Category: RERA

Refund with Interest and not Stamp Duty: MAHA RERA

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By Staff Reporter

In the case of Amit Dattatray Bechhave vs. Vasundhara Constructions Vasundhara Ashok Talware Hemlata Ashok Talware (Complaint No. CC001000000000114), the complainants have filed this complaint seeking directions from MahaRERA to the respondent to refund the entire amount paid by him along with interest and compensation under the provisions of section 18 of the Real Estate (Regulation & Development) Act, 2016 (hereinafter referred to as ‘RERA’) in respect of the booking flat bearing No. A2/02 in the respondent’s registered project known as “Springfield” bearing MahaRERA registration no. P51600011544 located at Nashik.

Facts of the case: It is the case of the complainant that by a registered agreement for sale dated 07-10-2011, he has purchased the said flat in the respondents’ project for total consideration amount of Rs. 23,20,000/-. As per the said agreement for sale, the respondent has promised the date of possession of the said flat to the complainant as December, 2011. However, till date the possession is not handed over to him and even no occupancy certificate is received and till date no title was transferred or conveyance transferred in his name.

Further, the respondents have given wrong information to MahaRERA about possession and about title. Hence the complainant has filed this complaint seeking refund of the money paid by him along with interest from the date of payment, and also refund of the stamp duty and taxes under sections 11, 13, 18 ,19 of the RERA and heavy penalty to be imposed on promoter for violation of section 4 of the RERA for giving wrong information about original possession date.

Being promoter of this project, it was the duty of the respondent to get all requisite permissions from the competent authority and the complainant allottee has nothing to do with the same. Even if the project was getting delayed, then the respondent should have informed the said reasons of delay and should have revised the date of possession mentioned in the said agreement by executing a supplementary agreement. However, no such steps have been taken by the respondent. Moreover, no plausible explanation of alleged delay has been given by the respondent.

Even if the reasons cited by the respondent promoter are taken into consideration as plausible explanation, the respondent promoter is entitled to seek 6 months’ grace period extension in the date of possession which was permissible under the provisions of MOFA in which the present agreement for sale was executed between the parties. Considering the said 6 months’ grace period the date of possession comes to 30-06-2012 from 31-12-2011. Even on that date the project was incomplete, and the possession was not handed over to the complainant.

Likewise, in the present case, since the respondents have failed to handover possession of the flat to the complainants on the agreed date of possession committed in the registered agreement for sale, the complainant is entitled to seek refund under section 18 of the RERA.

Order: In an order dated 16th June 2022, the respondent is directed to refund the entire amount paid by the complainant towards the consideration amount of the said flat along with interest at the rate of SBI’s Highest Marginal Cost of funds based funds based Lending Rate (MCLR) plus 2% as prescribed under the provisions of section-18

of the Real Estate (Regulation and Development) Act, 2016 and the Rules made there under from the date of payment till the actual realization of the said amount.

Needless to state here that the actual amount as provided under section 18 of the RERA means the amount paid by the complainant towards the consideration of the said flat only, excluding the stamp duty, registration charges and taxes etc. paid to the government.

Delayed interest payable even after OC: MAHA RERA

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By Staff Reporter

In the matter of Mr. Aditya Gupta and Suparna vs. Shree Sukhtara Developers Pvt. Ltd (Complaint No. CC006000000195686), the complainants above named have filed this complaint seeking reliefs from MahaRERA to direct the respondent to pay interest for the delayed possession to the complainants under the provisions of section 18 of the Real Estate (Regulation & Development) Act, 2016 (hereinafter referred to as ‘RERA’) in respect of their flat bearing no. 4403, situated on the 44th floor in the respondent’s registered project known as “Ruparel Ariana” bearing MahaRERA registration No. P51900003250 located at Mumbai City. The complainants have also prayed for refund of EMI paid by them till the date of possession.

 

Facts of the Case: The complainants’ claim is that they and the respondent had an agreement for sale dated 4th March 2015 in which the complainants agreed to buy the abovementioned apartment in the registered project of the respondent. The respondent was required to transfer possession within 60 months after the commencement certificate date in accordance with clause 41 of the abovementioned agreement for sale. Further, clause 42 of the aforementioned agreement stated that the promoters would be entitled to a reasonable extension of time for offering possession in the event that the completion of the free sale building in which the said premises are located is delayed due to any notices, orders, rules, notifications, or notifications from the government and or competent authorities.

On the other hand, the respondent has denied the allegations made by the complainants by submitting its response to the record on June 23, 2021, in which it claims that, in accordance with the terms of the sale

agreement, possession was to be granted following the completion of the proposed sale building and upon receipt of the necessary occupation certificate. According to the information provided, the commencement certificate was obtained on April 16, 2015, making the possession date of April 16, 2020, subject to a reasonable extension due to the terms agreed upon under clause 42 of the aforementioned agreement, which grants a reasonable extension of time beyond the possession date specified in clause 41 of the aforementioned agreement and is accepted by the complainants themselves.

The complainants claimed that the respondent failed and neglected to transfer ownership of the specified apartment on the scheduled date of possession, and as a result, they sought interest starting from October 1, 2020, taking into account the extension granted by MahaRERA via circular dated May 18, 2020 due to the covid-19 pandemic until September 30, 2020. The respondent verified the payment of the pre-EMI for the house loan up until the date of possession of the complainants’ property in a letter dated 13- 03-2015, according to the complainants’ further allegation that the said flat was reserved under a subvention plan.

 

Order: Considering these facts and circumstances of this case, since the occupancy certificate has already been obtained for the complainant’s flat, the respondent is directed to handover possession of the said flat to the complainants within a period of 15 days subject to payment of outstanding dues payable by the complainants as per the terms and conditions of the agreement for sale and also by adjusting the pre EMI paid by the complainants as agreed by it in it’s letter dated 23th August 2019.

Society Formation and charges till OC to be paid by the Promoter: MAHA RERA

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By Staff Reporter

In the case of Nilesh Patil & Others vs. Jayant Baburav Bhadange & Baburav Ganpat Bhadange (Complaint No. CC001000000010125),the complainants have filed this complaint seeking directions from MahaRERA to the respondent to pay the outstanding payment of building utility and provide the completion certificate under the provisions of the Real Estate (Regulation & Development) Act, 2016 (hereinafter referred to as ‘RERA’) in respect of the respondent’s registered project of the respondent known as “Vrindavan” bearing MahaRERA registration No. P51600004972 located at Nashik.

Facts of the case: The complainants have filed this complaint mainly raising following 3 main issues i) the completion certificate has not yet been received, ii) the respondents have not paid common area taxes which is issued in the name of the respondent as though it was responsibility of the respondents to pay the same such as electricity bill, water bill, property maintenance charges and

iii) the building has not been handed over to the allottees. Hence, the complainants have prayed for specific direction to the respondents.

The respondent on the other hand has refuted the claim of the complainants by filing written explanation on record of MahaRERA. It has mainly stated that it has obtained the commencement certificate from the Nashik Municipal Corporation on 27-04-2015 and the civil work has been done as per the building plan.

The respondent further stated that, after construction of the flat the complainants and other allottees requested it to give possession of their flats and accordingly considering the difficulties faced by the complainants and other allottees, the possession of the said flats have been given to the complainant. The respondent further stated that, the said fact was intimated to the complainants at the time of handing over the possession of their flats. Further, it has not used the Corporation water and hence, it is not liable to pay the water bill. In view of these facts, the respondent has prayed for dismissal of the complaint.

From the aforesaid submissions made by both the parties, the MahaRERA has noticed that the complainants have already taken possession of their flats in the year 2018 itself and till date the occupancy certificate has not yet been obtained by the respondent promoter. Further, from the webpage information uploaded by the respondent, it appears that though it has uploaded Architect Certificate Form-4, till date the occupancy certificate has not been obtained for this project, it shows that the project is still incomplete. The respondent promoter is under statutory obligation to obtain the occupancy certificate for this project as provided under section 11(4)(b) of the RERA, and till date the respondent has not complied with the said statutory obligation.

The complainants allottees have taken possession of their flats willingly without the statutory compliances being done by the respondent as cast upon it under RERA. Though the complainants allottees have occupied their respective flats in the said project, however, the said possession is not legal possession in the eyes of law. Hence, the MahaRERA is of the view that till the respondent complied with its statutory obligation to obtain OC, it is liable to maintain the said building at its own cost. Needless to state here that after OC, the respondent shall handover the said project to the society, who thereafter shall be liable to maintain the said building.

Order: In an order dated 12th April 2022, the respondent promoter directed to obtain occupancy certificate for this project within a period of 3 months from the date of this order. The respondent promoter shall also take appropriate steps from formation of society as required under section 11(4) (e) of the RERA and handover this project to the said society by obtaining OC. Till the date of obtaining OC, the respondent shall be liable to pay the outgoing charges towards the maintenance of the said building towards the property tax/water bill etc.

MAHA RERA: Refund applicable even after Termination

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By Legal Research Cell

In the case of Mudhit Gupta vs. Glider Buildcon Realtors Private Limited (Complaint No. CC006000000193972), the complainant has filed this complaint seeking direction from MahaRERA to the respondent to refund the entire amount paid by him along with interest under the provisions of section 18 of the Real Estate (Regulation & Development) Act, 2016 (hereinafter referred to as ‘RERA’) in respect of the booking of a flat bearing no. 4205 on 42nd floor in the respondent’s registered project known as “South Tower” bearing      MahaRERA     registration   No.               P51900015854 situated at Mumbai.

Facts of the case: It is the case of the complainant that he submitted a form titled, “Request for Reservation of Residential Unit” (ROR), in respect of the said 2 BHK flat for the total sale consideration of Rs.3,96,75,301/- He sought for the details of registration of the said project repeatedly, but the respondent wilfully failed, neglected and avoided to provide the same.

Appalled by the fact that the (i) details of litigations affecting the said project were not disclosed; (ii) that respondent had not issued allotment letter in format uploaded by it on website of MahaRERA, or otherwise; and (iii) that the respondent had not expressed acceptance the request of the complainant, as made in the said ROR, in spite of having made the entire amount payable at the stage of ROR and the complainant vide his email dated 19/11/2018 called upon the respondent informing it that he is revoking his request and accordingly directed the respondent to refund the amount of Rs.22,21,818/- paid by him to the respondent along with interest thereon with 18% p.a. from date of receipt of said amounts till payment thereof to the complainant.

The complainant has not stated violation of section 12 of the RERA by showing any false notice /advertisement published by the respondent promoter, due to which he suffered from any sort of loss as contemplated under section 12 of the RERA. Hence, the MahaRERA cannot consider the claim of the complainant under section 12 of the RERA. In addition to this, the complainant has not produced any adverse order passed by any apex court imposing stay on the project.

Considering the facts and circumstances of this case, the MahaRERA is of the view that in absence of any agreed date of possession, the claim of refund sought by the complainant under sections 12 and 18 of the RERA cannot be considered. Therefore, if the complainant is seeking cancellation of the said booking the respondent is entitled to take action in accordance with the terms and conditions of the RFR dated 4-06-2018 signed by both the parties. The respondent after raising various demand letters to the complainants has finally cancelled the said booking on 14- 02-2019 and thereby forfeited the entire amount paid by the complainants in accordance with the terms and conditions of RFR.

Order: In an order dated 21st March 2022, in view of the facts and circumstances of this case and in compliance of principles of natural justice, since the complainant has chosen to exit from the project and the termination has already been done by the respondent, in compliance of principles of natural justice, the respondent promoter is directed to refund the amount to the complainant allottees by deducting the 10% of the amount paid by him (i.e. 10% of the Rs.22,21,818/-) towards the administrative charges within a period of 3 months from the date of this order without any interest considering the Covid-19 pandemic.

MahaREAT: earnest money can only be held accountable for the alternative claim of reimbursement

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By Fiona Mehta

This article examines the matter of Samudra Darshan Co vs. Peter Almeida & Ors (AT006000000053403)

 

Facts of the case: The first two appeals’ appellant, a cooperative society, nominated Respondent No. 3 as developer via redevelopment agreement (RDA) dated 08.07.2005 for developing the property under its occupation, according to the appeals’ brief factual matrix. According to the aforementioned agreements, Respondent No. 3 had the right to sell apartments in the selling component only if the rehabilitation of the members was complete. After receiving the required approvals, Respondent No. 3 started building in 2011 and also started selling apartments in the sale component, which would be built in accordance with agreements with the Society. The claim of the allottees is that they paid a total of Rs. 64.50 lacs for the flat number 1103 in wing “C” of the sale component building, against which a sum of Rs. 6,17,550 was given as an earnest money deposit. To that end, it is asserted that Respondent No. 3 also issued an allocation letter dated 11.06.2011.

With time passing, the Society terminated the RDA through a deed of cancellation signed by the Society and Respondent No. 3 on September 16, 2014, as a result of Respondent No. 3 failing to fulfil the obligations it undertook under the said RDA and due to the project of redevelopment being abandoned. As a result, on 21.10.2014, the Society appointed Respondent No. 7 as the new Developer by signing a development agreement. Subsequently, a public notice dated 30.04.2015 was also published in the newspapers for the general public’s awareness.

The new Developer registered the project under RERA once RERA went into effect in May 2017. Following this, the project’s allottees filed a complaint with MahaRERA asking for instructions to the new developer to assign the flat in the building and further instructions to the ex-developer or the new developer to execute a sale agreement with the allottees in accordance with the allotment letter issued to them by the ex developer on June 11, 2011. Alternately, allottees asked the respondents to reimburse them for their payments, plus interest, and pay them compensation of Rs. 50 lacs.

In the current situation, it appears that Society has no contractual relationship with the allottees under the circumstances, and the transaction is solely and exclusively between the allottees and the former developer. Whether or not the development agreement between the Ex-developer and the Society is cancelled, the facts collected in this case are clearly within the ratio of Vaidehi.

Furthermore, it is noted that the new developer was chosen by the society and has not signed a contract with the former developer. As a result, it cannot be held accountable for keeping promises made to allottees by the former developer, contrary to what the authority incorrectly stated, particularly in para. 19 of the original order and as reiterated in the order under review application. As a result, neither the society nor the new Developer that it chose are required to acknowledge the allottees’ claims as requested in the case.

Order: In light of the aforementioned observations, the Society and new Developer cannot be held accountable to allottees due to the lack of privity of contract, and as a result, allottees are not entitled to the relief claimed in the complaint against the Society or new developer. Since a new Developer has already taken over the project in these circumstances, no flats can be made available to project allottees.

Due to this, the ex-Developer who has received the earnest money from the allottees can only be held accountable for the alternative claim of reimbursement made by the allottees, if any. For the aforementioned reason, it would be acceptable to remand the complaint so that the Authority can decide on the refund amount again and identify the previous Developer’s responsibility for it after speaking with the interested parties.

In the above circumstances, we are of the view that impugned order cannot be sustained and the same deserves to be set aside.

DDA has applied for registration of 18 projects before RERA, Delhi

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By Staff Reporter

Delhi Development Authority (DDA) has applied for registration of 18 projects before the Real Estate Regulatory Authority of Delhi since the year 2019. Delhi Regulatory Authority, after processing the applications, conveyed certain deficiencies to DDA. Subsequently, DDA filed Interim Application (IA) raising preliminary objections against the requirement of registration of projects under the Real Estate (Regulation and Development) Act, 2016 [RERA], which was rejected by Regulatory Authority vide order dated 20.12.2021 and directed DDA to cure the deficiencies in their application for registration. DDA has filed an appeal before the Real Estate Appellate Tribunal against the requirement of registration of DDA projects under RERA. So far, no projects of DDA have been registered under RERA.

Section 3 of RERA mandates registration of real estate project by the promoter before any advertisement, marketing, booking, selling or offering for sale, or inviting persons to purchase in any manner. Further, Section 59 of RERA provides for penalty upon promoter in case of non-registration of the real estate project. Data / information related to action taken by the Real Estate Regulatory Authorities of various States / Union Territories against the private sector real estate companies for non-registration of projects under RERA is not maintained centrally.

This information was given by the Minister of State for Housing & Urban Affairs, Shri Kaushal Kishore, in a written reply in the Rajya Sabha

MahaRERA: Pay penalty in 2 months, or amount will double every month

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RERABy Fiona Mehta

 

In a landmark judgment, the MahaRERA ordered a developer to pay a penalty, the violation of which would result in a doubling of the penalty sum each month, for violating a previous decision to reimburse a plot buyer who had invested money 10 years ago.

 

Facts of the case: As per the case, Vishal Raut, 42, an Andheri resident, had invested Rs 4.7 lakh in 2012 in a non-agricultural bungalow plot at M/s Ginger Country Living Private Limited’s Ginger Hill project at Kharade village in Shahapur. As per the agreement, the payment was made for a 1,900-sq ft (approx) hilltop plot for a total consideration of Rs 7 lakh.

“In fact, there has been no construction in that plot barring access roads. Whenever I got in touch with the developer, they would give evasive replies,” he said, adding that later in 2016-17 he got a call from the developer asking him to collect cheques for the refund as they could not develop the project. “Instead of making a full refund with interest, they assured to issue post-dated cheques and asked me to sign a no-due letter in return, but I refused. Thereafter, I moved MahaRERA,” Raut said.

MahaRERA issued an order on November 10, 2020, favouring Raut and directing the developer to execute the registered agreement within a month or face a return of the money. Raut, through counsel Godfrey Pimenta, filed a non-execution application with MahaRERA when the developer failed to carry out the order.

In his ruling, Dr. Vijay Satbir Singh, Member 1 of MahaRERA, noted that M/s Ginger Country Living Pvt Ltd had skipped the hearing and failed to provide any justification for the delay. “It demonstrates that the respondent is not disposed to object to this motion for non-execution. Therefore, the MahaRERA believes that the complainant’s argument for a refund has merit, Dr. Singh said.

“The Respondent is directed to refund the full amount paid by the Complainant towards the consideration of the Said Flat together with interest as prescribed under RERA and the Said Rules made thereunder within a period of 2 months, failing which the Respondent shall be liable to pay penalty of Rs 5,000 per day for every day of default until actual compliance of the said order.

The order stipulated that the fine amount would double every day after each month.

MahaRERA: Registration of at least 21 housing government projects lapses

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By Fiona Mehta

 

Among the more than 4,500 real estate projects that have failed in Maharashtra are these home developments. However, as bookings for government projects do not begin until an occupation certificate is given, not a single homebuyer has been impacted.

Out of which, 21 projects are being developed under the affordable housing scheme of the Maharashtra government as well as the Central government’s flagship Pradhan Mantri Awas Yojana (PMAY) scheme. Cities like Mumbai, Pune, Nagpur, and Aurangabad host the projects. The tier-3 town of Amravati also has a number of abandoned PMAY projects. The projects on the list are those whose registrations expired between 2017 and 2022. (up to March).

The most lapsed government projects are being built in Mumbai, with eight. These initiatives are located close to Borivali, Wadala, Powai, Malad, and Goregaon. Amravati district has six projects, Pune district has three projects, Jalgaon, Aurangabad, Nagpur, and the Kalyan portion of the Mumbai Metropolitan Region (MMR) each have one project.

 

When is a real estate project declared lapsed?

A developer has three to four years, which is seen as a reasonable amount of time, to complete any real estate project that they have registered with MahaRERA. A registration number is given for the project after completion.

However, when the deadline for completion is not fulfilled and the developer does not request an extension, the project is said to have “lapsed.” The developer is prohibited from inviting people to invest in these ventures once the registration of the project is deemed to have “lapsed.” The revenue department’s registrar is unable to register such projects.

 

What the authorities are saying?

Officials claim that no allottees or purchasers are involved in these projects because government organisations only accept reservations once a local authority issues an occupation certificate (OC).

Starting July 25, MahaRERA will issue suo-motu notices to developers of lapsed real estate projects in Maharashtra, most of which are in Pune and Mumbai. Initially, projects where the developer has 50% or more bookings but there is zero work on the ground will get notices.

MahaREAT: Excessive use of jurisdiction by MahaRERA set aside

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By Fiona Mehta

 

In the case of Mr. Girish Shivnani, Mrs. Varsha Girish Shivnani, Mr. Deepak Shivnani, and Mrs. Hanisha Shivnani vs. Century Textiles & Industries Ltd (M/s. Birla Estate Private Limited) (Appeal No. AT006000000053000) dated 27th July 2022, the appeal by the allottees is made in response to the order dated January 14, 2021 that the learned Member of MahaRERA made in complaint no. CC006000000141163 and which instructed the respondent to allow the allottees to inspect a sample flat within two weeks and, in the event that they decided to cancel their reservation, to proceed in accordance with the terms of the duly executed booking application forms.

 

Facts of the case: Complainants booked Flat Nos.1101 and 1102 In respondent’s project “Birla Vanya – Phase I” situated at Kalyan, Thane. Complainants agreed to pay total consideration of Rs.1,09,65,2701- for Flat No.1102 and Rs.t,06,72,3201- for Flat No.1101. The parties exchanged booking agreements on April 3rd, 2019. A deposit of Rs. 4,00,000 was made at the time of booking, claim the complainants. After then, the complainants demanded the cancellation of the reservation and a reimbursement of their payment to the respondent.

As respondent failed to refund the amount, a complaint was filed before MahaRERA, thereby directing respondent to refund booking amount paid by complainants as per the terms and conditions of booking forms issued by respondent.

In accordance with the terms of the booking form, respondent was required by the aforementioned judgement to reimburse the complainants for the booking amount paid. Additionally, the complaint was only for a refund. After that, complainants requested clarification in the aforementioned order via Submitted on September 10, 2020. In their request for explanation, the complainants expressed their displeasure that the respondent had refused to pay them despite the complaint’s order, and given the lengthy delay, they pleaded for clarification and fair resolution of the situation.

In any case, it appears that the complainants have not challenged the aforementioned ruling because they were not permitted to do so, as they cannot be considered to be aggrieved parties with regard to the order dated December 23, 2019.

 

Order: It is observed that complainants have not made out a prima facie case to show that respondent has ever violated the provisions of sections 12 and 18 of the Act of 2016 for which they can seek refund.

Thus, the entire order came to be passed in the excessive use of jurisdiction as if sitting in an appeal and, therefore, in our view, impugned order dated 14th January 2021 is not sustainable in law. In light of the above and since the order is passed in the excessive use of jurisdiction, same deserves to be set aside with a direction to the Authority to decide application dated 10th September 2020 moved by complainants strictly in accordance with law.

 

Advocate for Appellants- Dr. Sanjay Chaturvedi
Advocate for Respondent- Mr. Vikramjit Garewal

MahaRERA: Landowner ordered to takeover a housing project which the builder/developer has abandoned

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By Fiona Mehta

 

In a recent landmark ruling, this is one of six similar orders in MahaRERA’s history under Section 7 of the RERA Act. that have allowed project allottees the freedom to choose how their abandoned project will proceed moving forward.

 

Facts of the case: The project in question, Luxury Empire Township Phases 2 and 3, was registered with MahaRERA in July 2017 under the name Goldstar Realtors, with completion dates of December 2022 and December 2024, respectively, according to the website of MahaRERA. In all, 50 buildings were proposed with MahaRERA. However, 30 buildings are registered with MahaRERA.

During the period of 2011 to 2016, buyers were offered possession of their flats or shops within 48 months of the date of allotment. For apartments and retail spaces sold between 2011 and 2016, Goldstar Realtors received 30% and 60% of the sales price, respectively. On the ground, however, no work was done. In fact, since 2017, the project has been on the verge of being abandoned.

Therefore, under sections 7 and 8 of the RERA Act, it demanded the developer’s registration be cancelled. Additionally, the purchasers complained, arguing that the association should be permitted to finish the project on its own or with a different developer approved by MahaRERA. The homebuyers then submitted consent terms to MahaRERA acknowledging the landowner as the developer.

 

Order: In a ruling dated July 5, 2022, the MahaRERA stated that according to the records, it appears that the project’s promoter has given up on it and hasn’t taken any action to see it through to completion. As a result, on May 28, 2022, MahaRERA received the consent terms signed by the allottees and respondent number 2 (the landowner) and dated May 23, 2022. The landowner has agreed to carry out this project, for which the allottees have given their agreement, under the stipulated consent terms. In light of the foregoing, it is deemed necessary to accept the consent terms provided by the allottees and the landowner in order to protect their interests and guarantee the project’s prompt completion.

It further added, “The MahaRERA further noticed that both the respondents are the promoters as defined under Section 2(zk) of the RERA and they are liable to complete this project. The respondent No.2 has a duty as a promoter to complete the project if the respondent No.1 is unable to do so. The landowner must take all additional necessary steps as required by RERA’s requirements and the applicable Rules adopted thereunder. The landowner must defend and uphold the legitimate rights of the project’s allottees as well as follow any previous MahaRERA orders issued in response to complaints against the project.”

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