Comp. C006000000220810
BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY
AUTHORITY, MUMBAI

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


Complaint No. CC006000000220810

1. Mukesh Jagubhai Sonavia

2. Dinesh Jagubhai Sonavia
..Complainant/s

Vs

1. Man Global Limited

2. Nikhil Rameshchandra Mansukhani

3. Vishal L Khatri

..Respondent/s

MahaRERA Project Registration No. P51700008395


O R D E R
On Preliminary objection to complaint

(21.01.2025)
(Date of Hearing: 06.11.2024)

Coram: Shri. Ravindra Deshpande, Hon’ble Member 2, MahaRERA

Adv. Geeta Gavali for complainants/s
Adv. Avinash Undhare for Respondent/s

1. ​
Respondent no. 1 has filed preliminary objection to complaint. In short facts
of application is as under:

2. ​
It is the contention of the respondent no. 1 that, the respondent no. 1 had
obtained occupation certificate on 7th May, 2019 In respect of project in which there
is suit flat. The respondent addressed email / letters to the complainant informing
about obtaining occupation certificate to register the agreement for sale, demanding
the balance consideration and other charges and also offering possession of the flat
301 from the building no. 2, i.e. suit flat.

3. ​
Section 15 (10) of Real Estate (Regulations and Development) Act, 2016
states that the allottees had to take possession within a period of two months from
the date of possession offered by the promoter builder. In the present case, the
respondent was diligent in offering possession of the suit flat to the complainant
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within 20 days from receipt of the occupation dated 07.05.2019. The complaint has
been filed in March, 2022 which is almost expiring of 3 years after the complainant
has already been offered possession.

4. ​
Section 18 of Real Estate (Regulations and Development) Act, 2016 states that
if the promoter fails to give possession of the suit flat, plot, apartment as the case
may be as agreed then, allottee can invoke the possession of the said Section. The
possession of the suit flat has already been offered to the complainants on

23. 05.2019.

5. ​
As per Section 31 of Real Estate (Regulations and Development) Act, 2016,
complaint can be filed only when there has been violation of the provisions of Real
Estate (Regulations and Development) Act, 2016 or the Rules and Regulations made
there under against the promoter, allottee or real estate agent as the case may be.
There has been no violation as on date so far as Section 18 or any other provisions
of he said Act is concerned.

6. ​
According to the respondent, the complainants have approached this
Authority with malafide intentions and unclean hands. The respondents have
informed and intimated the complainants without any delay or every stage
whether it is obtaining permission from government Authority for complainant’s
flat and or registration of document and payment of outstanding and/or
possession by addressing an email, alongwith documents, acted in diligence as
respondent wanted to complete transaction of suit flat as it will alleviate the
mounting losses and it is prayed that this Authority be pleased to dismiss the
complaint filed by the complainants for the above mentioned genuine reasons
which were beyond the control of the respondent and pass appropriate order to
dismiss the present complaint. It is also contended that in so many cases, this
Authority has dismissed complaints filed after Occupation Certificate was received
and possession of the suit flat was already offered and complainant has belatedly
filed thereafter.

7. ​
It is also contention of the respondents that this Authority need not exercise
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its jurisdiction in cases where the party has conveniently slept over her rights.
The remedy under Section 18 was brought into the force on 01.05.2017 the
complainants did not exercise its remedy for almost five years even after the
aforesaid Section was brought into the force. The present complaint is filed
without there being any cause of action for filing the same, as the cause of action
for filing the complaint came to an end on 23.05.2019 and a complaint without any
cause of action is not maintainable and cannot be entertained by this Authority,
without prejudice, the complainant’s right to invoke Section 18 of the above Act
exist only and there has been failure to handover possession and not after possession
has been offered. In the above circumstances, the present complaint ought to be
dismissed with heavy cost.

8. ​
The complainants have filed reply and resisted the present application. It is
the defence of the complainants that the application as filed by the respondents is
illegal, improper and bad in law. The contents of the said application is totally false,
frivolous and concocted therefore, the said application is strongly opposed by the
complainants. The respondent has filed present application only to delay the
proceedings and abuse the process of the court and hence not maintainable under
the provisions of Law.

9. ​
The complainants have denied the contents of para no. 1 of the application
of the respondent. According to the complainants, the respondent no. 2 was the
Director of the respondent no. 1 and the respondent no. 3 was the Power of
Attorney holder of the respondent no. 1 through whom the registered agreement for
dated 28.10.2013 was duly executed and registered before the sub-registrar, Thane
10 between the complainants and the respondent. The respondent nos. 2 and 3 are
the necessary parties of the said complaint. Hence, the complainants have objected
to delete the names of the respondent nos. 2 and 3. According to the complainants,
the complaint filed by them is well within limitation. The complainants have
denied the contents from para no. 3 of the application.

10. ​
The complainants
have denied the contents from para no. 5
of the
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Comp. C006000000220810
application. According to the complainants, as per the registered agreement for sale
between them and the respondents dated 28.10.2013, the respondents was to
supposed to handover possession of the suit flat vide its clause no. 17 of the said
agreement on or before June, 2015 with entitlement of grace period of six months
beyond the aforesaid period. The respondents failed to give possession of the suit
flat till 2019 inspite of several requests by the complainants.

11. ​
According to the complainants, from 2016 till 2019 the respondent delayed to
give possession without assigning any single reason or any written communication
with the complainants of any forcible circumstances for delaying the possession
and ultimately handed over physical possession of the suit flat on 20.02.2020 after
rescheduling the same number of times.
The complainants have denied the
contents of para no. 5 (iii) of the application of the respondent. It has been denied
by the complainants that the respondent was diligent in offering physical
possession of the suit flat to the complainants within 20 days from receipt of the
Occupation Certificate dated 07.05.2019. The complainants have denied the
contents of para no. 5(iv), (v) and (vi) of the application of the respondents. The
present complaint is filed by the complainants for the directions against the
respondents to pay Rs.15,000/- per month as set off/compensation as assured and
promised by the respondents to the complainants from July, 2015 till February, 2020
alongwith interest till the realisation as the respondents caused delayed in giving
possession of the suit flat to the complainants, for allotment of car parking space as
per the letter of allotment, refund of fitout deposit of Rs.25,000/- with interest and
Rs.10,00,000/-
towards compensation
for loss and agony suffered by the
complainants on account of deprivation harassment and mental agony caused by
the negligence and dereliction of duty by the respondent. The present complaint is
filed by the complainants when the cause of action firstly arose in the year 2020
when the respondents handed over possession of the suit flat without any set
off/reimbursement against receivable as assured by the respondents and failed to
handover car parking space as per allotment letter.
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Comp. C006000000220810

12. ​
The complainants have denied the contents of para no. 6 and 7 of the
application to the extent that the complainants were informed that the same was
rental housing project of the MMRDA which entailed construction of rental
component to be handed over free of costs to the MMRDA against which the
respondent was allowed to construct the freesale component to be sold in the open
market and hence, the respondent be put to the strict proof thereof. The
complainants have denied the contents of para no. 9 to 26 of the application. The
complainants have also denied contents of para no. 27 and 28 of the application.
According to the complainants, the prayers made in para no. 34 of the application of
the respondent is absolutely illegal, illogical, false, frivolous, vexatious and not
tenable and sought with view to delay the proceeding and harass the complainants.
Hence, lastly the complainants have requested for rejection of the application.

13. ​
The advocate of the original complainant uploaded written notes of
arguments on 21.11.2024. However, the advocate of the respondent has not
uploaded written arguments. The advocates of original complainants reiterated and
repeated the contents of reply in their written arguments. I have gone through the
same. According to the complainants, the present application is filed by the
respondent only to delay the proceedings. The contents of the application are false
and frivolous, without any basis and evidence, therefore, the said application of the
respondents is liable to be dismissed with heavy cost. It is submitted that
respondent no. 2 was then director of the respondent no. 1 and the respondent no.3
was the power of attorney holder of the respondent no. 1 through whom the
registered agreement for sale dated 28.10.2013 was duly executed and registered
before the sub-registrar Thane 10 between the complainants and the respondent. As
both the respondent nos. 2 and 3 worked as representative of the respondent no. 1 of
the relevant time and therefore, the respondent nos. 2 and 3 are the necessary
parties of the said complaint and contents of the application for deletion of names of
said respondent nos. 2 and 3 strongly objected by the complainants. The complaint
filed by the complainants is well within a period of limitations. The complaint is
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filed by the complainants for the relief of directions against the respondents to pay
Rs.15,000/- p.m. as set off/compensation as assured and promised by the
respondents to the complainants from July, 2015 till Feb. 2020 alongwith interest
till its realisation as the respondents caused delay in giving possession of the suit
flat to the complainants, for allotment of car parking space as per letter of allotment,
refund of fitout deposit of Rs.25,000/- with interest and Rs.10,00,000/- towards
compensation for loss and injury suffered by the complainants on account of
deprivations, harassment, and mental agony caused by the negligence and
dereliction of duty by the respondent.

14. ​
It is submitted on behalf of complainants that present complaint is filed for
compensation and allotment of car parking space as per allotment letter, the
complainant is not seeking any relief regarding possession of the suit flat. It is
clearly mentioned in the arguments that the complainants received possession of the
flat in the year 2020.

15. ​
It is main contention of the respondent that on 07.05.2019 the respondent
received occupation certificate in respect of project in which there is a suit flat.
Thereafter the respondents addressed a letter to complainants informing about
completion certificate and also offered possession of the suit flat. The respondent
was diligent in offering possession of the suit flat to the complainants within 20 days
from receipt of the OC. The respondent offered the possession to the complainants.
It is main contention of the respondent that present complaint has been filed in
March, 2022 which is almost expiry of three years after respondent offered
possession of the suit flat to the complainants and hence according to the
respondents the present complaint is not maintainable. It is also contention of the
respondents Section 18 of RERA Act, states that if the promoter fails to give
possession of the suit flat as agreed, then allottee can invoke the provisions of Section
18 of RERA Act. There is no any violation of the provisions of the RERA Act or the
Rules and Regulations made thereunder by the promoter. Hence, present complaint
is not maintainable.
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Comp. C006000000220810

16. ​
I have gone through the complaint uploaded by the complainants which
shows that the complainants mentioned in the complaint that there was delay of five
to six years by the respondents for handing over possession of the suit flat.
According to the complainants the respondent agreed to hand over possession in the
year 2015 itself however, respondent handed over the same to the complainants in
the Month of February, 2020 and not refunded fitout deposit of Rs.25,000/-. It is also
contention of the complainants in the complaint that on 30.05.2016, the respondents
informed to the complainants that the respondent will handover possession of the
flat by 31.12.2016 and in case of any delay for handing over possession the
respondent will give reimbursement / set off against receivables / compensation
and same will be effected for two BHK, Rs.15,000/- per month from 01.01.2017. The
complainants in prayer clause of complaint stated that he is seeking direction against
the respondent to pay Rs.15,000/- per month as set off / compensation as assured
by the respondent to the complaints. From July,2015 till February, 2020 alongwith
interest and also requesting for direction to the respondent to allot car parking as per
allotment letter. Considering the prayers from the complaint, in my opinion on the
basis of contentions raised by the respondent in the application at this stage, the
present complaint cannot be dismissed. Hence, in my opinion, the application
uploaded by the respondent deserves to be rejected.
O R D E R

1. ​ The application is rejected.

2. ​ Costs in cause.


(Ravindra Deshpande)
Member 2, MahaRERA
Date : 21.01.2025
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RAVINDRA
PADMAKARAO
DESHPANDE
Digitally signed by
RAVINDRA PADMAKARAO
DESHPANDE
Date: 2025.01.21 11:16:52
+05'30'