Complaint No. CC006000000209929


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BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY
AUTHORITY, MUMBAI

Complaint No. CC006000000209929

Mr Sheshrao Mukundrao Bhongade &
Mr Amol Sheshrao Bhongade


... Complainants

Versus

Ronak Builders and Developers


... Respondent


MahaRERA Project Registration No. P51700005549


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

Ld. Adv. Godfrey Pimenta appeared for the complainants.
Ld. Adv. Anwar Landage appeared for the respondent.


INTERIM ORDER


(Friday, 13th September 2024)

(Through Video Conferencing)


1. The complainants above named have filed this online complaint before the
MahaRERA on 06-02-2022 seeking directions from MahaRERA to the respondent –
promoter for possession along with interest and compensation (as prescribed
under the provisions of the Real Estate (Regulation & Development) Act, 2016
(hereinafter referred to as ‘RERA’) in respect of the booking of a flat bearing no.
501 of the respondent – promoter’s registered project known as “IRA PEARL”
bearing MahaRERA registration no. P51700005549 located at Nerul, Navi Mumbai.

2. This complaint was heard by the MahaRERA on merits on several occasions and
the same was heard finally on 15-05-2024 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 the said hearing


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and they were also informed to file their written submissions if any. Accordingly,
the parties appeared for the hearing as per their appearances recorded in the
Roznama and made their respective submissions.

3. After hearing the arguments of the parties, as per their appearance, the following
Roznamas were recorded in this complaint –
On 27-03-2024
“Both the parties are present. The complainant has on 19-03-2024 uploaded an
application for amendment of the complaint from ‘Possession along with interest and
compensation for delay’ to ‘Refund along with interest and compensation for delay’.
Therefore, the respondent may file its reply to the amendment application and the
substantive issues raised by the complainant in the said amendment application. The
respondent may do so within a period of 3 weeks i.e. by 17-04-2024. Further 2 weeks’ time
i.e. till 01-05-2024 is granted to the complainant to file a rejoinder to the reply of the
respondent. The matter is adjourned to a suitable date after 01-05-2024 for further hearing.
List the matter for next hearing on 15-05-2024.”

On 15-05-2024
“Both the parties are present. Although the respondent was directed to file a reply to
the amendment application as well as substantive issue in the complaint, the respondent
insists that at the outset the amended application has to be decided, amended copy of the
complaint has to be served upon the respondent and then only the matter may be kept for
argument on the issue of refund along with interest and compensation for delay. The
complainants have pointed out the history vide which this agreement for sale was signed.
The complainant has also contended that as recorded in the roznama of 21-9-2023, the
project is delayed as the respondent is unable to make the lease payment to the CIDCO.
Although the respondent is claiming that the project is 95% complete, the OC has still not
been received. Therefore the complainants wish to change their prayers from ‘possession
along with interest and compensation’ to ‘refund along with interest and compensation for
delay’. The respondent has refuted the contentions of the complainants and avers that the


Complaint No. CC006000000209929


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complainants are defaulters as they have made only 60% payments whereas the project is
95% complete. Therefore, the respondent contends that being defaulters, the complainants
cannot seek any equity. Moreover, the question of amending the complaint does not arise.
In view of the above, both sides may file written submissions on the issue of amendment of
complaint within a period of one week i.e. by 22-5-2024. The matter is reserved for orders
on the issue of amendment suitably after 22-5-2024 based on the reply, rejoinder and written
submissions. The future course of action in the complaint will be decided once the order on
the amendment is issued.”

4. The complainants have filed this complaint before the MahaRERA initially seeking
possession of the said flat along with interest and compensation under section 18 of
the RERA in the respondent’s said registered project. However, during the course
of the hearing, the complainants on 19-03-2024 have filed an amendment
application on the record of the MahaRERA wherein the complainants have
submitted that due to uncertainties in completion of the said project, the possession
of the said flat was delayed for many years and as on date the respondent has
mentioned the revised date of completion of this project as 31-01-2026 which is not
acceptable to them. Further, there was no certainty that due to the ongoing
litigation, the respondent will be able to complete the said project and it is unlikely
to be resolved in near future. Therefore, the complainants prayed that they wished
to withdraw from the said project, seeking refund of the entire amounts paid by
them along with the taxes paid along with interest and compensation.

5. The respondent on 18-04-2024 uploaded its reply to the application for amendment
filed by the complainants on the records of the MahaRERA. It has submitted that
the said application is devoid of facts and not maintainable in law. The respondent
stated that the complainants in the said application for amendment are guilty of
'suppressio veri or suggestio falsi' and hence, the same is liable to be dismissed. It
has also stated that earlier the complainants had filed a complaint bearing no.
CC006000000022899 before the MahaRERA seeking reliefs under section 13 of the


Complaint No. CC006000000209929


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RERA. The said complaint was decided by the MahaRERA vide an order dated 20-
04-2018. As per the said order, the registered agreement sale was executed between
the parties on 30-03-2021. As per the said agreement, complainants have agreed to
purchase the above said flat for the price of Rs.1,00,00,000/- out of which the
complainants paid the sum of Rs.60,00,000/- out of the consideration amount
leaving thereby Rs. 60,03,000/- (as per the respondent) as the balance to be paid as
per the schedule of the payment annexed to the said agreement for sale. The
respondent further stated that 95% work of the said building was completed in the
said flat, leaving balance thereof of Rs 53,34,750 /- on the day as due and payable
by the complainants excluding 5% of Rs 6,68,250/- payable at the time of
possession. It was also agreed in the said agreement for sale (under clause no. 5(ii))
that without prejudice to the right of respondent to charge interest @ 18%, if the
complainants fail to make the payment of balance amount of consideration with
other payment as agreed therein as due and payable by them to it within 45 days
from the date hereof then the said agreement for sale shall stand terminated ipso
facto without any further reference or communication to the complainant-allottees.
However, as the complainants failed to make further payment as per the said
agreement, the respondent terminated the said agreement for sale on 20-12-2021
and subsequently refunded the balance amount after deductions vide cheque dated
25-12-2021 drawn on HDFC bank in complainants’ favour. It was further submitted
by the respondent that there is continuing cause of action thus there does not arise
any scope of refund along with interest u/s 18 of the RERA. The present application
was nothing but for changing the entire nature and scope of the complaint filed by
the complainants. At the initial stage if the prayers sought in the amendment
application were to be considered, then it would be appropriate for the
complainants to file a separate new complaint as the amendment which was sought
not only changes the nature of the complaint but also changes the scope of the
authority while considering the complaint u/s 18 of the RERA. The respondent
further submitted that there were two events viz first event where the flat purchaser


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decides to stay with the project and seeks interest on delay in possession and the
second is where the flat purchaser decides to exit from the project and seeks refund
along with interest. The consideration for both prayers are different. If the flat
purchaser intends to exit from the project, then he must point out that there is any
breach of the registered agreement for sale entered into between the parties.
Admittedly when the earlier complaint was filed there was no breach of the
agreement for sale as there was no agreement and the respondent agreed to execute
registered agreement for sale. It was further submitted that if the present
amendment is sought on the basis of executed registered agreement for sale, then
there is a separate cause of action for the complainants for which they are required
to file separate complaint and not present amendment application and on this
ground, alone the present amendment application deserves to be dismissed with
cost. The respondent lastly submitted that the complainants had filed the present
amendment application seeking change in prayer. Thus, in view of above
contentions the respondent submitted that the said amendment application to add
the prayer for seeking refund along with interest in the aforesaid complaint be
dismissed with cost.

6. The complainants on 26-04-2024 uploaded their rejoinder on the record of the
MahaRERA, stating that, they had initially filed the complaint upon the failure of
the respondent to honour the contractual terms of the said agreement dated 31-12-
2020 by providing approved plan of the said flat and also to provide latest CC to
enable the complainants to procure the housing loan and that notice of termination
dated 20-12-2021 issued by the respondent be declared null and void. The
complainants further replied to the respondent’s contentions in a para-wise
manner. In addition to that due to inordinate delay in execution of the said project
despite lapse of 11 years from the date of initial booking, the construction had not
progressed. Further, there was a show cause notice issued by CIDCO for non-
payment of statutory charges including non-approval of the amended plan. In any


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case the said flat has been illegally sublet by the respondent to a third party without
the knowledge and consent of the complainants. The said fact was also recorded by
the MahaRERA in Roznama dated 21-09-2023. With regard to the completion of the
said project, the complainants submitted that, as per respondent’s own admission (
the work completed as uploaded on the MahaRERA website) the percentage of the
work in case of excavation up to stilt floor was 100% and rest of all works was just
70%. It was further submitted by the complainants that, as far as the payment clause
5(ii) of the said agreement is concerned, the payment was subject to the respondent
sharing the necessary documents to enable the complainants to avail the housing
loan from the financial institution. However, the respondent failed to provide the
necessary documents for processing the loan. In terms of section 19 of the RERA,
mutual obligations have been cast for both the promoter as well as allottee which
includes submission of necessary documents by the developer and payment is
linked to progress of the construction in accordance with the sanctioned plan. The
respondent had submitted amended plans for the building (in which the said flat
was situated) on 25-05-2016 to NMMC/CIDCO and the approval was still awaited.
Further, in the complainant’s RTI application dated 03-08-2022, to NMMC/CIDCO
the NMMC replied that the said building project does not have OC as well the
changes made at floor nos. 3,4 and 5 have not been approved by NMMC. Further,
the respondent admitted the difficulties in completion of the said project due to civil
aviation NOC issue and lease premium demand raised by the CIDCO, resulting in
show cause notice issued by the CIDCO.

7. The complainants, on 21-05-2024 also uploaded their written submissions on the
record of the MahaRERA, wherein they have reiterated the submissions as
mentioned hereinabove.

8. The MahaRERA has examined the rival submissions made by both the parties on
the issue of amendment application filed by the complainants herein before the


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MahaRERA on 19-03-2024 and also perused the available record. The complainants
claiming to be the allottees by filing this complaint before the MahaRERA under
section 31 of the RERA have approached the MahaRERA mainly seeking following
reliefs under the provisions of the RERA:-
“a) the Respondent be directed to honour the contractual terms of the said
Agreement for Sale dated 31.12.2020 by providing approved of the plan for
the said flat No.501 and also to provide latest CC to enable the
Complainants to procure the housing loan;
b) The Notice of Termination dated 20.12.2021, issued by the Respondent to
the Complainants be declared null and void;
c) the Respondent be directed to pay compensation for mental torture and
agony quantified at Rs.1,00,00,000/- (Rupees One Crores only);
d) For cost of this complaint be provided for;
e) Such other and further reliefs as deem fit.

9. The record shows that the complainants herein had earlier filed a
complaint no.
CC006000000022899
before the MahaRERA on 30-01-2018 seeking reliefs under
section 13 of the RERA. The said complaint was heard by the Hon’ble Erstwhile
Chairperson/MahaRERA and accordingly, a

FINAL ORDER

came to be passed on 20-
04-2018. The said order reads as under:
“In view of the above facts, the parties, if the complainant is willing to continue in
the said project! are directed to execute the agreement for sale as per the provisions
of section 13 of the Real Estate (Regulation and Development) Act, 2016 and the
rules and regulations made thereunder within 30 days from the date of this Order.
The draft of the agreement should clearly mention the charges to be paid by
Complainant which are over and above the consideration price o{ the apartment,
in order for the Complainant to make an informed decision”.

10. Pursuant to the aforesaid order dated 20-04-2018, it appears that both the parties
have executed the said agreement for sale dated 30-12-2020 (registered on 31-03-


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2021). On bare perusal of the said agreement for sale, it seems that the said flat was
booked for a total consideration amount of Rs. 1,00,00,000/- out of which, the
complainants have paid an amount of Rs. 60,00,000/- and the remaining amount
was to be paid as per the payment schedule mentioned in the said agreement for
sale. However, it seems that alleging the non-payment of outstanding dues by the
complainants as per the stage of the construction, the respondent has issued the
termination notice dated 20-12-2021 to the complainants herein. However, being
aggrieved by the said action on the part of the respondent, the complainants have
filed this complaint seeking the reliefs as stated hereinabove.

11. However, during the pendency of this complaint, the complainants on 19-03-2024,
have filed an amendment application before the MahaRERA mainly changing the
reliefs from “possession along with interest and compensation” to “refund along
with interest and compensation”. Vide the said application, the complainants have
mainly contended that the respondent has revised the date of completion of this
project to 31-01-2026, which is not acceptable to them. They further contended that
the project got delayed mainly due to the non-payment of lease premium to CIDCO
and although the project is 95% complete the OC has still not obtained by the
respondent. Hence, on these grounds, they stated that they may be allowed to
withdraw from the project and to seek refund along with interest and
compensation.

12. The aforesaid application for amendment filed by the complainants has been
assailed by the respondent by filing its detailed reply on record of MahaRERA. The
respondent has objected to the said amendment sought by the complainants mainly
on the ground that the present complaint filed by the complainants is by supressing
the material fact that they are the defaulters and have failed to make the stage wise
payment. It has also stated that although the project is 95% complete, the
complainants have paid only 60% of the total consideration of Rs. 1,00,00,000/-. It


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has therefore stated that the complainants being defaulters cannot seek any equity
from the MahaRERA. Further, due to non-payment of the outstanding dues, it has
already terminated the said agreement for sale vide termination letter dated 20-12-
2021 and has also issued the refund cheques. Hence, it has stated that there is no
scope for allowing the said amendment application filed by the complainants.

13. On analytic consideration of submissions made by both the parties as well as the
record, the MahaRERA has prima facie noticed that the amendment sought by the
complainants is nothing but ancillary to the main reliefs sought by them in the
present complaint, ostensibly filed for directions to the respondent promoter to
adhere to the contractual terms of the said agreement for sale dated 31.12.2020
(registered on 31-03-2021) and also for setting aside the termination letter dated 21-
12-2021 issued by the respondent promoter for cancellation of the said agreement
for sale. Admittedly, the respondent has already terminated the said agreement for
sale vide the aforesaid termination notice dated 21-12-2021 (which is under
challenge in this complaint). However, by filing this amendment application, the
complainants herein are impliedly seeking cancellation of the said agreement for
sale dated 31-12-2020 (registered on 31-03-2021). Meaning thereby, the plea taken
by the respondent in its reply for termination of the said agreement for sale due to
default on the part of the complainants and the stand taken by these complainants
in the said amendment also leads to cancellation of the said agreement for sale.
Hence, the MahaRERA is not inclined to accept the submissions of the respondent
that the said amendment changes the very nature of this complaint and hence, there
is no scope to allow the said amendment.

14. In this regard, the MahaRERA has perused the provision of section 38 of the RERA,
which reads as under:

38. (1) The Authority shall have powers to impose penalty or interest,
in regard to any contravention of obligations cast upon the promoters,


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the allottees and the real estate agents, under this Act or the rules and
the regulations made thereunder.
(2) The Authority shall be guided by the principles of natural justice
and, subject to the other provisions of this Act and the rules made
thereunder, the Authority shall have powers to regulate its own
procedure.
(3) Where an issue is raised relating to agreement, action, omission,
practice, or procedure that—(a) has an appreciable prevention,
restriction, or distortion of competition in connection with the
development of a real estate project; or (b) has effect of market power of
monopoly situation being abused for affecting interest of allottees
adversely, then the Authority, may Suo motu, make reference in respect
of such issue to the Competition Commission of India.”

15. The aforesaid provision of section 38(2) provides that the MahaRERA has power
to regulate its own procedure in compliance of principles of natural justice.
Hence, if such power can be exercised by MahaRERA, in that event, the
MahaRERA has power to consider the said amendment application filed by the
complainants suo-moto on merits without considering the issues raised by the
respondent. Needless to state here that even after allowing the said amendment
sought by the complainants, the MahaRERA has to decide the said amended
complaint on its own merits, by granting an opportunity of hearing to both the
parties.

16. In view of the aforesaid explicit provision under RERA, the MahaRERA does not
find any merits in the objections raised by the respondent with regard to merits
of the amendment applications. Hence, the said amendment sought by these
complainants is allowed.


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17. In view of the above, the complainants are directed to amend this complainant
by changing the reliefs from” possession along with interest and
compensation” to “refund along with interest and compensation” in the
prayer clause within a period of one week from the date of receipt of this order
and serve the copy thereof to the respondent within a further period of one
week. On receipt thereof, the respondent may file its additional reply/written
submissions with respect to the amended prayer of the complainants within a
further period of two weeks.

18. With these directions, the amendment application filed by the complainants
on 19-03-2024 stands disposed of.

19. The Registry of this Bench is directed to list this complaint for next hearing on
23-10-2024. Both the parties are directed to comply with the directions issued
at above.


(Mahesh Pathak)

Member – 1/MahaRERA