Complaint No. CC005000000095707


Complaint No. CC005000000095784


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BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY, MUMBAI

1. Complaint No . CC005000000095707
Vikas Uttam Gaikwad


.... Complainant

Versus

M/s Neo Pharma Pvt. Ltd. Authorized Signatory
Mr.Jayant Oswal & Mr. Amit Shah

2. Complaint No. CC005000000095784

Mr Nikhil Nandkumar Sawant
Vrishali Ram Zaware
Mrs Nivedita Nandkumar Savant


.... Complainants

Versus

Neo Pharma Pvt Ltd
Dr Babul Rustamkhan Pathan


.... Respondents


MahaRERA Project Registration No. P52100000869


Coram: Shri. Mahesh Pathak, Hon’ble Member – I/MahaRERA

Ld. Adv. Leena Kaulgekar appeared for the complainants.
Ld. Adv. Suneet Tyagi a/w, Ld. Adv. Krishna Raia appeared for the
respondents.


INTERIM ORDER


(Friday, 08th September, 2023)

(Through Video Conferencing)



Complaint No. CC005000000095707


Complaint No. CC005000000095784


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1. The complainants above named have filed these two separate
complaints before the MahaRERA on 22-07-2021 mainly seeking
directions from MahaRERA to the respondents to pay compensation for
delayed possession; rent, compensation and cost (amended prayer)
under the provisions of the Section 18 of Real Estate (Regulation &
Development) Act, 2016 (hereinafter referred to as ‘RERA’) in respect of
the booking of their respective flats in the respondent’s registered project
known as “Kalpataru Jade Residences F” bearing MahaRERA
registration no. P52100000869 located at Baner, Pune. (Hereinafter
referred to as the” said flats”).

2. Since, these complaints were filed with respect to the same project, they
were clubbed together and heard on several occasions and finally on 10-
05-2023 as per the Standard Operating Procedure dated 12-06-2020
issued by MahaRERA for hearing of complaints through Video
Conferencing. Both the parties have been issued prior intimation of this
hearing and they were also informed to file their written submissions if
any. Accordingly, both the parties appeared for the hearing and made
their submissions. MahaRERA heard the submissions of the parties and
perused the available record.

3. After hearing the arguments of both the parties, the following Roznama
was recorded.
“Both the parties are present. The respondent has raised the issue of
maintainability as mentioned in the previous hearing and the
complainant has filed a reply to the said issue. The respondent has
argued that the agreement for sale was prior to RERA and was signed


Complaint No. CC005000000095707


Complaint No. CC005000000095784


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during the MOFA regime. As per clause 15.7 of the said agreements for
sale, any dispute between the parties was to be referred for arbitration
and therefore the mechanism as well as the person to be appointed as
arbitrator and all the contingencies arising out of this said arrangements
(agreement for sale) have been dealt with as per the said clause.
Therefore, it is the contention of the respondent that nothing else is
applicable in case of ay dispute between the parties and for this, the
respondent is replying on nearly 30 orders issued by the Hon’ble
Chairperson / MahaRERA in the year 2022. The complainants have
pointed out to sections 79 and 89 of the RERA and contended that it bars
the jurisdiction of the Civil Courts and as per the case law specifically
the Newtech

JUDGEMENT

of the Hon’ble Supreme Court of India, the,
RERA provisions have retroactive effect. Further, the complainants have
also argued that once they have exercised the option of filing these
complaints before the MahaRERA, the option of arbitration is
foreclosed. This aspect has also been dealt with, in the case law with
respect to the Consumer Court of the National Consumer Commission
as well as the Hon'ble Supreme Court of India vis a vis the Arbitration
Act and the same logic applies in case of RERA as opposed to
Arbitration Act. The respondent has refuted these contentions of the
complainants and has pointed out that the provisions of sections 79 and
89 are being misinterpreted by the complainants and there is no option
to be exercised as the principle of election is not valid in the present
matter. ln view of the above, both the sides may file their written
arguments within a pe od of two weeks i.e. by 24-05-2023 on the issue of
maintainability as raised by the respondent along with the sur-rejoinder
(if any) of the respondent. These matters are reserved for orders suitably


Complaint No. CC005000000095707


Complaint No. CC005000000095784


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alter 24{5-2023 on the issue of maintainability based on the arguments
made by both the parties today as well as the reply, rejoinder and the
sur-rejoinder (if any) and written arguments filed in these complaints.
The further course of action in the complaint will be decided in these
complaints once such an order is issued.

4. Pursuant to the aforesaid direction, the complainants in complaint at sr
no. 2 have uploaded their rejoinder cum written arguments along with
the case laws on the record of MahaRERA on 23-05-2023. The respondent
promoter has uploaded its written submission along with compilation
of judgments on the record of MahaRERA on 23-05-2023. The said
submissions are accepted and taken on record. However, the
complainant at sr no. 1 has not uploaded any submission on record of
MahaRERA after the last date of hearing held on 10-05-2023. The
MahaRERA has perused the available record.

5. In the present case, the complainants have filed these complaints mainly
seeking rent and compensation on account of delay under the provisions
of the RERA.

6. The respondent promoter viz M/s. Neo Pharma Pvt Ltd (now known as
Astrum Developments Private Limited) has filed an application on
record of MahaRERA on 18-01-2023 (in complaint at sr no. 1) and on 14-
04-2023 (in complaint at sr no.2) raising a preliminary issue of
maintainability of these complaints in view of the arbitration clause
mentioned in the agreements for sale signed by and between the parties.
It has stated that in terms of clause 15.7 of the said agreements, both the


Complaint No. CC005000000095707


Complaint No. CC005000000095784


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parties had mutually agreed that in case of any disputes / issue touching
the said agreement, the parties shall refer the dispute to arbitration as
contemplated under clause 15.7 thereof. The said agreements were
executed prior to the RERA coming into force on 1-05-2017. Further, the
parties thereto had expressly and categorically agreed to a dispute
resolution mechanism in the said agreements itself. Further, it is a settled
law that neither courts nor the RERA can rewrite the terms of existing
contracts nor come up with bargains higher than what has been drawn
up by the parties to the contract themselves. It is also clear that RERA
applies prospectively and not retrospectively. Prior to filling of the
present complaints, the complainants had not adopted the contractually
agreed dispute regulation mechanism and have straightway filed these
captioned complaints. It has further relied upon the

JUDGMENT

of the
Hon’ble Chairperson/MahaRERA, wherein it is held that if the recourse
agreed to in an agreement for sale is arbitration and the agreement for
sale has been executed prior to the promulgation of the RERA then the
parties cannot take recourse to RERA and must go by the dispute
resolution mechanism. It has relied on the

JUDGEMENT

passed in the
matter Ayyaz Khan and Sabu Khan v/s Era Realtors Pvt Ltd decided on
14-01-2022. It has also relied upon the order dated 06-07-2022 in the
matter of Vijay Vasedeo Awalgaonkar vs CCI Projects Pvt. Ltd. and
Order dated 23-08-2022 in the matter of Rajaram Subramianm and Anr
vs CCI Projects Ltd. and 13 connected matters etc. Hence, the respondent
promoter has prayed for dismissal of these complaints being not
maintainable under RERA.



Complaint No. CC005000000095707


Complaint No. CC005000000095784


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7. The complainants have uploaded rejoinder cum written arguments in
stating that the respondent has relied upon the consent letter dated 11-
01-2021 thereby contending that they are bound by the said consent letter
whereby they had agreed to receive the compensation of Rs. 50,000/- per
month from January 2020 and that they would not dispute the revised
date of possession. Further, as per the maxim “contra proferentem”, if
there is an ambiguity in a contract then such term will go in favour of the
party who has drafted the said contract / agreement and in the present
case, the consent letter. The said letter in no way overrides the rights of
the complainants that accrue to them under section 18 of the RERA. The
said consent letter was made in duress by the complainant wherein he
had already paid more than 90% to the respondent and was awaiting
possession. The respondent has itself failed to abide by the terms of the
said consent letter at the relevant period and now they cannot make it
binding on the complainants alone. Therefore, the complainants
rebutted all such contentions made by it. In addition to this, it has
brought on record certain facts pertaining to the entity of respondent
company by virtue of a demerger etc. He was never informed about the
NCLT order or the demerger etc. The respondent cannot absolve itself
from the liability under RERA. The reasons stated for the delay, all these
reasons are part of duties, obligation and responsibilities which a
promoter needs to undertake and execute it and seeking permission is
part of their business for which he cannot be saddled with as force
majeure nor getting the requisite permissions in time absolves the
promoter to deliver the possession in time. The respondent has cited
Covid 19 to which respondent has referred to the requisite GR and are


Complaint No. CC005000000095707


Complaint No. CC005000000095784


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claiming the referred period as moratorium for compensation. The
respondents could have taken the benefit of the referred GRs of RERA
had it been that agreed possession dates fell in the year March 2020 –
onwards. The agreed possession date was December 2018, which was
more than a year earlier to Covid and therefore the respondents cannot
claim benefit of the said GRs as referred by the respondents in their reply.
Therefore, it is liable to pay compensation from 01-01-2019 to 30-08-2022
i.e. entire period of delay. In addition to this, the complainants have also
relied on certain judgements where similar situation had arisen in respect
of filing of consumer complaint vis-à-vis the arbitration clause and the
Hon’ble Supreme Court at India as well the National Consumer Dispute
Redressal Commissions. Moreover, it is settled position of law that the
jurisdiction of the special legislation is not ousted by merely the presence
of arbitration clause in the agreement between the parties. Therefore,
they prayed that the said application filed by the respondent promoter
be dismissed with cost.

8. The respondent promoter has also uploaded its written arguments,
stating that the said agreements have never been challenged by the
complainants, nor have their terms ever been disputed, till date. In fact,
the complainants have acted in furtherance of the said agreements and
derived benefit therefrom. The complainants therefore are bound in toto
by the terms and cannot belatedly question the same for his convenience.
Further, the said agreements were signed when the MOFA was in force.
Even the Consumer Protection Act and the Arbitration and Conciliation
Act were in force. The remedies under these laws were all known and


Complaint No. CC005000000095707


Complaint No. CC005000000095784


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with full knowledge, both the parties have consciously selected
arbitration as the forum for dispute resolution in exclusion of the rest.
The complainants cannot now claim that they were unaware of the law
and or that as in date they have no other remedy available except to
proceed under the RERA by way of these complaints. Further, they have
acted in furtherance of said agreements for sale by making payments for
the said flats and cannot now question the clauses thereof. The
arbitration clause is much applicable and binding as the clause on
possession. It has further relied on judgements on the said issue of
arbitration in support of its application and prayed to allow the same.

9. The MahaRERA has examined the rival submission made by both the
parties and also perused the available record. In the present case, the
respondent no. 1 is the promoter of this project and the respondent no.2
(in complaint at sr no.1) is the one of the directors in the respondent no.1
firm (now known as Astrum Developments Private Limited, hereinafter
referred to as the ‘respondent’).

10. The respondent in this case has raised the preliminary objection with
respect to these complaints by filing applications on record of
MahaRERA during the course of hearing held before the MahaRERA in
these complaints. Hence, the said issue has to be decided first being
preliminary issue before dealing with these complaints on merits.

11. The respondent promoter has mainly contended that in view of the
arbitration clause no. 15.7 of the agreements for sale duly signed by these
complainants, the present complaints filed by the complainants allottees


Complaint No. CC005000000095707


Complaint No. CC005000000095784


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under the provisions of the RERA are not maintainable. Hence, it has
prayed to dismiss these complaints. To support its contentions the
respondent promoter has relied upon the order dated 14-01-2022 passed
by
the
Hon’ble
Chairperson/MahaRERA
in

Complaint
No.
CC006000000194835
by other allottees of this project viz Ayyaz Khan
and Saba Khan and the subsequent orders passed by the Hon’ble
Chairperson/MahaRERA in the same project as well as in other projects.
By the said orders, the said complaints were disposed of by the
MahaRERA and it was directed that the parties can file appropriate
proceeding under the Arbitration Act. The respondent seeks similar
order in these complaints by raising similar issues / contentions.

12. However, the MahaRERA on bare perusal of the record has noticed that
the very first order passed by the Hon’ble Chairperson/MahaRERA
dated 14-01-2022 passed in the matter of Ayyaz Khan and Anr is
challenged before the Hon’ble Appellate Tribunal in Appeal No.
AT006000000053554 filed by the said complainant-allottees on 19-01-

2022. It shows that the said very crucial issue as raised in these
complaints about the maintainability of these complaints in view of the
specific “arbitration clause mentioned in the agreement for sale executed
under the MOFA” is under consideration before the Hon’ble Appellate
Tribunal. Admittedly, based on the said order passed in the matter of
Ayyaz Khan and Anr subsequent decisions seem to have been given in
the other complaints as relied upon by the respondent herein but the said
pending appeal has bearing in these complaints. Moreover, as on date
the MahaRERA cannot take any divergent view in these complaints. In


Complaint No. CC005000000095707


Complaint No. CC005000000095784


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any case, the complainants have also opposed the said preliminary issue
raised by the respondent promoter.

13. From the record it also shows that as per order dated 23-04-2023 passed
by the Hon’ble Appellate Tribunal, the said appeal is now adjourned for
final hearing and the same is kept high on board (HOB).

14. Considering these facts and in the fitness of justice, it would be just and
proper to wait for the decision of the Hon’ble Appellate Tribunal in the
aforesaid appeal before taking any decision in these complaints on the
issue of maintainability. Both the parties are directed to file an
application on record of MahaRERA once the said appeal is decided by
the Hon’ble Appellate Tribunal. Till then, the decision in these
complaints on the issue of maintainability is kept in abeyance.


(Mahesh Pathak)
Member – 1/MahaRERA