks located in Delhi and NCR.
  • The promoter is availing a project finance loan for the construction of the project from another bank and such other bank insists for the opening of the project account with it. However, such other banks can not be allowed to have any type of lien or charge on the project account and in case it is discovered at any stage that the promoter has violated these provisions, it will be liable to a penalty up to five percent of the cost of the project. Further, the Authority may also revoke the registration of the project as provided under section 7 of the Act.
  • The Reserve Bank of India has placed restrictions on the operation of the bank account at a particular bank.
  • Any other reason not foreseen in these directions but deemed sufficient by the Authority.

It is pertinent to note that these conditions are not exhaustive and may be extended at the discretion of the authority. Furthermore, the documents required to be submitted are –  form RA-1, RA-3, R A- 4, RA- 5, RA-6, Account Statement, and annual audit report.

Powers of the Authority on the separate Account of the Project

  • The Authority, upon revocation of the registration of the project, shall direct the bank holding the project bank account, to freeze the account and thereafter take such further necessary actions, including consequent de-freezing of the said account, towards facilitating the remaining development works in accordance with the provisions of section 8 of the Act.
  • In the discharge of its functions under section 34 of the Act and rule 9 of the U.P. RERA Rules, the authority may verify/audit from time to time the separate bank account, along with any other account(s) in which the money from the allottees of the project has been collected appropriated, the cost of which shall be borne by the promoter.  Noncompliance of these directions by the promoter in any manner will be punishable under section 63 of the Act with a penalty which may be up to five percent of the cost of the project.

Closure of the separate account on completion of the Project

  • Upon completion of the project as per the sanctioned design and the specifications, the promoter will submit the following documents on the website of the Authority: Completion Certificate, Proof of formation of Association of allottees, Certificate of the Architect in Form RA-7, Certificate in Form-REG-2 and Form-REG-3, Proof of the promoter having executed a registered conveyance deed, Declaration supported by a notarized affidavit in the format prescribed in Form RA-8.
  • If satisfied, the Authority will issue formal permission to the promoter to close the separate account of the project and withdraw the balance amount, if any. However, the promoter will not be absolved of any responsibilities undischarged by him and not disclosed by it to the Authority at the time of the application for closure of the separate bank account of the project.

JUDICIAL AND QUASI JUDICIAL INTERPRETATIONS: 

Neelkamal Realtors Suburban Private Limited and another v Union of India and others Bombay High Court, 6 December 2017, 2017 Indlaw MUM 1891 The honorable court observed that the reason behind framing this provision is to protect the consumers and allottees interest. The amount collected from allottees by the promoters often gets diverted as promoters siphon funds collected for one project onto another, this leads to delay in completion of the project. So to ensure that funds are properly utilized and there is timely completion of the project, this provision comes into existence. The deposit made by the promoter can be duly withdrawn upon certification and under the instructions of the authority. Such unethical practice is curbed under RERA Scheme, wherein one is bound to deposit a 70% amount collected from allottees for the proposed project in RERA Account. This legislation is enacted keeping in mind the interest of allottee and consumer in large therefore it is not an arbitrary provision. Also, the court stated that the provision of section 4(2)(l)(c) affirms that only  70% of the amount has to deposit in a separate  account, which means that rest 30% shall remain with promoter/ developer which is a benefit given to the promoter, hence this provision balances the rights of both the parties. 

Greenopolis Welfare Association vs. Orris Infrastructure Ltd. and Ors. (23.01.2019 – RERA Haryana) : MANU/RR/0540/2019 It has been stated by the complainant that details of the total money collected have not been disclosed by the developers and separate bank account in accordance with applicable statute has not been opened and operated by the developers. It has also been alleged that the receivables from the project have been misappropriated elsewhere by the developers. The authority held that it is committed to ensuring that the purchasers are not cheated/defrauded and the hard-earned money of the purchasers is not misappropriated. It was held that the rights of allottees in the project need to be protected by ensuring that project receivables to be received by the promoters from their customers, as well as amounts received from the sale of unsold inventory, are only used/utilized for construction/implementation/completion of the said project and for payment of statutory dues and for no other purpose.

An allegation of siphoning off funds can be fought by the bona fide conduct of the developer-  in Narender Singh Mann and Ors. vs. Astrum Value Homes Pvt. Ltd. and Ors. (17.10.2018 – RERA Haryana) : MANU/RR/0096/2018

Keeping in view the larger interest of the allottees, the Authority has taken a view that since the funds collected from the allottees doe not appear to have been siphoned away by the respondents and they are willing to follow the directions of the Authority to complete the project, the refund of the money paid by the complainants in this situation is not justified. The Authority had asked the respondents to open an ‘Escrow Account’ in which they should contribute an amount of Rs. 20 crores from their own resources and invest that money only on completion of the project.

[1] http://legislative.gov.in/sites/default/files/A2016-16_0.pdf section 4(2)(l)(D)

[2] https://up-rera.in/pdf/File090620.PDF

*****

This piece of research is purely based on the knowledge and expertise of the author. The author of this article, Harshit Batra is an Advocate and RERA Consultant, practicing Pan India. To bring about his expertise on Rera; He is the *Former Legal Executive of the Real Estate Regulatory Authority – Gurugram Bench. His practice concerns majorly: RERA, Arbitration, Consumer protection, NCLT, and Criminal laws. He is also the National Coordinator of the Youth Bar Association of India (Regd.) For further queries on the subject, he can be contacted at: harshit.batra7@gmail.com

©️ Copyright. All rights reserved. No part of this work may be reproduced or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Author/Publisher.

Tags:

Author Bio

Qualification: LL.B / Advocate
Company: Self Practice
Location: Delhi , New Delhi, IN
Member Since: 16 Mar 2020 | Total Posts: 1
I am an Advocate enrolled with the Delhi High Court Bar Association. I have also worked as the Legal Executive in Haryana Real Estate Regulatory Authority(Gurugram Bench). My practice concerns majorly 4 fields: RERA, Arbitration, Criminal and Women laws. I hold a LL.M in Alternate Dispute Resolutio View Full Profile

More Under Corporate Law

One Comment

Leave a Comment

Your email address will not be published. Required fields are marked *

Search Posts by Date

October 2020
M T W T F S S
 1234
567891011
12131415161718
19202122232425
262728293031