Complaint No. CC006000000197998


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BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY, MUMBAI


Complaint No. CC006000000197998

Anant Mishra


.... Complainant

Versus

Era Realtors Pvt Ltd


…..Respondent


MahaRERA Project Registration No. P51800010463


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

Ld. Adv. Mishra appeared for the complainant.
Ld. Adv. Namrata Powalkar appeared for the respondent.


INTERIM ORDER


(Friday, 24th November, 2023)

(Through Video Conferencing)


1. The complainant above named has filed this online complaint before the
MahaRERA on 28-11-2021 , mainly seeking directions from MahaRERA to the
respondent to refund the entire money paid by him along with interest and
compensation prescribed 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 B-1502 in the respondent’s registered
project known as “Alta Monte and Signet” bearing MahaRERA registration No.
P51800010463 located at Malad (East) Mumbai, Mumbai Suburban. (Hereinafter
referred to as the said flat).

2. This complaint was heard on several occasions and the same was heard finally
on 04-07-2023 as per the Standard Operating Procedure dated 12-06-2020 issued


Complaint No. CC006000000197998


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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 said hearing and made their respective 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 of this complaint on the ground of the clause of arbitration
mentioned in the agreement for sale as these agreements were signed prior to
RERA in the MOFA regime. The complainant in his rejoinder has quoted the case
law as per which despite such clause in the agreement for sale, any dispute
between the allottee and the promoter falls within the jurisdiction of RERA as
the RERA is a special Act having concurrent jurisdiction. Further, since the
RERA is a central Act it would prevail over the MOFA. The respondent is
directed to file a sur rejoinder to the rejoinder of the complainant and its written
argument within a period of two weeks i.e. by 18-07-2023. The complainant may
file his written arguments if need be, by the said date. This matter is reserved for
orders on the preliminary objection raised by the respondent on the issue of
maintainability of this complaint based on the arguments of both sides as well
as the reply, rejoinder, sur rejoinder (if any), filed in the complaint suitably after
18-07-2023. The further course of action in this matter will be decided once such
an order is issued.”

4. Pursuant to the aforesaid direction the respondent has uploaded its written
submission on the record of MahaRERA on 18-07-2023. The same is accepted and
taken on record. However, the complainant has not uploaded any documents on
the record of MahaRERA after the last date of hearing i.e., 4-07-2023. Hence the


Complaint No. CC006000000197998


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MahaRERA perused the available record.

5. It is the case of complainant that, he booked the said flat in the respondent’s
registered project for total consideration of Rs 17,656,225/- Out of which he has
paid an amount of Rs. 1,51,00,357/-. The registered agreement for sale was
executed between the parties on 29-04-2017. As per clause 13 of the agreement
for sale, the respondent had assured to handover the possession of the said flat
on or before March 2019. However, it has failed to honour its commitment of
handing over the possession of the said flat. Therefore, the agreement for sale
automatically got frustrated and came to an end. Further the respondent became
liable to return the entire money paid by the complainant on or before March
2019 in respect of the flat along with interest to the complainant. However, the
respondent miserably failed to hand over the possession of the flat even after
expiry of further period of 12 months in terms of an apparently ex-facie one-
sided, unfair, and unreasonable condition stipulated in the said agreement for
sale. Thereafter without taking consent from the complainant the respondent has
time and again proceeded to extend unilaterally the date for handing over
possession of the said flat with its ownership. Being aggrieved and dissatisfied
with the conduct of the respondent, the complainant has filed the present
complaint. Hence, the complainant prayed to MahaRERA to allow this
complaint and grant reliefs as sought for in this complaint.

6. The respondent has uploaded its reply on 17-05-2023 on the record of the
MahaRERA. The respondent submitted that as per clause 13 of the agreement for
sale, the parties have mutually agreed that the dispute as to whether the
stipulation specified on section 8 of the MOFA have been satisfied or not will be
referred to the arbitration of an independent person nominated by the promoter
who will act as a sole arbitrator. In view of the same, the matter should be first
referred to the sole arbitrator as mutually agreed upon between both the parties.


Complaint No. CC006000000197998


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Hence on the said ground it should be dismissed. The respondents have relied
upon several judgements passed by the MahaRERA in the same project, wherein
the MahaRERA held that the complainants were directed to take recourse to
arbitration and transferred the matters to the arbitration pursuant to clause 13 of
the agreement for sale.

7. In view of the above, in the present case, the MahaRERA has noticed that the
respondent promoter in this case by filing its reply to this complainant on record
of MahaRERA on 17-05-2023 has raised the preliminary issue of maintainability
of this complaint stating that in view of the arbitration clause no. 13 of the
agreement for sale duly signed by the complainant, the present complaint filed
by the complainant allottee under the provisions of the RERA is not
maintainable. Hence, it has prayed to dismiss this complaint. 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 common order dated 1-12-2022 passed in 16 other
connected complaints filed with respect to this project. 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 this complaint as the same has been filed under
the same project registration number i.e. P51800010463.

8. 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 has been 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 crucial issue as raised
in this complaint about the maintainability of this complaint in view of the


Complaint No. CC006000000197998


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specific “arbitration clause mentioned in the agreement for sale executed under
the MOFA” is under consideration before the Hon’ble Appellate Tribunal.
Admittedly, the said order is passed in this particular project and the decision in
the said pending appeal has bearing in this complaint. Moreover, as on date the
MahaRERA cannot take any divergent view in this complaint. In any case, the
complainant has also opposed the said preliminary issue raised by the
respondent promoter.

9. 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).

10. 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
while taking any decision in this complaint 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 this complaint on the issue of maintainability is kept in abeyance.


(Mahesh Pathak)
Member – 1/MahaRERA


Complaint No. CC006000000197998


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