MahaREAT: An act of the partner is binding on the partnership firm.

By Fiona Mehta

 

In the matter of Mr. Jervis Anthony Creado and Mrs. Rose Jervis Anthony Creado vs. Aishwarya Light Construction Company (Appeal No. AT006000000052415), this appeal emanates from the order dated 24th December, 2019 passed by MahaRERA whereby the learned Authority had not granted reliefs of interest / compensation under section 18 of the RERA as sought by appellants in their complaint.

 

Facts of the case: The complainants have booked a flat No. 504, on 5th floor, ‘A’
wing ad measuring 466 sq. ft. along with one open parking space in the project ‘Aishwarya Heights’ of the respondent situated at Andheri, Mumbai for a consideration of Rs. 80,00,000/-. The respondent had issued allotment letter dated 27th February 2017 to the allottees. The allottees have paid entire consideration to the developer.

On 27th February, 2017 the respondent has executed unregistered agreement for sale with the CC006000000141152 filed by the appellants whereby, the complainants and agreed to handover possession of the subject flat to complainants by December, 2017. The developer neither registered agreement for sale nor handed over possession of suit flat to complainants therefore the complainants filed complaint and sought directions to developer.

The developer appeared in the complaint and disputed the claim of complainants contending in his reply that the alleged agreement for sale does not confer any right to the complainants as it was an arrangement between them and therefore the same has not been registered.

It is worthy to note that though the agreement for sale was undated but the facts remains that one of the partners of the respondent has agreed to handover the possession of the subject flat to allottees by December, 2017. An act of the partner is binding on the partnership firm.

 

What options does Section 18 of RERA Act gives you? Section 18 gives an option to the allottees either to continue with the project by claiming interest on delayed period of possession or to withdraw from the project and to claim refund of entire amount along with interest including compensation. In the instant case allottees have chosen the first option. It clearly shows that the allottees are interested in getting possession of the flat as they have already paid substantial amount out of the total price of the flat to the promoter.

 

Order: The impugned order shows that the learned authority has denied relief of interest on account of delayed possession only for the reason that there is no registered agreement for sale executed between the parties showing any agreed date of possession. However, the material produced on record and the impugned order clearly indicate that one of the partners of respondent executed undated agreement for sale with the complainants.

Moreover, the respondent has also not disputed the factum of execution of undated agreement for sale by its partner. Therefore, we are of the view that the allottees are entitled to interest on their investments from January, 2018. Therefore, the appeal is allowed by the MahaREAT.

MahaRERA: Failure of completion of a flat project will lead to money refunded plus interest to buyers

RERA

RERABy Fiona Mehta

 

In the matter of Mr. Vikas Gupta and Neena Gupta v. M/s. Wheelabrator Alloy Castings Ltd and M/s. Runwal Real Estates Pvt. Ltd (CC006000000197002) under the MahaRERA Authority on 17th January 2022, the complainants had filed this complaint seeking directions  from MahaRERA to the respondent to refund the amount with interest and  handover possession under the provisions of section 18 of the Real Estate  (Regulation & Development) Act, 2016 in  respect of the booking of a flat in the  respondent’s registered project known as “Runwal Forests Tower 5-8” in Mumbai.

During the hearing on September 2, 2021, the respondents were fined Rs. 10,000/- for failing to file their replies on MahaRERA’s record. The respondents, on the other hand, filed a review application to have the order set aside, which the MahaRERA granted after hearing the parties on October 5, 2021.

 

Facts:

The complainants had reserved the aforementioned flat in the project registered by the landowner, respondent No. 1, for which a letter of allotment dated 18th October 2015 was properly issued to the complainants upon payment of the booking price of Rs. 59,91,565/-. Respondent No. 1 specified August 2019 as the date of possession in the stated assignment letter. Following that, on August 19, 2016, an agreement for sale was signed and registered, and the date of possession was altered to February 2020. The complainants alleged that they had paid a significant portion of the compensation.

Furthermore, the proposed completion date for Tower 8 has been pushed back several times till October 31, 2021. The complainants were then informed, via an e-mail dated 8th April 2021, that the project was completed up to 40 levels. The complainants then asked to be removed from the project. Furthermore, work on the flat sold to the complainants under the agreement for sale has yet to begin. As a result, the complainants are seeking a return of the monies spent to date, plus interest, as well as amounts paid for Stamp Duty and Registration, GST, VAT, Service Tax, and other taxes.

The MahaRERA has reviewed both parties’ submissions as well as the public record. The complainants, who are allottees of this project, have approached MahaRERA with this complaint, requesting a refund as well as interest for the delayed possession under section 18 of the RERA. The complainants further claimed that section 12 of the RERA had been also violated.

The respondent promoter refuted the complainants’ claim by filing written representations on record with MahaRERA, claiming that the delay in this project was caused by the competent authorities issuing Stop Work Notices due to a lack of Naval NOC, and that this was beyond its control. In light of the Hon’ble Punjab and Haryana High Court’s decision in the case of Janta Land Developers, the respondent has also rejected the complainants’ claims by raising the question of MahaRERA’s single bench’s jurisdiction to decide this complaint on its own.

 

Judgement/Held:

Given the facts and circumstances of this matter, the MahaRERA believes there is substance to the grounds for delay provided by the respondent, and that the delay was beyond the respondent’s control. As a result, the respondent is entitled to request MahaRERA’s assistance in completing this project. However, the respondent has now committed to finish the project and hand over control of the property to the complainants by acquiring the occupancy certificate on or before June 30, 2022.

Given these facts, the present complaint is dismissed with a directive to the respondent promoter to complete the project, obtain an occupancy certificate, and hand over possession of the said flat to the complainant on or before June 30, 2022, failing which, the complainants’ money will be refunded, plus interest, at the rate of SBI’s Highest Marginal Cost of Funds Based Lending Rate (MCLR) plus 2%, as prescribed under the provisions of the SBI Act.

MAHAREAT: Obtaining OC/completion of construction at any time will not render the Section 18 inapplicable

By Fiona Mehta

In light of the Hon’ble High Court’s judgement dated 15th April 2020, the promoter has filed Miscellaneous Application (M.A.) 108 of 2020 to collect the outstanding sum owed by the Appellants, plus interest. It is also requested that the aforementioned Application be considered concurrently with the appeal under review (AT006000000010885).

 

Facts of the case: Appellants (hereinafter referred to as Allottees) claim to have originally booked the flat on September/October, 2009 in the project of Respondent known as Indiabulls Greens-1, at Panvel, District Raigad. According to Allottees, promoter promised to give possession within a period of 3 years i.e. October, 2012. subsequently registered agreement for sale dated 20 August 2011 was executed by the parties as per clause 9 of which possession was agreed to be given within 60 months with grace period of 9 months and with entitlement to further reasonable extension in period of possession subject to mitigating events listed under the said clause claiming inter alia that Allottees have paid 100% amount as per demands raised by promoter and alleging further that amenities and facilities as promised in brochure/advertisements etc., as obtained from Times of India were not provided in the almost completed project in 2012,Allottees filed complaint with the Authority seeking inter alia possession of the flat and interest for delay in possession.

In the complaint hearing, the Promoter contested the grounds presented by the Allottees and sought the Authority to issue an order to give over possession by December 2018 as specified in a prior complaint in the same project. The promoter further argued that because the occupancy certificate (OC) was obtained prior to the filing of the lawsuit and possession had already been offered to Allottees in accordance with it, the provisions of section 18 for interest payment would not apply. The promoter also stated that it will not charge for services or amenities that will not be available when possession is handed over.

After examining the parties’ views, the Authority concluded in the impugned order dated 24 October 2018 that Section 18 would not apply after the project was completed or possession was delivered, and declined to award interest to Allottees for the delay in possession. As a result, the Authority recommended Allottees to take possession with instructions to the promoter not to charge for any amenities/ facilities that were not delivered at the time of possession until such time as they were. The stated order is being contested by Allottees in this appeal.

Following the foregoing order, Allottees desperately sought to make the amount asked by Promoter under protest for taking possession, as evidenced by comments made by Allottees via multiple emails. It appears that Promoter declined to accept the offer and did not hand over possession until the Hon’ble Bombay High Court ordered it to be handed over in the second appeal filed by Promoter, vide order dated 09th January 2020, subject to keeping all contentions of the parties open with regard to claims of both parties regarding outstanding amount. This application is being submitted in accordance with the above-mentioned instructions.

 

Order: The Tribunal has repeatedly concluded that getting OC/construction completion at any moment does not make Section 18 inapplicable. If an OC is obtained after the parties have agreed on a date, such an OC, as is the situation in this case, cannot negate the effect of the provisions of Section 18. As a result, if OC is not obtained and/or ownership is not transferred before the agreed-upon date, the provisions of Section 18 will be invoked, making Allottees entitled to the reliefs granted thereunder. As a result, the contested order, which is contradictory to the law, deserves to be set aside and requires intervention.

Promoter/Respondent is directed to pay Allottees interest on the total amount excluding stamp duty and registration charges, if any, within 30 days from the date of this order, w.e.f. 21st May 2017 until the date of handing over possession, at 2% above the highest SBI MCLR prevailing on the date of the impugned order.

Bombay High Court: ordered the builder to deposit 100% of the interest due to flat buyers

By Fiona Mehta

 

As a condition of hearing its appeal, the Bombay high court upheld an order of the RERA (Real Estate Regulation and Development Act) appellate tribunal (MAHAREAT) directing a builder to deposit 100% of the interest due to buyers for delays in handing over flats at a project called Wintergreen in Borivali in May 2022.

However, the HC, accepts an undertaking by the builder, CCI Projects Pvt Ltd, and gave it 5 months to deposit over Rs 19 crore before the Tribunal, of which Rs 5.5 crore is to be paid in 4 weeks.

The developer said it will deposit Rs 33 lakh, or 30% of the Rs 1.1 crore ‘penalty’ due to flat buyers, in 4 weeks. It will also provide more than Rs 10 lakh to expenses as directed. In their May 6 judgement, Justices Revati Mohite Dere and Madhav Jamdar stated that failure to fulfil deadlines will result in the rejection of any pending appeal before the panel.

CCI Projects’ counsels had challenged the tribunal’s orders under the RERA Act requiring it to deposit a 100 percent deposit “without recording any reasons.” According to the counsels, Section 43 (5) of the RERA Act provides the tribunal power to request a deposit of at least 30% of the amount, and “the appellate tribunal has directed deposit of considerably lesser amount in numerous other situations.”

The HC also heard from Central government’s counsel and the apartment buyers’ attorney where they pointed out that the Act only requires a minimum 30% deposit of the imposed ‘penalty,’ not any additional amounts. She stated that a pre-deposit of the total sum is mandatory before an appeal is considered.

The project is finished, according to the builder’s counsel, and the flats have been handed over to the buyers. According to him, the MahaRERA order is merely for compensation for delays, and hence, flat buyers’ concerns should have been dismissed.

 

Flat buyers filed 173 complaints, of which 69 have been resolved, 83 are awaiting hearing before the Authority, and 19 are awaiting conciliation. There were 112 appeals before the tribunal, 42 of which were settled, and 53 of which were granted a pre-deposit order.

The builder’s counsel then requested further time, claiming that the builder is willing to make the deposit in five months and has agreed to pay the interest deposit in five months, as well as not to create third-party rights in four shops at Arcade, Rivali Park in Borivali, valued at around Rs 12 crore.

The HC ordered that if the builder and flat buyers do not reach a settlement within five months, the builder is free to seek a revision of the ruling.

Section 43(5) of the Act envisages the filing of an appeal before the appellate tribunal against the order of an authority or the adjudicating officer by any person aggrieved and where the promoter intends to appeal against an order of authority or adjudicating officer against imposition of penalty, the promoter has to deposit at least 30 per cent of the penalty amount or such higher amount as may be directed by the appellate tribunal.

If the appeal is against any other order involving the return of funds to the allottee, the promoter must deposit with the appellate tribunal the total amount to be paid to the allottee, including any interest and compensation owed to him, if any, or both, as the case may be, before the appeal is filed.

Supreme Court: Homebuyers can move RERA Authority against Bank’s Recovery Actions

RERA

RERABy Fiona Mehta

 

The Supreme Court of India, vide its order dated 14th February, 2022, in the matter of Union Bank of India vs. Rajasthan Real Estate Regulatory Authority & Ors. while upholding the order dated 14th December 2021 of the Hon’ble High Court of Rajasthan, inter-alia held that the RERA Authority.

The RERA Authority read with the rules and regulations made thereunder (“RERA Act”) has the jurisdiction to entertain a complaint filed by an aggrieved person against the bank as a secured creditor in the event the bank takes recourse to any of the provisions contained in Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“SARFAESI Act”) provided that the proceedings filed before the RERA Authority have been initiated by the homer buyers to protect their rights.

 

Background: In a recent writ petition, the division bench of the Hon’ble Rajasthan High Court issued a landmark decision protecting home-buyers’ rights and interests by ruling that secured creditors such as financial institutions and banks fall under the jurisdiction of the RERA Authority, and that home-buyers can file a complaint with the RERA against such secured creditors.

The High Court further held that:

(i) The Real Estate Regulatory Act, 2016 (“RERA Act”) operates retrospectively only in the cases where the security interest is created because of fraud or collusion between banks/financial institutions and developers;

(ii) The RERA Act would prevail over the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“SARFAESI Act”) in case of a conflict between the two; and

(iii) The RERA has jurisdiction to entertain complaints against secured creditors like banks/financial institutions once they take recourse under Section 13(4) of the SARFAESI Act to enforce their security interest. The High Court judgment has already been discussed in our previous update which can be accessed.

 

Supreme Court Judgement: The Hon’ble Supreme Court, in its order dated 14th February 2022, resolved one of the outstanding legal questions by concluding that Banking Institutions can be made parties before the RERA Authority and are subject to the RERA Authority’s jurisdiction.

While upholding the Rajasthan RERA authority’s landmark decision, the Hon’ble High Court further ruled that the RERA act will take precedence over the Bank’s recovery actions under the SARFAESI Act. This order of the Hon’ble Supreme Court established that the rights of Allottees are fundamental, and their interests are prioritized over the rights of banking institutions.

In light of the aforementioned judgments, a bank or financial institution taking recourse under Section 13(4) of the SARFAESI Act in response to a developer’s default in payments would be deemed to be a promoter in relation to the secured asset for the purposes of the RERA Act, allowing Allottees to file RERA Act complaints against such bank or financial institution.

Delhi High Court: Real Estate Appellate Tribunal does not have suo motu powers.

By Fiona Mehta

 

In the matter of Praveen Chhabra v. Real Estate Appellate Tribunal (2022) under the High Court of New Delhi, the Court quashed the suo motu proceedings initiated by the Appellate Tribunal to monitor construction activity in the National Capital Territory.

The court held that under the Real Estate (Regulation and Development) Act, 2016 (RERA), the jurisdiction of the Appellate Tribunal stands confined to consideration of challenges raised against orders passed by either the Real Estate Regulatory Authority or the Adjudicating Authority under the RERA.

In this matter, the Appellate Tribunal had filed suo moto proceedings in the national capital against a number of residential and commercial projects, as well as construction activities associated with them, and had issued restriction orders against them. Additionally, it had passed an order stating that all construction activity, residential or commercial, would be stayed till the project is registered under RERA Act.

Aggrieved by the same, Praveen Chhabra, the builder developer approached the High Court after he was informed that the plans he had submitted could not be approved in light of the Appellate Tribunal order. The Appellate Tribunal neglected to consider the scope of the Act, according to the Court.

According to Sections 43 and 44 of the RERA Act, which provide for the establishment of tribunals and the definition of what disputes can be brought before such tribunals, the Appellate Tribunal was established as a forum whose jurisdiction could be invoked by a person aggrieved by an order, decision, or direction of the Authority.

The High Court also said that the Appellate Tribunal being a creation of statute, is not part of traditional judicial institutions.

The Court, therefore, quashed the order staying the construction of projects until they are registered under with the RERA authority.

“The Court also takes into consideration the significant portent of the direction issued. It has practically injuncted all construction activity in the NCT of Delhi. The aforesaid injunction is not shown to have been preceded by any enquiry with respect to the validity of a particular project or even a prima facie assessment or evaluation of the validity of a single project,” the Court observed while quashing the order.

The judge, however, clarified that he was not interfering with the Authority’s right to independently examine individual projects under the RERA Act.

Therefore, the Real Estate Appellate Tribunal does not have powers to initiate cases suo motu, the Delhi High Court recently held while setting aside such proceedings initiated by the tribunal to monitor construction activity in the National Capital Territory.

MahaREAT rejects application for amendment of MahaRERA order when the applicant is late for application.

By Fiona Mehta

 

In the matter of Shridhar Krishna Mani & Another vs. Lucina Land Developers Limited (AT006000000010885), Appellants are seeking amendment in Prayer Clause of Memorandum of Appeal by contending that Respondent obtained part occupation certificate without completing pending works (‘amenities’) promised in the brochure and offered possession of the flat to Appellants. Therefore, in the complaint, Appellant had sought specific direction from the Authority to Respondent to complete pending works.

As a result, the Appellants requested similar direction in the prayer clause (a) in this case. Respondent, on the other hand, made it apparent in written representations that it would/could not supply the amenities promised at the time of the flat’s sale. Respondent’s final plan plainly shows that no space is left for community amenities, notwithstanding Respondent’s assurance in the brochure.

In such circumstances, Appellants considering permanent losses made specific submissions in written argument. Therefore, it is just and necessary to consider the prayer clause (g) in Appeal and Appellants be allowed to amend the prayers.

On the one hand, Appellant’s Advocate claims that Respondent has broken Section 12 of the Act by failing to provide the amenities and facilities promised in the brochure and ads published in the major publications. Appellants are seeking compensation from Respondent under the proposed amendment for failing to provide amenities as indicated in the brochure and marketing. The proposed revision will not alter the nature of the reliefs, which are consistent with the Appellants’ pleadings.

On the other hand, Respondent’s Advocate states that a bare perusal of the Application for Amendment would show that it is not an Amendment Application. There is no reference of schedule of the amendment in the application.

Learned Advocate has drawn attention to paragraphs 3, 4, 7(j), 7(p), 7(nn), 7(ss), 7(ww), and 7(aaa) of Respondent’s affidavit in reply dated 9th February 2019 and poignantly submitted that Respondent has specifically mentioned in the affidavit-in-reply that Respondent has provided amenities to Appellants, as agreed in the agreement for sale. It means that Respondent’s affidavit-in-reply fabricated Appellants’ claim that Appellants learned for the first time from Respondent’s written representations that Respondent will not provide amenities as depicted in the brochure. Furthermore, the appellants failed to use their entitlement at an earlier stage and instead submitted the current application after the case was closed for judgement.

Final order: After analyzing the parties’ competing arguments and the totality of the facts and circumstances of the case, it can be concluded that, for the new cause of action that has emerged, Appellants can raise this issue before the proper venue in line with the RERA 2016. As a result, the Application for Amendment of the Appeal Memo is not only late, but it would also alter the essence and character of the Appeal. As a result, the considered opinion that the Application lacks merit and is liable to be rejected.

MahaREAT: Allottees are entitled to claim refund with interest and withdraw from the project when Promoters failed to handover possession with OC.

By Fiona Mehta

 

In the matter of Mr. Suryakant Yahswant Jadhav and Suryakant Jadhav HUF vs. Bellissimo Hi-Rise Builders Pvt. Ltd. And others. (Appeal No. AT006000000021407 and AT006000000021408) before the MahaREAT, where both the parties have executed and registered agreements for sale separately for two flats on 17th May, 2014 and on 16th May, 2014, Promoters agreed to handover possession of the flats on or before 28th February, 2017. Allottees have paid about 95 to 96% of price of each of the flats. Promoters failed to handover possession of the flats as per agreed date. Project was incomplete on 1st May, 2017 i.e., the date on which the RERA came into force, promoters registered the project under RERA.

Therefore, Allottees decided to withdraw from the project and demanded refund with interest and compensation as per Section 18 of RERA. Promoters did not pay any heed. Allottees filed separate complaints (Complaint No. CC006000000056404 and Complaint No. CC006000000056405) for each flat before MahaRERA.

MahaRERA conducted enquiry and heard Allottees and Promoters. MahaRERA disposed of both the Complaints by common order dated 6th March, 2019 and held that Section 18 of RERA does not apply to the present dispute. MahaRERA advised Allottees to take possession of their respective flats which is ready for occupation. Aggravated by this, the Allottees have fled two separate appeals challenging the order.

According to the Allottees Counsel, allottees have the right to make a compensation claim with the Adjudicating Officer under RERA Sections 71 and 72. The impugned order is not legally enforceable for the reasons outlined above. As a result, Allottees are entitled to a refund plus interest because the Promoters failed to deliver possession of the flats on the agreed-upon date in the sale agreements.

In view of above submissions, it is submitted by Allottees that for the reasons of delay in possession along with failure to provide amenities as promised and failure to provide flats as booked. Allottees are entitled to seek refund with interest and compensation and therefore the impugned order is liable to be set-aside.

Order: In view of the delay in possession as observed above, Allottees are entitled to withdraw from the project under Section 18(1) of RERA which the Authority has failed to consider and recognize. It is not possible to accept the observations made by the Authority in para 3 of the impugned order holding that Section 18(1) would not apply once the construction is complete or possession is handed over, as the case may be.

Having regard to the above observations, it is found that Promoters have not been able to hand over possession on the agreed date i.e., 28.02.2018 as per clause 11.1 of the AFS. Therefore, Allottees are entitled to withdraw from the project and consequently eligible for reliefs as provided under Section 18(1) of RERA. In the result, the impugned order cannot be sustained and deserves to be set aside.

Final Order: Appeal No. 4T006000000021407 and Appeal No. 4T006000000021408 are allowed by MahaREAT. Promoters shall refund the amount received from Allottees in respect of both the flats along with interest.

MahaREAT: Acceptance of possession will nullify the complaint.

By Fiona Mehta

 

In the matter of Asha Ashok Katariya vs. M/s Jawala Real Estate Pvt. Ltd. (Appeal No. AT005000000053030), where MahaRERA rejects application for amendment and disposing of the complaint in consequence of rejection of amendment application.

Facts of the matter: Complainant booked a flat in promoter’s project “Lodha Marquise-B” in Lower Parel, Mumbai. Allotment letter was issued in 2013. Later on 28th August 2013, agreement for sale was executed between the parties. According to complainant agreed date of fit out possession was 31st December 2017 and with one year grace period promoter agreed to deliver possession. As possession could not delivered in time, allottee filed complaint before MahaRERA seeking several reliefs such as refund of entire amount with interest under Section 18 of the RERA Act, 2016, compensation for mental agony, and compensation under Section 12 for providing false information.

As possession was offered and accepted during the pendency of complaint, complainant filed an application for amendment seeking change in the relief of refund as for possession and interest on delayed possession. Authority rejected the application for amendment on the ground that provisions of Code of Civil Procedure can be considered as guidelines and amendment sought is against the settled proposition of law. It was observed that Section 38 of RERA and Regulation 42 of MahaRERA General Regulations 2017 do not permit such amendment.

Second ground on which application came to be rejected is that cause of action does not survive as possession has been taken by complainant and reliefs of refund and possession being contrary to each other cannot be granted in view of settled propositions.

It is an admitted fact that possession was offered by promoter during the pendency of complaint and then accepted by allottee. As can be seen from possession letter dated 28th October 2020 complainant had reserved her right at the time of taking possession and specifically endorsed on possession letter that acceptance of possession was “without prejudice”.

It can be revealed from the record that on 28th October 2020 itself complainant filed an additional affidavit before the Authority mentioning events which transpired leading to possession. On 5th November 2020 she moved an application for amendment. It is surprising to note that in the entire order there is no whisper regarding additional affidavit filed by complainant or endorsement “without prejudice” on possession letter. Authority completely ignored the very edifice of amendment application while rejecting the same.

Order: In the case on hand, it can be seen that while passing order on application for amendment, Authority reached to the conclusion that in view of rejection of amendment application cause of action does not survive and disposed of the complaint. It clearly demonstrates that complainant was not given an opportunity of hearing before disposing of complaint. This in our view amounts to violation of principles of natural justice as contemplated under Section 38(2) of the Act of 2016 thereby rendering the impugned order unsustainable in law.

MahaRERA holds Society liable in the event of the erstwhile promoter not able to finish project

RERA

RERABy Fiona Mehta

In the 5 separate complainants (Complaint Nos. CC006000000056539, CC006000000197465, CC006000000198655, CC006000000199126 and Cco06000000199135) were clubbed together seeking various reliefs from MahaRERA against the respondents promoters under the provisions of sections 7,13,18 of the Real Estate (Regulation & Development) Act, 2016 (hereinafter referred to as RERA) with respect of the booking of their respective flats in the respondent’s registered project known as “Samaj Darshan” at Borivali, Mumbai.

Facts of the complaints: The complainants at sr. nos. 1, 2, 3, and 5 are project allottees who have purchased their respective units from the promoter’s former allottees by completing registered agreements for sale. The complainants have primarily claimed that they purchased their units from the former promoter by signing a documented agreement for sale.

However, a conflict arose between the former promoter and the owner in 2017, prompting the owner to file a complaint with the Hon’ble High Court of Judicature in Bombay under section 9 of the Arbitration and Conciliation Act. Accordingly, the owner has appointed new promoter as promoter of this project and the MahaRERA has also confirmed the said appointment. Hence, the complainants have approached MahaRERA seeking various reliefs under the provisions of section 18 of the RERA.

The project was shifted to another promoter by MahaRERA without informing the former promoter and without taking into account the interests of all associated parties, according to the former promoter. It is responsible for around half of the project’s construction activity. The MahaRERA registering authority transferred the project to M/s. H Rishabhraj without safeguarding the rights of any stakeholders, including the complainant in this case. There will be a breach of natural justice if the current stakeholders’ rights are not protected. It will also have to face a significant personal loss.

Order: The MahaRERA has observed that the new promoter appointed by the owner trust pursuant to the order dated 26-11-2020 passed by the Hon’ble High Court of Judicature at Bombay in Commercial Division Notice of Motion No. 99 of 2020 in Commercial Arbitration Petition No. 147 of 2018 along with Commercial Arbitration Application No. 54 of 2018 in Commercial Arbitration Petition No. 147 of 2018. The complainants are simply asking for the MahaRERA registration given to the respondents under section 7 of the RERA to be revoked. However, after reviewing the records, MahaRERA discovered that on January 21, 2022, the Hon’ble Chairperson of MahaRERA issued an order in Suo-Motu Case No. 215 of 2022.

In view of the aforesaid subsequent order passed by the Hon’ble Chairperson, MahaRERA the claim of the complainants for revocation of the MahaRERA registration cannot be considered since, the said project is revived, and the project validity period is extended till 30-04-2023.Hence, the main relief sought by the said complaints stands rejected.

In terms of the additional reliefs sought by the complainants under section 13 of the RERA, the MahaRERA has prima facie determined that there are six complainants claiming to be allottees of this project who have filed a common complaint agitating their individual claims under section 13 of the RERA. The complainants have not even supplied copies of the allotment letters payment receipts lawfully issued in their favour in this project to verify their claim under section 13 of the RERA when submitting this complaint.

Final Order: The owner is further directed to pay interest for the delayed possession to the complainants at sr. nos. 2, 3 and 5 from the agreed dates of possession mentioned in the agreements for every month till the actual date of possession with occupancy certificate on the actual amount paid by the complainants towards the consideration of their flats. Thereby, all 5 complaints stand disposed of.

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