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BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY
AUTHORITY, MUMBAI

Virtual Hearing held through video conference as per
MahaRERA Circular No.: 27/2020


Complaint No. CC006000000195203


Ravi Ramesh Rohira
...Complainant

Vs

1. Neelkamal Realtors Tower Pvt. Ltd.

2. Pooja H. Samtani (Deleted)

3. Godrej Residency Private Limited


...Respondents


MahaRERA Project Registration No. P51900006299


I N T E R I M O R D E R
(31.12.2024)
(Date of Hearing: 02.12.2024)

Coram: Shri. Ravindra Deshpande, Hon’ble Member II, MahaRERA

Adv. Jay Chhabria for Complainants
Adv. Abhijeet Mangade for Respondent No. 3

1. The Complainant has filed the present application praying this Authority to
direct the Respondent Nos. 1 and 3 pending the hearing and the final disposal
of the captioned complaint to maintain status quo as regards the rights of the
Complainant with respect to a residential apartment bearing Apartment No.
2501 admeasuring 2000 sq.ft. (equivalent to 186 sq.mtrs.) carpet area inclusive
of balconies and approximately 1100 sq.ft. (equivalent to 102 sq. mtrs) of utility
and deck area on the floor numbered as 25 of Wing “B” alongwith 2 car parking
spaces (hereinafter referred to as the “said flat”) and not to deal with the said
flat in any manner whatsoever or alternatively to record the statement of the
Respondent Nos. 1 and 3 that the rights of the Complainant in the said flat will
not be affected in any manner whatsoever

2. The brief facts of the application filed by the Complainant are as follows:-

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a. That the Complainant had filed the captioned complaint on 09.12.2020
against the Respondent No. 1 for the reliefs as more particularly mentioned
therein.
b. That the Complainant is an allottee under a Request for Allotment letter
dated 03.03.2011 (hereinafter referred to as the “RFA”) issued by the
Respondent No. 1 in respect of the said flat being part of a residential
apartment project known as “ORCHID HEIGHTS” now known as Godrej
Avenue Eleven – Tower B bearing MahaRERA Registration No.
P51900006299 (hereinafter referred to as “said project”) which was at the
time of filing the captioned complaint being constructed and developed by
the Respondent No. 1 and the Respondent No. 3 is the entity which has taken
over the subject project as promoter from the Respondent No. 1.
c. That the total consideration for the said flat was Rs. 7,07,00,500/- (Rupees
Seven Crores Seven Lakhs Five Hundred Only), out of which at the time of
booking the said flat, an amount of Rs. 2,10,31,101/- (Rupees Two Crores Ten
Lakhs Thirty-One Thousand One Hundred One Only) was paid by the
Complainant. At the time of booking of the said flat, the Respondent No. 1
represented and assured the Complainant that the possession of the said flat
shall be handed over by March 2014.
d. That the Respondent inordinately delayed the completion of the project and
failed to handover the possession of the said flat as per its representations to
the Complainant. Despite having collected over 29% of the purchase
consideration from the Complainant, the Respondents have till date failed to
enter into an Agreement for Sale under the Real Estate (Regulation and
Development) Act, 2016 (hereinafter referred to as the “said Act”) and RERA
Rules, possession of the said flat has not yet been handed over. Tower B in
which the said flat is to be constructed has not even come up to plinth level
despite allotment being of March 2011 and as per the Respondent Nos. 1 and

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3, now the possession of the said flat is not contemplated to be handed over
in the year 2028. The Complainant has thus already been made to wait for an
unreasonably long period of 13 years for the said flat as on date and is
expected to wait for a further period of 4 years till 2028.
e. That in or about July 2017, the Complainant was informed about the plans
for the said flat had been amended and as per the revised plans, the area of
the said flat would stand reduced from 3100 sq.ft. to 2330 sq. ft without
informing the Complainant and without taking the consent of the
Complainant before unilaterally amending the plans and reducing the area
of the said flat. The Respondent Nos. 1 and 3 have had the benefit of the
amounts collected from the Complainant for an unreasonably long period of
13 years, the project is nowhere near completion. The Complainant has not
only been out of pocket but has also been made to suffer the inordinate and
unreasonable delay in handing over the possession of the said flat and hence,
the present application was filed by the Complainant seeking status quo as
regards the rights of the Complainant with respect to the said flat.

3. The Respondent No. 3 has filed reply to the said application of the Complainant
and the brief facts of the reply of the Respondents are as follows:-
a. That the Respondent No. 1 being the erstwhile developer, undertook to
redevelop all that piece and parcel of land as per Property Register Card
admeasuring 19,434.10 sq. metrs or thereabouts bearing Cadastral Survey
No. 1906 of Byculla Division, E – ward, Rangwala Compound, Maulana
Azad Road, Jacob Circle, Mumbai – 400 011 (hereinafter referred to as the
“said property”). Thereafter, the Respondent No. 3 took over the said project
vide a Deed of Conveyance dated 23.12.2022 executed between the
Respondent No. 1 and the Respondent No. 3 and by virtue of the said Deed
of Conveyance, the Respondent No. 3 became the owner of the said property.
b. That it is admitted position that the building in which the Complainant has

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booked the said flat with the erstwhile developer i.e. the Respondent No. 1
herein is yet to commence construction and that from the conduct of the
Complainant that the Complainant is not ready and willing to wait till its
completion.
c. That it is matter of record that the Complainant along with his father had
booked the said flat for a total consideration of Rs. 7,07,00,500/- (Rupees
Seven Crores Seven Lakhs Five Hundred Only).
d. That the complaint filed by the Complainant is premature as the
Complainant has not acquired any rights under the said Act. As per the
terms of the RFA, which is signed by the Complainant, it is explicitly stated
that the possession of the said flat shall not be granted until the execution of
Agreement to Sell. Presently, there is no Agreement to Sell between the
Complainant and the Respondent No. 1. Moreover, under section 18 of the
said Act, the obligation for the promoter to pay interest or compensation
arises only when possession is not handed over in accordance with the terms
of the sale Agreement, which in the instant case has not been executed
between the Complainant and the Respondent No. 1.
e. That the Complainant has sought relief with respect to the possession of the
said flat while it is undenied fact that the request for allotment signed by him
does not indicate a date for possession and has failed to satisfy the
prerequisites for initiating legal recourse pursuant to the said Act given the
absence of accrued possession rights. Consequently, in absence of a valid
Agreement between the Complainant and the Respondent No. 1, the
substratum of the Complaint is devoid of any merits.
f. That out of the total consideration, the Complainant has paid an amount of
Rs. 2,12,41,412/- (Rupees Two Crores Twelve Lakhs Forty One Thousand
Four Hundred and Twelve Only) including amounts towards taxes such as
Service Tax etc. to the Respondent No. 1. That the said amount was paid by

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the Complainant as an “Interest Free Deposit” in accordance with the clause
4 of the said RFA dated 03.03.2011 addressed jointly by the father of the
Complainant and the Complainant.
g. That as per clause 8(iv) of the said RFA, the Complainant has agreed to borne
the service tax and value added tax applicable on the sale of the said flat by
virtue of which the Respondent Nos. 1 and 3, are not liable to refund the
amount paid by the Complainant towards such taxes.
h. That the Complainant was aware that the amount paid by him was towards
Interest Free Deposit to the Respondent No. 1 and the Complainant cannot
claim interest on it. The contentions raised by the Complainant is nothing
but an afterthought to harass the developer by filing the present complaint
claiming interest/damages/compensation.
i. That as a settled principle an order for injunction may be passed only when
there is an apprehension of violation rights of a party by the other. In the
present case, the Respondent No. 3 at no point has failed to recognize the
Complainant as an allottee or have apprehended to cause any irreparable
harm to the rights of the Complainant. The Respondent No. 3 has shown its
willingness to amicably resolve the issues of the Complainant thereby
indicating that there is no apprehension of irreparable loss to be caused to
the Complainant. Consequently, there exists no prima facie case in favour of
the Complainant warranting adjudication until the resolution of the
complaint.
j. That the Complainant has failed to substantiate the rationale underlying the
damages/compensation sought for in the complaint.
k. That the said RFA mentions the area of the said flat as 2000 sq.ft. (equivalent
to 186 sq.mtrs.) carpet area inclusive of balconies and approximately 1100
sq.ft. (equivalent to 102 sq. mtrs) of utility and deck area alongwith 2 car
parking space and not as lumpsum 3100 sq.ft. carpet area as wrongly stated

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in the complaint.
l. that the Complainant has failed to produce any document which states that
the possession of the said flat would be handed over by March 2014 and that
amendment to RFA dated 17.07.2017, states that the promoter shall endeavor
to handover possession latest by 31.12.2021subject to a further grace period
of 12 months.
m. That the Respondent No. 1 has duly informed the Complainant through its
letter dated 17.07.2017 about the reduction in total area of the flat due to
amendments in the Development Control Regulations in January 2012 and
Public Parking Lot Policy as notified in August 2014. The Complainant did
not raise any such objection until the Respondent No. 3 took over the said
project and it is now at such a belated stage that these issues are being raised
by the Complainant.
n. That the Respondent No. 3 is ready and willing to refund the amount paid
by the Complainant towards “Interest free Deposit” and that the rights of the
Complainant are very well safeguarded and any restraining order in the
present matter would result into injustice towards the Respondent No. 3

4. The Complainant has filed rejoinder to the said reply of the Respondent No. 3
wherein the Complainant has mainly repeated and reiterated the contents of the
complaint and the Interim Application. The brief facts of the rejoinder of the
Complainant are as follows:-
a. That under the provisions of the said Act read with Circular No. 11 of
2017 dated 08.11.2017, all pending obligations towards the allottees are
cast upon the new developer. In view of this, any claim, averment or
contention of the Respondent No. 3 as insinuated under the said reply
with respect to not being conversant qua the obligations of the
Respondent No. 1 towards the Complainant is contrary to the said Act
and is baseless, untenable and deserves to be rejected. That the

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Respondent No. 2 is nothing but a Special Purpose Vehicle with its
shareholders as Respondent No. 1 and Godrej Properties Limited and
hence, the Respondent No. 3 cannot now contend and say that it is a new
developer who has nothing to do and/or no relationship with the
Respondent No. 1. Thus, it can be said that as on date the Respondent
continues to be co-developer/co-promoter in the said project.
b. That the Respondent No. 3 had issued a public notice dated 25.02.2022
whereby they had sought information of all claims pertaining to the
project. Accordingly, the Complainant had by letter dated 07.03.2022
intimated to the Respondent No. 3 about the facts, his claims and filing of
the captioned complaint and its pendency before this Authority. Despite
receipt of the complaint and acknowledging the grievances of the
Complainant, the Respondent No. 1 addressed a letter dated 19.10.2022
seeking consent of the Complainant under Section 14(2)(i) and 14(2)(ii) of
the said Act to make alteration in the plan/project/layout and internal
area of the said flat and for change of promoter under Section 15 of the
said Act seeking waiver to any objection/dispute/claim to transfer the
said project under the said Act. The Respondent No. 1 further sought the
Complainant’s waiver qua all past financial commitments made by the
Respondent No. 1 including any interest, penalties, rent and
compensation and further sought an unequivocal undertaking and
consent not to claim any monies by way of interest, compensation,
refund, damages, tax-benefit costs, indemnities, set off on account of
change in rate of benefit of service tax and/or GST and delay in
possession amongst others from the existing promoter/incoming
promoter. The Respondent No. 1 sought an undertaking not to sue for
anti-profiteering as the incoming promoter is now charging a 12% GST as
against the GST rate of 5%. Respondent No. 3 under the pretext of this

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letter was attempting to re-write and/or modify the terms of the
Agreement/RFA as agreed and/or entered into upon by and between the
Complainant and the Respondent No. 1.
c. That on 09.09.2023, the Complainant in his capacity of being an allottee in
the project was invited by the Respondent No. 3 to the launch of the
project with 3D models on display and a sample flat to view, when, he
got to know that the said RFA was grossly violated and the entire area of
the said flat as per RFA had been reduced to a great extent. Hence, the
Complainant was expected to bear the loss of the earlier committed area
which was now reduced and being sold at today’s market price to other
buyers to enhance the economic profitability of the promoter in the guise
of commercial viability by the Respondent No. 3. The Respondent No. 3
had unilaterally modified and changed the contracted and sanctioned
area of the said flat without the consent of the Complainant and without
the care for the obligations and responsibilities cast upon it towards the
Complainant under section 14 of the said Act.
d. The Complainant despite having filed the complaint had already suffered
irreparable harm and loss in view of no interim relief being granted till
that date and/or the
complaint not
being heard/listed. Needless to say,
as the Respondent No. 3 had unilaterally modified and changed the
contracted and sanctioned area of the said flat, without the consent of the
Complainant and without care for the obligations and responsibilities
cast upon it towards the Complainant under section 14 and section 15 of
the said Act and in violation of the Complainant’s rights. Considering the
unilateral decisions and the misrepresentations made by the Respondent
No. 1/3 not only to allottees but also, to MahaRERA, further irreparable
harm and loss would be caused to his rights at the behest of the
Respondent No. 1/3 if interim relief maintaining status quo is not granted

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to the Complainant vide the present Interim Application.
e. That the Respondent No. 3 in an attempt to absolve itself from the
obligations and responsibilities cast upon it, is arm twisting and
pressurizing the Complainant to walk away from the project with
nothing more than the principal amount or with reduced area, that too
after a long wait of 13 years. The Respondent No. 3 by the said reply on
one hand is admitting that the Complainant is an allottee but on the other
hand is not ready to accept that the valid, binding and executed RFA
between the Complainant and the Respondent No. 1 is a valid agreement.
As held by the Hon’ble Courts at Bombay and also by the Maharashtra
Real Estate Appellate Tribunal (MahaREAT) that section 18 read with
section 2(c) of the said Act, defines an agreement for sale in terms, do not
provide for the requirement of a written agreement for sale.
f. The Complainant has already paid 29% of the purchase consideration. In
view of the same, the promoters are already in violation of section 4 of
the Maharashtra Ownership Flats Act, 1963 (hereinafter referred to as the
“MOFA”) and/or section 13 of the said Act, which mandates registration
of an agreement if more than 20% and 10% of the consideration is paid,
respectively. The promoter having failed to register the said flat in the
name of the Complainant for over 13 years, cannot take the benefit of its
own deficiencies of willful and deliberate absence of a written date of
possession in the RFA which is actuality was orally communicated to the
Complainant as March 2014. The Hon’ble Apex Court and MahaREAT as
well has observed that that a buyer is expected to wait for a reasonable
period and that a period of three years is held to be a reasonable time. In
the present case, a period of 13 years have lapsed and the Respondent
Nos. 1 and 3 have admittedly not even started construction of Tower ‘B’
contrary to its own Chartered Accountant certificates filed upon the

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MahaRERA website. Despite being in grave violations of the said Act, the
Respondent Nos. 1 and 3 have as late as in 2022 attempted to corner the
Complainant in executing a waiver of the Complainant’s rights as a pre-
condition to execute the mandated agreement for sale. In view of the
malafide conduct of the Respondent Nos. 1 and 3 from 2010, it is highly
imperative that to protect the rights of the Complainant to the said flat till
the final adjudication of the complaint status quo for the area of 3100 sq.ft.
as per the RFA be maintained by the Respondent Nos. 1 and 3, as prayed
for in the Interim Application failing which, the Complainant will
continue to suffer irreparable and grave injustice at the hands of the
Respondent Nos. 1 and 3 and the prayers in the complaint filed in 2020
would be rendered infructuous.

5. The Complainant has also filed his Written Submissions with this Authority,
wherein, mainly the Complainant has repeated and reiterated the contents of
his complaint and Interim Application. It has been further stated by the
Complainant that in August 2017, the Respondent No. 1 has already mortgaged
the entire property including units to be constructed in the building which
includes the said flat allotted to the Complainant, without the knowledge of the
Complainant and that the building is not yet constructed and is at the stage of
excavation. It is not as if flats with lesser areas have already been constructed
and the matter is a fate accompli. The Respondent Nos. 1 and 3 can still construct
the said flat with the original area of 3100 sq. ft. promised to the Complainant if
need be by carrying out necessary amendments to the plans which were
unilaterally amended by them without the knowledge and consent of the
Complainant. The Respondent Nos. 1 and 3 have in excess 3,25,672.36 sq. ft. of
FSI which is mentioned on the MahaRERA website.

6. The said application was heard by this Authority on 02.12.2024, when, both the
parties appeared through their advocates. It was submitted by the advocate for

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the Complainant that the allotment was made by a letter of allotment dated

03. 03.2011. A flat was allotted on the 25th floor. The area of the flat was 3100 sq.
ft and that the Complainant has paid Rs. 2,10,00,000/- which is about 29% of the
total consideration. It was submitted that the Respondent No. 1 has unilaterally
changed the area of the flat to 2330 sq. ft and that till the final decision of the
complaint, the right of the Complainant regarding the area of 3100 sq. ft. may
be protected. It was submitted by the advocate for the Respondent No. 3 that all
the allegations levelled by the Complainant are against the Respondent No. 1.
The Respondent No. 3 stepped into the shoes of Respondent No. 1 recently. On
the date of the first hearing, the Respondent No. 3 made an offer for a refund of
their amounts along with applicable interest. It is submitted by the Respondent
that the entire money was paid to the Respondent No. 1, and not to the
Respondent No. 3. It is submitted that there is no privity of contract between
the Complainant and the Respondent No. 3. There is no document to show that
Respondent No. 3 has reduced the area of the said flat. It is submitted that there
is no allotment letter, it is only a request for the allotment which is dated

03. 03.2011 and submitted that as per clause no. 4 of the RFA the amount paid
by the Complainant is interest free deposit and it was submitted that the
Respondent No. 1 had agreed to allot the flat and that the Complainant is not
entitled to get relief as the entire layout is changed and submitted that the
Respondent No. 3 is ready to return the money of the Complainant.

7. After considering the submissions of the parties, it has been observed that the
terms of the said RFA is germane to decide the present Interim Application. It
is one of the main contentions of the Complainant that vide the said RFA, the
Respondent had allotted the said flat admeasuring 3100 sq. ft and the same has
been reduced to a great extent i.e. to 2330 sq. ft. In this behalf, it would not be
out of context to draw reference to clause 1(d) of the said RFA. As per the said
clause 1(d) of the said RFA, the Flat No. 2501 has been defined to be

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admeasuring 2000 Sq. Ft. equivalent to 186 Sq. Mtrs. carpet area inclusive of
balconies and approximately 1100 Sq. Ft. equivalent to 102 Sq. Mtrs. in respect
of utility area and deck area on the floor numbered as 25 of Wing “B” alongwith
2 car parking/s of the proposed multi-storeyed building to be known as
“ORCHID HEIGHTS”. No where in the said RFA, the area measurements of the
said flat is described as 3100 Sq. Ft. as stated by the Complainant. Not only this,
as per clause 3 of the said RFA, in the event on the final sanction of the floor
plan of the said flat if the carpet area of the said flat increases or decreases then
the consideration reserved therein was to be increased or decreased
proportionately and was also to stand enhanced or reduced accordingly.
Considering the explicit terms of the said clause, in my opinion, in case the area
of the said flat is reduced on account of the factors such as introduction of
DCPR, then in such an event, the Respondent No. 1 and 3 cannot be held liable
of violation of the terms of the said RFA since the said reduction in area is not
on account of the violation of any of the terms of the said RFA by the
Respondent. Not only this, it is also necessary to peruse the clause No. 6 of the
said RFA. Vide which, the Complainant agreed that the writings of the said RFA
was not and did not purport to be an “Agreement to Sell” in as much as the
transaction/arrangement contemplated therein was subject to entering into and
execution of the flat Agreement and that the said writing was merely an
intention to enter into the Flat Agreement with the Respondent to purchase of
the said flat on fulfilment of the terms and conditions recorded in the said
writing. It was further recorded in the said clause that the Respondent was not
entitled to handover the possession of the flat until execution of the Flat
Agreement and compliance of the terms and conditions thereof and not
otherwise. Not only this, the Respondent No. 3 has itself admitted that the
construction of the building in which the said flat situates, is yet to commence.
Furthermore, the Respondent No. 3 has not negated the rights of the

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Complainant in the said flat and has even admitted the fact that the
Complainant has booked the said flat alongwith his father in the said project. In
light of the above clauses, this Authority is of the opinion that the Complainant
has not made out a prima facie case for the grant of reliefs as prayed for in his
Interim Application. Additionally, it is one of the main prayers of the
Complainant to order and declare that there exists a valid, existing and binding
contract for sale by the Respondent No. 1 and/or the Respondent No. 3 to the
Complainant in respect of the said flat in terms of the said RFA and for a
declaration that the same is valid, subsisting and binding on the parties thereto.
Granting the prayers of the Complainant in the present Interim Application
would amount to granting reliefs of the main complaint at the interim stage,
hence, the same cannot be granted at this stage. In view of the same, this
Authority is of the view that there is no need to pass any status quo order in the
present case qua the rights of the Complainant in the said flat. All the
contentions raised by the Complainant and the Respondent No. 3 in the
proceedings filed under the Interim Application shall be decided at the time of
deciding the complaint finally. In view of the same, the present Interim
Application stands rejected.


(Ravindra Deshpande)
Member II, MahaRERA
Date:31.12.2024
RAVINDRA
PADMAKARA
O DESHPANDE
Digitally signed by
RAVINDRA
PADMAKARAO
DESHPANDE
Date: 2024.12.31
13:36:04 +05'30'