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.