Complaint No. CC006000000209689


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BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY, MUMBAI


Complaint No. CC006000000209689

1. Najaribai Ganeshlal Jain

2. Bharat Ganeshlal Jain


... Complainant/s

Versus

1. Parekh Construction

2. Darshana Nitin Kapadia

3. Maharashtra Real Estate Regulatory Authority
... Respondent/s


MahaRERA Project Registration No. P51900011563


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

Ld. Adv. Nilesh Gala appeared for the complainants.
None appeared for the respondents.


INTERIM ORDER


(Monday, 5th February 2024)

(Through Video Conferencing)


1. The complainants above named have filed this online complaint before
MahaRERA on 14-01-2022 mainly seeking directions from MahaRERA to the
respondents to pay interest, penalty, cost, not to create third party rights in
the respect of the unsold flats in the said project and for revocation of project
as prescribed under the provisions of the Real Estate (Regulation &
Development) Act, 2016 (hereinafter referred to as ‘RERA’) in respect of flat
no. 1601, 16th floor, admeasuring area 1017.95 sq. ft. carpet area including the
additional purchased carpet area of 221.41 sq. ft. (hereinafter referred to as
“said flat”) in the respondents’ registered project known as “Parvati Enclave”
bearing MahaRERA registration No. P51900011563 located at ABCD-400002,
Taluka - Ambarnath, District - Mumbai City.


Complaint No. CC006000000209689


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2. This complaint was heard by the MahaRERA on several occasions and finally
on 24-08-2023 as per the Standard Operating Procedure dated 12-06-2020
issued by MahaRERA for hearing complaints through Video Conferencing.
Both the parties have been issued prior intimation of this hearing and were
also informed to file their additional written submissions if any. Accordingly,
the complainants appeared for the hearing and made their submissions.
However, despite notice, the respondents remained absent. The MahaRERA
heard the submissions of the complainants and perused the available records.

3. After hearing the arguments of the complainant, the following Roznama was
recorded in this complaint –
“The complainant is present. The respondents are absent. The complainant
has mentioned about the order of the Hon’ble High Court dated 11-08-2023
passed in W.P (L) No. 20423 of 2023 and Ors against the respondent no. 1 and
2 as well as a new party Nishcon Developer - which was an intervenor in the
said proceedings before the Hon’ble High Court at Bombay. The orders of the
Hon’ble High Court have been uploaded by the complainant and the
complainant contends that not only the Hon’ble High Court has terminated
the said development agreement but has also directed MHADA to appoint a
new developer and a substantial amount has been directed to be recovered
from the 3 entities, i.e. the present developer - the respondent no. 1, the
landlord - the respondent no. 2, and the said Intervenor- Nishcon Developers
Pvt. Ltd. Further, the complainant has also prayed that on the same
principles, MahaRERA should grant interest and compensation for the delay
as the project was to be completed in March 2017 according to the
Development Agreement and agreement for sale signed in 2011. Vide the said
permanent alternate accommodation agreement, the complainant has
acquired an additional area of 221 sq. ft. by paying an amount of Rs.
36,53,000/-. Therefore, the complainant admits that the MahaRERA would


Complaint No. CC006000000209689


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have to restrict its orders to interest and compensation for the delay to the
said additional area and additional amount paid which is mentioned on the
page 40 of the permanent alternate accommodation agreement. The
complainant has also prayed that the accounts in the project be frozen and
the respondents be directed to desist from creating any further third party
interest, in view of the orders of the Hon’ble High Court dated 11-08-2023. The
complainant has also contended that in violation of section 15 of the RERA,
the said intervenor - Nishcon Developer Pvt Ltd. has taken over or is trying
to take over the project from the respondent no. 1 and therefore, there is a need
to revoke the registration as well due to the above illegalities. The respondent
no. 1 and 2 are directed to file their replies to the complaint within a period
of 2 weeks i.e by 07-09-2023 mainly on the issue of revocation of the
registration as well as interim orders requested by the complainant for
freezing of the accounts as well as not to create any third party along with
written arguments. The complainant may file his rejoinder to the replies of
the respondents within a further period of one week i.e. by 14-09-2023 along
with its written arguments. Even if the respondent does not file any reply or
written arguments, the complainant may file his written arguments. If the
respondent does not file any reply, rejoinder the MahaRERA would be
constrained to decide the matter ex - parte against the respondent on merits.
This matter is reserved for orders on these interim prayers of the complainant
(other than the prayer for interest and compensation for the delay) suitably
after 14-09-2023 based on the arguments of the complainant, the documents
filed in the complaint as well as reply, rejoinder and written arguments filed
in the complaint. Meanwhile, the account created in the said project
registration may not be operated and no further third party sale / rights be
created till such orders are issued. The future course of action in this
complaint will be decided once such an order is issued. The registry is directed
to convey the same to the concerned department of the MahaRERA.”


Complaint No. CC006000000209689


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4. However, despite specific directions being given to both parties, neither the
complainants nor the respondents have uploaded any rejoinder, or written
submission on record of MahaRERA.

5. It is the case of the complainants that the respondent no. 1 is the developer
and respondent no. 2 is the landlord of the said project land. The
complainants are the tenants of the erstwhile building of the said project land
and were allotted the above mentioned said flat in the said project wherein
they have allotted the area of 794.56 sq.ft in lieu of their entitlement as tenant
and further they have purchased additional area of 221.41 sq. ft. aggregating
total area of 1017.95 sq.ft. carpet area forming the said flat. The additional
area was purchased by the complainant for a total consideration amount of
Rs.36,53,265/- out of which Rs. 11,02,464/- has been paid by the complainant
to
the
respondent
no.1
vide
agreement
of
permanent
alternate
accommodation (hereinafter will be referred to as “PAA”) dated 29-04-2015
wherein the respondent no.1 had promised to handover the possession of the
said flat on or before 24 months from the issue of commencement certificate.
However, the complainants contended that the respondent no.1 failed to
obtain a commencement certificate in the stipulated period which was agreed
upon by respondent no. 1 , which resulted in the delay in the handover of
possession of the said flat. The complainants further stated that as per PAAA,
the respondent no.1 was liable to obtain CC within 6 months of IOD or the
date when the last tenant vacates the tenement. However, the respondent no.1
failed to adhere to the agreed timeline and failed to give possession of the said
flat on the agreed date.

6. Further, the said project was stalled for 7 years and around July 2020, the
respondent no.1 requested the complainants to sign the pre-printed consent
letter to induct Nishcon Realty Pvt. Ltd. The respondent no. 1 vide the said


Complaint No. CC006000000209689


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consent form sought to extend the project completion date by another 3 years
with a grace period of 6 months. Further, they stated that respondent no.1
sought another consent letter to modify the said sanctioned plan to
amalgamate the adjoining plot. Further, they stated that while registering the
said project with MahaRERA, the respondent no. 1 never obtained 70%
consent of the existing old tenants which was mandatory under D.C.
regulations as well as mandatory under RERA. The complainants relied on
the

JUDGMENT

passed by MahaRERA in CC00600000197320 in Lata
Khubhchandani v/s. Nisar Kazi wherein it was held that the developer was
guilty of unfair trade practice and was ordered to pay the interest for the
additional area purchased. Further, the complainants mentioned the revised
proposed date of completion on the RERA portal as 30-06-2024 whereas in fact
the respondent no. 1 has not even started construction work. The
complainants further submitted that aggrieved by the respondent no. 1, the
tenants as well as the complainants have filed multiple proceedings in
Bombay High Court against respondent no. 1 due to non-payment of rent and
stalling of the project. Further, the complainant has filed a writ petition before
the Hon'ble High Court, bearing Civil Writ Petition No. 27 of 2022 with a
separate cause of action concerning breaches of MHADA no objection
certificate and non-payment of rent in respect of PAAA. The complainants
further submitted that the respondent no. 1 has sold the flats without
commencement certificate and thus doing unfair trade practice. Further,
there is inordinate delay in completing the said project and hence it prayed to
revoke the registration of the said project. For this, the complainant has relied
on the judgements of Supreme Court in Kolkata West International City Pvt.
Ltd. vs Devasis Rudra and in Fortune Infrastructure vs Trevor D’ilma wherein
it was held that “the allottee can not be made to wait indefinitely for the
possession of flat and three years is a reasonable time for handover of
possession.”


Complaint No. CC006000000209689


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Thus, being aggrieved by the above-mentioned actions on the part of the
respondents, the complainants have filed this complaint for seeking directions
to the respondents to pay interest for delay in possession, penalty, cost, not to
create third party rights in the respect of the unsold flats, not to bring third
party developer without following due process of law and for revocation of
the extension and also revocation of the project itself.

7. Further, on 24th August,2023 the complainants have uploaded the order of
Bombay High Court in Writ Petition No. 27 of 2022 and precedent orders of
the MahaRERA to make out their case.

8. In the present case, the MahaRERA has observed that the complainants have
filed this online complaint before MahaRERA on 14-01-2022. However, till
date, the respondent no. 1 has not bothered to upload reply to this complaint,
though this complaint was visible to the respondent no. 1 in its project login.
Even as per the SOP dated 12-06-2020, the respondent was liable to upload
reply in digital form in this complaint. However, till date, the respondent no.
1 has not complied with the said direction. Furthermore, though the notices
for virtual hearings held on 11/04/2022 and 24/08/2023 respectively have
been duly served upon it, the respondent no. 1 failed to appear for the said
hearings. Further, during the hearings, sufficient time was granted to the
respondent no. 1 to file reply to this complaint as a last chance. However,
despite specific directions being issued, it has failed to upload any reply/
written submission on the record of MahaRERA. It shows that the respondent
no. 1 is not willing to contest this complaint. Hence, the MahaRERA has no
other alternative but to proceed with this matter ex-parte against the
respondent no. 1 on merits.

9. The MahaRERA has examined the submissions made by the complainants


Complaint No. CC006000000209689


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and also perused the available record. The complainants by filing this
complaint are mainly seeking three substantive reliefs from the MahaRERA
viz i) interest for delayed possession, ii) not to create third party rights in
respect of the unsold flats in the project and iii) revocation of project
registration granted in favour of the respondent no.1.

10. This complaint was heard by the MahaRERA on 24-08-2023, when the
complainants have submitted the copy of order dated 11-08-2023 passed by
the Hon’ble Bombay High Court in W.P.(L) No. 20423 of 2023 and 4 other
connected Writ Petitions (Sushila Gordhandas Parikh). The complainants
have contended that as per the said order the Hon’ble High Court has
terminated the appointment of the respondent no. 1 promoter and the so-
called new promoter viz. M/s. Nishcon Realty and directed the respondent
no. 3 viz MHADA to appoint a new promoter. The complainants also
contended that the new promoter was appointed without following due
process of law and hence, they have prayed for revocation of the project
registration granted in favour of the respondent no. 1. The complainants have
also prayed that the accounts in the project be frozen and the respondents be
directed to desist from creating any further third-party interest, in view of the
orders of the Hon’ble High Court dated 11-08-2023.

11. In view of the said submissions made by the complainants, the respondent
nos. 1 and 2 were directed to file their reply on the said two main issues raised
by the complainants viz i) revocation of the project registration and ii) freezing
of the account /preventing the respondent nos. 1 and 2 from creating any
third-party interest in this project. However, from the record it appears that
the said respondents have not uploaded any reply to the said issues raised by
the complainants. Hence, the MahaRERA has perused the available record.

12. In the present case as far as the substantive issue of interest and compensation


Complaint No. CC006000000209689


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on account of delay sought by the complainants restricted with regard to the
additional area admeasuring 221 sq.ft., the MahaRERA has already directed
that the same will be decided at the time of final hearing of this complaint on
merits as per the roznama dated 24-08-2023.

13. However, as far as the relief sought by the complainants regarding revocation
of the project registration issued by the MahaRERA under section 7 of the
RERA, it is pertinent to note that as per the provision of section 7 of the RERA,
the MahaRERA registration may be cancelled if the promoter makes default
in doing anything required by or under the RERA or if the promoter violates
any of the terms or conditions of the approval given by the competent
authority or if the promoter is involved in any kind of unfair practice or
irregularities as specified under section 7(1)(a) to (c) and (A) and (B) of the
RERA. However, in the instant case, the complainant has not produced any
cogent documentary evidence to show that the respondent has violated any
of the terms or conditions stipulated in the provisions of section 7 of the
RERA. Therefore, the prayer for revocation of projects registered by the
respondent with the MahaRERA sought by the complainants is devoid of any
merits. Even, the complainants have not established the fact that the
respondent is involved in any kind of unfair trade practice or irregularities by
submitting any order passed by the competent court of law. Therefore, the
relief sought by the complainants under section 7 of the RERA for revocation
of the MahaRERA project registration granted to the respondent stands
rejected. Furthermore, even if there is any termination of the development
rights in favour of the respondent no. 1 as per the order of Hon’ble High Court
at Bombay, now it is for the MHADA to appoint a new promoter to complete
the present project. Needless to state here that the project is still valid and has
completion date of 30-06-2024. Moreover, in this case, the complainants on
one side are seeking relief under section 18 of the RERA and at the same time


Complaint No. CC006000000209689


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they are seeking contradictory reliefs towards revocation of the project
registration.

14. As far as the issue of freezing of the bank account and creation of third-party
rights in the project, the MahaRERA has noticed that by virtue of the aforesaid
order of Hon’ble Bombay High Court, the NOC issued by the respondent no.
3 viz MHADA in favour of the respondent no. 1 for implementation of this
project and also to the so-called new promoter (M/s. Nishcon Realty) has
already been cancelled (as per para-no. 6 of the said order) and the direction
was given to the MHADA to proceed in accordance with law for the
appointment of another developer (as per para 8 of the said order).

15. It clearly shows that by virtue of the aforesaid order of Hon’ble Bombay High
Court the appointment of the respondent no. 1 promoter (who has registered
this project with the MahaRERA) is terminated as a promoter of this project
and obviously it has no rights and title to create any third-party rights or
interest in the project and also it is also not entitled to operate the bank account
of this project.

16. In addition to this as far as the violation of section 15 of the RERA as alleged
by the complainants, the MahaRERA is of the view that the said issue does
not survive now in view of the aforesaid order dated 11-08-2023 passed by the
Hon’ble High Court at Bombay.

17. In view of the aforesaid order passed by the Hon’ble High Court at Bombay ,
the MahaRERA sees no objection to grant the interim reliefs sought by the
complainants at this stage. However, from the webpage information
uploaded on the MahaRERA website, the MahaRERA prima facie noticed
that the aforesaid order passed by the Hon’ble High Court is not yet shown
and uploaded on the MahaRERA website in the pending litigation details by


Complaint No. CC006000000209689


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the respondent no. 1 although the said project is valid till 30-06-2024.

18. In view of the above, the following order is passed :-
a. The respondent no. 1 promoter is directed to upload the aforesaid order
dated 11-08-2023 passed by the Hon’ble Bombay High Court in W.P.(L)
No. 20423 of 2023 and 4 other connected Writ Petitions (Sushila
Gordhandas Parikh and others) on the MahaRERA website within a period
of two weeks’ from the date of this order.
b. The respondent no. 1 is also restrained from creating third -party rights (
selling of any flat to a third -party) in the project and also from operating
the RERA bank account in respect of this project and the concerned
department of MahaRERA may take appropriate action in this regard by
informing this order to the concerned bank.
c. Failing to comply with the aforesaid directions issued hereinabove,
appropriate penal action would be taken against the respondent no. 1
under section 63 of the RERA if any such non-compliance if brought to the
notice of MahaRERA.
d. The Registry of this bench is directed to forward this

INTERIM ORDER

to all
concerned departments of MahaRERA to ensure necessary compliances.
e. This complaint be listed for next hearing on 13-03-2024 for further hearing
to decide the substantial issue of interest and compensation sought by
these complainants as well as the future course of action with regard to
this project registered with the MahaRERA.
f. The Registry of this bench is directed to issue hearing notice to the
respondent no. 3 viz MAHDA for next date of hearing i.e. on 13-03-2024.


(Mahesh Pathak)
Member – 1/MahaRERA