Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 1 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY
MUMBAI

Complaint No. CC006000000261968

1. Garima Mishra

2. Akshay Gupta


... Complainants

Versus

1. Rajsanket International Limited

2. Macrotech Developers Ltd.

3. ICICI Bank Ltd.


... Respondents


MahaRERA Project Registration No. P51800012243


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


Ld. Adv. Manan Sharma appeared for the complainants.
Ld. Adv. Khursheed appeared for the respondent no. 1
Ld. Adv. Smita Sharma appeared for respondent no. 2
None appeared for the respondent no. 3


ORDER
(Monday, 13th September 2024)

(Through Video Conferencing)


1. The complainants above named have filed this complaint on 01-08-2022, seeking
directions from MahaRERA to the respondent respondents to direct the
respondents to pay interest and compensation for delay in possession, to direct
respondent no. 3 to refund the amount paid in the pre-EMI interest or direct


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 2 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

respondents nos. 1 and 2 to adjust the pre-EMI interest paid by the complainants
against the balance consideration amount in respect of the said flat, to direct
respondent no. 3 to stop the demand letters for payment of pre-EMI interest under
the subvention scheme, to furnish complainants with all the documents entered into
between respondents nos. 1 and 2, to direct respondents nos. 1 and 2 to clear the
outstanding dues of the bank about the said flat, legal cost 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 Flat No. 410 on the 4th floor in
wing ‘B’ in the respondent’s registered project known as “RAJINFINIA PHASE II
WING A WING B WING C” situated at Malad West, Borivali.

2. This complaint was heard by the MahaRERA on several occasions as per the
Standard Operating Procedure dated 12-06-2020 issued by MahaRERA for hearing
the complaint 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 parties appeared for the hearing and made
their said submissions. MahaRERA heard the submissions of the parties and also
perused the available records.

3. After hearing the submissions made by the parties, the following roznama were
recorded in this complaint:-
On 02-03-2023
“ All the parties are present.
The complainants in the complaints at Sr. Nos. 13 to 22 (except in Sr No. 14 i.e.

complaint No. CC006000000261964
) have prayed for possession of their
flats, interest for delay, reimbursement of pre-EMI interest, as well as interest
on pre EMI payments. The complainant in the complaint at Sr. No. 14 requests
for refund along with interest for delay, reimbursement of pre EMI interest as
well as interest on the pre EMI payments as he wishes to withdraw from the


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 3 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

project.
Admittedly, the project was delayed as the agreements for sale were signed long
back. However, the project is still incomplete and admittedly there is no date
of possession mentioned in any of the agreements for sale. Therefore, the
complainants have argued that as per MOFA (most of the agreements for sale
have been signed prior to the commencement of the RERA- except Sr. No.13), a
reasonable period of 3 years can be considered as the date for completion of the
project as per case law. Therefore, though the complainants want to continue
in the project, they seek possession along with reimbursement of the pre - EMI
interest paid and interest on such pre - EMIs amounts (except Sr. No. 14).
Admittedly, the pre - EMI interest has not been paid after 31-05-2019 or such
other dates as applicable to each of the complainant. Therefore, the respondent
no. 1 has claimed that it has informed the complainants about the difficulties
regarding the completion of the project as well as payment of the pre EMI
interest. Further, the respondent no. 1 has contended that there is delay in filing
of these complaints since even after RERA came into force, the complainants
chose not to raise a dispute for more than 5 years. Therefore, such requests and
prayers after inordinate delay are not tenable as per the respondent no. 1.
Further, the respondent no. 2 contended that it has no role as far as the
payments of the pre EMI or interest for the delayed possession is concerned, as
it is squarely the responsibility of the respondent no. 1. However, the
complainants seek the details and documents of the roles and responsibility of
the respondent no. 2 i.e., development/construction management agreement
signed between respondent no. 1 and respondent no. 2. The respondent no. 3
which is the Bank (financial institution) by virtue of tri - partite agreement
between the complainant - allottees, the respondent no. 1 and the bank has
prayed that it has no role as far as completion of the project is concerned or for
the interest for the delayed possession. However, the respondent no. 3 has also
pointed out that despite the respondent no. 1 - not continuing the payments of
pre EMIs, the allottees have been regularly repaying the pre EMIs (except Sr.


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 4 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

Nos. 14 and 15).
The MahaRERA has pointed out to all the parties that there are 2 orders issued
regarding the same project with the same MahaRERA project registration
number on 25-03-2022 with respect to similarly placed allottees. Both the
orders deal with both the possibilities i.e., continuing in the project as well as
withdrawal from the project with a refund. The said order is visible in the
project registration and all the parties are directed to file their written
submissions specifically on the point as to why the said order should not be
made applicable to them.
The respondents have filed replies in the complaints. Therefore, the
complainants are granted three weeks’ time i.e. till 23-03-2023 to file their
rejoinder to the reply of the respondents along with their written arguments.
Further two weeks’ time i.e. till 07-04-2023 is granted to the respondents to file
sur - rejoinder (if any) and their written arguments in the complaints. It is
expected that all the parties will answer the issues raised by the MahaRERA.
Further, the complainants in the complaints at Sr. Nos. 14 and 15 have pointed
out that the respondent no. 3 has invoked the proceeding under the SARFAESI
Act for the default in making payments of Pre EMIs. Therefore,
the complainants in the said complaints ( Sr. No. 14 - CC006000000261964 and
Sr. No. 15 - CC006000000261968) have prayed that the said action of the
respondent no. 3 be stayed in the interim. However, it is directed that the
respondent no. 3 may not take coercive measures against the said complainant
- allottees, however, regular recovery may be done.
The matters are reserved for order suitably after 07-04-2023 based on the
arguments made today, reply, rejoinder, sur - rejoinder and written arguments
of all the sides.”

On 27-07-2023
“All the parties are present. This matter has been fixed for hearing today vide an


INTERIM ORDER

dated 16-06-2023 passed in this complaint on the application filed


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 5 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

by the complainant. The complaint was reserved for orders on 02-03-2023 after all
the pleadings were complete and the parties had argued the matter. However, on
15-03-2023 the complainant filed a purshis dated 08-03-2023 seeking
modification/amendment of the prayers sought in the complaint from “possession
along with interest and compensation” to “refund along with interest and
compensation for the delay”. Therefore, this matter has been kept for decision
whether the said amendment may be allowed and the matter may be heard afresh
on changed prayers. Accordingly, the respondents may file their reply on the said
application for the amendment filed by the complainant and the complainant may
serve the said application on all the respondents within a period of one week i.e.
by 03-08-2023. Further 3 weeks’ time i.e. till 24-08-2023 is granted to the
respondents to file their reply to the amendment application along with their
written arguments. Further one week’s time i.e. till 31-08-2023 is granted to the
complainant to file a rejoinder to the said replies along with his written
arguments. This matter is reserved for orders on the issue of whether to allow the
said amendment or not suitably after 31-08-2023 based on the arguments of both
the sides as well as reply, rejoinder and written arguments filed in the complaint.
The future course of action in the matter would be decided once the order on the
amendment is issued.”

4. Accordingly, two interim orders came to be passed on 16-06-2023 and 1-09-2023 in
this complaint. The said orders read as under:-
i)Order dated 16-06-2023:-
“4.In the present case from the record, it appears that this complaint was heard along with
other connected complaints of this project and same was closed for order on 02-03-2023 with
the directions to both the parties to file their rejoinder /sur-rejoinder along with their written
arguments on record of MahaRERA till 07-04-2023.

5. However, subsequently, on 15-03-2023, the complainants have filed the praecipe for
amendment dated 08-03-2023 in this complaint on record of MahaRERA mainly seeking
modifications in the prayers sought in this complaint from “possession along with interest


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 6 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

and compensation” to “refund along with interest”. In the said praecipe , the complainants
have not cited the reasons of such amendment sought by them, subsequent to the last date of
hearing i.e. 02-03- 2023.

6. The respondent No. 1 has also filed its written submission on record of MahaRERA on
17-04-2023 on the substantial issue raised by these complainants under section 18 of the
RERA as well as the refund sought by the complainants in this amendment application.
Thereby the respondent No. 1 promoter has opposed the said amended relief sought by the
complainants towards refund of the entire amount along with interest. .

7. From, these facts brought to the notice of MahaRERA, it appears that this is a subsequent
development brought to the notice of MahaRERA by the complainants. However, admittedly
this matter was reserved for order on 02-03-2023 and thereafter, this amendment
application/praecipe has been filed on record of MahaRERA. Hence, before deciding the
same, the MahaRERA felt it necessary that an opportunity of hearing to both the parties viz
the complainants and the respondents in compliance of principles of natural justice is
required to be granted. Moreover, the complainants have also requested to schedule the
hearing on the said amendment praecipe before allowing the same

8. In view of the above, the following order is passed:-
a. The roznama dated 02-03-2023 passed by the MahaRERA in this complaint is hereby re-
called.
b. This matter is adjourned to 27-07-2023 for hearing on the said amendment
application/praecipe filed by the complainants”.
ii) Order dated 1-09-2023:-
“4. However, it has brought to the notice of MahaRERA, that the complainants through
their advocate Mr. Manan Sharma have filed an application before the MahaRERA on 30-
08-2023 (in hard copy) seeking withdrawal of the amendment of prayers in the complaint
filed on 08-03-2023.

5. In view of the above, since the complainants are not willing to pursue the said
amendment application dated 08-03-2023 filed on record of MahaRERA for which this
complaint was restored for hearing vide an

INTERIM ORDER

dated 16-06-2023, the
MahaRERA prima facie feels that nothing survives in the said amendment application.


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 7 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

6. Consequently, the said amendment application dated 08-03-2023 stands disposed of as
withdrawn. The registry is directed to list this complaint for next hearing on merits
strictly as per seniority.

7. Accordingly, this complaint was heard by the MahaRERA finally on 7-05-2024 in
presence of all the parties concerned. After hearing the arguments of both parties,
the following Roznama was recorded in the complaint-
On 07-05-2024
“Both the parties are present. An

INTERIM ORDER

came to be issued on 01-09-2023
which was for the amendment in the complaint. However, the complainant has since
withdrawn the said amendment application. In fact, the matter was already reserved
for order on 02-03-2023 when the pleadings were completed. However, before the order
could be issued the said amendment application was filed by the complainant. Be that
as it may, now that the amendment application has been withdrawn, this matter is
reserved for orders suitably based on the pleadings of both the parties..”

8. Pursuant to the aforesaid direction the respondent no. 1 has uploaded its additional
written submissions on record of MahaRERA on 15-05-2024. The same has been
accepted and taken on record. The MahaRERA has perused the available record.

9. It is the case of complainants that they have purchased the said residential flat for a
total consideration of Rs.1,48,73,550/- under the respondent’s registered project. In
respect of the said flat, an agreement for sale dated 17-08-2013 was entered into
between the respondent no.1 and the complainants. However, no possession date was
mentioned in the agreement for sale in respect of complainants. They further stated
that they have availed of the subvention scheme and agreed to purchase the said flat
under the subvention scheme from respondent no.1 (developer). The subvention
scheme is a tripartite arrangement between respondent no.1, the complainants and the
ICICI Bank i.e. respondent no.3. The respondent made them understand that, under


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 8 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

the subvention scheme, the payments made by respondent no. 3 would be as a form
of loan which is disbursed to respondent no.1 who would, in turn, bear the interest
cost on loan paid to the respondent no.3 till the time of possession and after handing
over the possession of the said flat to them with OC, the EMI of the complainants
would initiate payment to the respondent no.3, wherein the complainants would save
interest cost till possession and therefore the complainants agreed to purchase the said
flat from the respondent no. 1. The complainants paid Rs.32,69,554/- (own
contribution) from their contribution. After that, respondent no. 1 defaulted in paying
interest to the respondent no. 3 and this was added to cost to the complainants. The
respondent no. 3 demanded Pre-EMI interest from the complainants though they were
not liable to pay any Pre–EMI interest until possession, they started paying the same
as non-payment of Pre – EMI interest would affect their credit score and hence they
have also paid the Pre – EMI interest as mentioned above to the respondent no. 3.
However, as per the agreement for sale it is crystal clear that the promoter would be
liable to pay pre-Emi interest to the bank till the possession was to be handed over to
them. The respondent no.1 has failed to pay the pre-EMI interest to the respondent
no. 3 since the year 2019 and in turn respondent no. 3 constantly pressurized the
complainants to pay the Pre-Emi interest failing which it will report to the CIBIL and
the credit rating of the complainants will be affected. After that, the complainants
received an email from respondent no.1 in which it admitted their liability to pay
interest and undertook inter alia adjusting the outstanding dues towards the balance
cost of the flat. Further, the complainants have challenged the illegality by the
respondent no. 3 to the National Consumer Dispute Commission, New Delhi. The said
NCLT, was pleased to pass an

INTERIM ORDER

dated 15.06.2020 in which following order
was passed: “till the next date of hearing, the opposite party (ICICI Bank) is directed
not to encash the cheques, if any, given by the complainants towards the repayment
of EMI.
As the bank has been directed no to encash the cheques given by the complainants
towards the repayment of the EMI, we deem fit appropriate and in the interest of


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 9 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

justice to direct the OP Bank not to proceed further in the pursuing to the loan Recall
Notices and Legal Notices and Legal Notices, if any as also from drawing the Pre-
EMIs from the bank account of the complainants pending resolution if the present
complaint. “

10. They further contended that there is hardly any work that was being carried out in the
said project which is anyway lagging behind the schedule time. They came to know
that respondent no. 2 (Lodha) had taken charge of the said project without giving any
knowledge to the complainants. They have been kept completely out of the loop and
the said project has been managed by respondent no.1 in a very haphazard manner.
The respondent no.1 has blatantly failed to act by the said agreement. It showed
complete incompetence, inability and insincerity to complete the project. They stated
that respondent no.1 defaulted in complying with their obligations and had delayed
handing over the possession of the said flat for more than 8 years. To support their
claim, the complainants have uploaded a copy of the agreement of sale, receipts,
ledger bank statements and correspondence received from respondent no.1. Hence,
being aggrieved by the said action on the part of the respondents, the complainants
prayed to direct the respondents to pay interest and compensation for delay in
possession, to direct respondent no. 3 to refund the amount paid in the pre-EMI
interest or direct respondents nos. 1 and 2 to adjust the pre-EMI interest paid by the
complainants against the balance consideration amount in respect of the said flat, to
direct respondent no. 3 to stop the demand letters for payment of pre-EMI interest
under the subvention scheme, to furnish complainants all the documents entered into
between respondent nos. 1 and 2, to direct the respondent nos. 1 and 2 to clear the
outstanding dues of the bank about the said flat, legal cost from the present
proceeding.

11. The respondent no. 1 viz. Rajsanket Realty Limited (formerly Rajsanket International
Limited) has uploaded its reply on record of the MahaRERA on 02-03-2023, submitting


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 10 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

that, as per the stipulated timelines, the construction of the said project was to be
completed in the year 2022. Thereafter, a suo-moto extension of the date of completion
of the said project was granted by MahaRERA upto 31-12-2023 in compliance with the
MahaRERA circulars dated 18-05-2020 and 06-08-2021 for extension of registration of
real estate projects. Further, the revised completion date for the said project as per the
MahaRERA portal is 29-12-2024. During the construction and development of the said
project, the respondent no. 1 suffered from severe financial turmoil and distress and
the progress of the said project was stalled. Thereafter, the financial situation of
respondent no. 1 was further adversely impacted due to the pandemic whereby a
nationwide lockdown was imposed which severely impacted the construction
activity, supply chain of construction materials, and availability of skilled and
unskilled personnel. Owing to respondent no. l's financial crisis, many of its group
companies / affiliates / subsidiaries were subjected to Insolvency and Bankruptcy
Code, 2016 before the Hon'ble National Company Law Tribunal. Multiple complaints
have been filed before the MahaRERA against the respondent no. 1 in relation to the
said project. Further, the respondent no. 1 in order to give a financial fillip to its
prospects and to achieve the completion of said project and thereby protect the interest
of all unit purchasers of the said project, availed loan/financial assistance to the tune
of approximately Rs. 236,00,00,000/- from its lender Induslnd Bank Limited. The
solitary purpose of undertaking such a humongous obligation was to resume
construction of the said project and endeavour to hand over possession of the units to
the respective purchasers at the earliest. In the wake of the aforesaid events and non-
completion of the said project, a letter dated 18-05-2022 was issued to MahaRERA
seeking an extension of the date of completion of the said project. Pursuant to this the
date of completion of the said project was duly extended to 29-12-2024. Further, the
Induslnd Bank Limited approached Macrotech Developers Limited i.e. respondent no.
2 and requested them to lend assistance in completing the construction of the said
project. In the emergent circumstances, respondent no.2 agreed to step in as a
construction manager to oversee the completion of the said project. The respondent


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 11 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

no. 2 in its capacity as construction manager of the said project, is already in the
process of completing of the said project. The respondent no. 1 stated that the
construction was in full swing, and the Occupation Certificate would be obtained
soon. The respondent no. 1 with great difficulty and battling adverse financial
situation had managed to resume the construction of the said project with the
assistance of its lenders. It had also availed and undertaken huge financial liabilities
with a view to protect the interests of numerous allottees distressed with the delayed
possession. The facilities availed by respondent no. 1 from its lenders are public
monies. The respondent no. 1 had undertaken the same with a benevolent view for
upholding the spirit of the RERA and safeguarding the interest of the allottees. It has
been categorically held by the Hon'ble Supreme Court in the matter of State of Tamil
Nadu vs. National South Indian River Interlinking Civil Appeal no. 6764 of 2021 that,
it is not possible to completely appreciate the law without reference to the policy
behind the law. Further, the respondent no. 1 had made all efforts to ensure that the
said project continues to be developed. RERA is not promulgated to help parties
extract monies from a project but aims to facilitate expeditious completion of projects
so that the allottees get their homes. The Induslnd Bank Loan was outstanding and
these being public monies disbursed with a view to achieve completion of the said
project which are liable to be repaid. It would result in gross miscarriage of justice and
violation of the doctrine of public policy if the public monies disbursed for the
completion of the said project are directed to be utilized to pay compensation and/or
interest to the allottees. Despite the genuine severe financial hardship being faced by
the respondent no. 1, it has made all bona Jide endeavours to continue the
development of the said project with a view to offer possession to all the allottees. The
respondent no. 1 further relied upon the

JUDGMENT

passed by the MahaRERA in the
matter of Mrs. Vijayshree Pandya vs Himanshu Shah-Prashanti Land Developers Pvt.
Ltd. bearing no.
Complaint No. CC006000000182019
, wherein the MahaRERA
categorically upheld the true spirit of the RERA by observing that:- " 18. Further,
although the RERA is enacted to protect the interest of the allottees in a real estate project,


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 12 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

simultaneously, the RERA is also concerned with the development of real estate projects. If the
MahaRERA thinks of only remedying the violation of the provisions of section 18 of the RERA
at this stage, it may put an unnecessary burden upon the association to pay the refund to the
complainants dt this stage, which may cause further delay in the completion of this project-".
Respondent no. 1 has demonstrated its bona fide intent in completing the said project
despite the adversities. It is well known that while construing beneficial legislation,
the interpretation thereof must be done in such a manner that advances the remedy
and removes the evil as held by the Hon'ble Patna High Court in the matter of M/S
Durga Oil Mills Ltd. vs. Agricultural Produce Marketing Board, Civil Writ No. 6039
of 1993. In the circumstances, the additional burden of the execution proceedings or
saddling respondent no 1 with penalties' interest or compensation liabilities would
not only burden respondent no. 1 but also jeopardize the said project and the fortune
of numerous innocent allottees. Therefore, it was in the interest of the said project as
well as the allottees that a humanitarian view is taken of the crisis faced by the
respondent no. 1. With regard to the complainant's grievance regarding subvention
scheme, the respondent no. 1 submitted that the complainants had availed a loan
under the subvention scheme and for those purposes had entered into a separate loan
agreement with the ICICI bank i.e. the respondent no. 3. The Act does not contemplate
deciding any dispute about a loan agreement and grant any relief in respect thereof.
On the contrary, the entire purport and operation of the Act is limited to any
agreement between the promoter and the allottee in respect of a unit. Therefore,
respondent no. 1 submitted that the MahaRERA has no authority to interfere in the
matters of loans taken by the home buyers as all loans are well covered under the
lending agreements executed between the parties and in case of any default, action
can be taken as per the loan/lending agreement. Lastly, in view of the submissions
mentioned earlier, respondent no. 1 prayed for the dismissal of the complaint.

12. The respondent no. 2 uploaded its reply on the record of the MahaRERA on 02-03-
2023, submitting that it was neither associated with the project nor does it have any


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 13 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

privity with the allottees of the said project. Hence, it is under no other obligation in
respect of the complaints filed before the MahaRERA by the allottees of the said
project. The submissions of respondent no. 2 regarding the delay and financial duress
were identical to the submissions of respondent no. 1. Furthermore, as respondent no.
2 agreed to step in as construction manager it has no privity with the allottees of the
said project. Therefore, respondent no. 2 prayed for the dismissal of the present
complaint.

13. The complainants filed their rejoinder to the reply of the respondent no.1 on record
of MahaRERA on 23-03-2023, denying every statement, averments, contentions, and
allegation made by respondent no. 1. They have stated that the said reply filed by the
respondent no. 1 is baseless, devoid of any merits and misconceived and thus he is
guilty of suppression veri and suggestion falsi. Due to mishandling the project, it has
failed to deliver the said flat. The complainants aver that their prayer is only
concerning the refund of Pre-EMI interest paid by them to respondent no.3 with
further interest on the Pre-EMI interest amount paid till date. As far as the issue of the
covid-19 pandemic, they have stated that it was cited by the respondent no. 1 just a
ruse to cover up the breaches committed by it and its defaults in paying pre-EMI
amount and interest to respondent no. 3 under subvention scheme. This complaint is
filed also for recovery of Pre EMI amounts along with interest and nothing would
prejudice to the right to sue the respondent nos. 1 and 2 for delay in possession as and
when the cause of action arose. raised. Further, they have not given any consent for
appointment of respondent no. 2 and it was a commercial call taken by the respondent
no. 1. The MahaRERA has granted extension owing to the Covid 19 and they have
not given any consent to that effect. The correspondence received from the respondent
no. 1 – clearly stated that the respondent no. 2 as “Development Managers” and “the
Project will henceforth be called Raj Infinia – managed by Lodha”. Being a
development manager - the respondent no. 2 was also liable to the complainants.
Further, there is not much progress and still many floors are required to be


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 14 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

constructed. They further stated that the contentions of the respondent no. 1
regarding the public policy should not be countenanced by the MahaRERA and the
same was not within its domain. They have relied upon the case of “Shabbir M
Hussain v/s Rajsanket Realty Ltd. & Anr order dated 28-01-2022 – Complaint no. –
CC006000000193572- wherein it is held that the respondent/ promoter alone is
responsible for payment of Bank dues and interest to the bank and not the allottees.
Therefore, the MahaRERA is bound by its previous precedents. To support their
claims, the complainants have annexed the judgments passed the MahaRERA in the
same project in favour of allottees.

14. The complainants had uploaded the application for amendment of the prayer on the
record of MahaRERA on 15-03-2023 seeking change of the prayer from “directing the
respondents to pay interest and compensation for delay in possession” to “refund the
amount paid in the pre-EMI interest or direct respondents nos. 1 and 2 to adjust the
pre-EMI interest paid by the complainants against the balance consideration amount
in respect of the said flat, to direct respondent no. 3 to stop the demand letters for
payment of pre-EMI interest under the subvention scheme, to furnish complainants
all the documents entered into between respondent nos. 1 and 2, to direct the
respondent nos. 1 and 2 to clear the outstanding dues of the bank about the said flat,
legal cost to refund entire amount along with interest.

15. The respondent no. 1 uploaded its written submissions on the record of the
MahaRERA on 17-04-2023, wherein the respondent submitted the list of the events in
a detailed manner and further disputed the maintainability of the complaint. The
respondent relied upon 63 of the said agreement “The Building proposed to be constructed
on the said property is expected to be completed and possession of the said flat/premises is
expected to be delivered by ______201_ subject however to the availability of Cement, Steel
and other building materials, electrical and/or other power connection, elevator, drainage and
water connection and subject to any Civil Commotion or any Act of God or any other natural


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 15 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

calamities or Act of State or Force Majeure or any act of enemy, war or law or ordinance
restraining sale of development of land or building material or labour strike or any litigation
or any objection of Municipal or other authorities or any other reason or circumstances
whatsoever beyond the control of the Promoters and in such event the time for completion of
the building and delivery of possession of the said flat/premises shall stand and be automatically
extended for such further time as the Promoters may determine under any circumstances the
Purchaser/s shall not be entitled to any damage whatsoever on account of delay or default in
giving possession of the said flat/premises.”. In view of the above, respondent no. 1 was
entitled to an extension of the possession date mentioned in the agreement on account
of multiple factors provided therein. Hence, owing to adverse conditions, largely
beyond the control of the respondent no. 1, which in turn severely affected the
financial situation of the respondent no. 1, the construction of the project has been
stalled since 2019. Furthermore, the complainants are permitted to claim interest
under Section 18 of RERA, however, it is barred and estopped from doing so for the
reasons that after filing the complaint, the complainants have chosen not to withdraw
from the project. The Hon’ble Apex Court in Union of India (UOI) and Ors. vs. N.
Murugesan and Ors., (2022) 2 SCC 25, had explained the law on acquiescence and
concept on approbate and reprobate. The Hon’ble Apex Court in the case of Adani
Gas Ltd. vs. Union of India has further explained the doctrine of Approbate and
Reprobate and stated that the same is based on the principle of estoppel and it implies
that one cannot challenge a decision, from which an advantage is enjoyed. The
respondent no. 1 also relied upon clause 128, 133 and 201 of the

JUDGMENT

passed by
the Hon’ble Bombay High Court in the matter of Neelkamal Realtors Suburban Pvt.
Ltd. and Anr. vs. Union of India and Others. With regards to the subvention scheme,
the respondent no. 1 relied upon the

JUDGMENT

passed by the MahaRERA, in the
matter of Gunveen Sahni & Ors. vs. Sumer Radius Realty Pvt. Ltd. & Ors., Teja Singh
Bassan & Satvinder Kaur Bassan vs. Rajesh Real Estate Developers Private Ltd. (clause
19, 20, 22 and 23 of the said order). Therefore, the respondent no. 1 submitted that, in
the circumstances, the present complaint ought to be dismissed with exemplary costs.


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 16 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

16. The respondent no.1 has uploaded its reply to the amendment application on the
record of MahaRERA on 24-08-2023, wherein it has stated that the complainants have
failed to sign the amendment application. However, the application for amendment
is not in the correct format and is uploaded on the letterhead of the advocate
containing neither the signature of the advocate for the complainants nor the signature
of the complainants. It has also stated that till date the complainants were seeking
compensation until possession due to which the respondent prepared the reply and
written submissions considering the complainants is seeking interest and/or
compensation until possession. Hence the amended prayers are not justified. Further
respondent no. 1 has prayed for the dismissal of the amendment application.

17. The complainants uploaded their withdrawal application for the amendment of the
prayer on the record of MahaRERA on 30-08-2023. The complainants wished to
withdraw the prayers that were amended in the amendment application.

18. The complainants uploaded their limited written submission on the record of
MahaRERA on 30-08-2023, wherein they have relied on an order passed by the
Hon’ble Maharashtra Real Estate Appellate Tribunal in the case of Ishaque Qasimali
Shaikh V. Jangid Properties passed in Appeal No.AT006000000052806, in which it has
held that in case the date of possession is not mentioned in the agreement for sale, the
date of possession ought to be taken as 3 years from the date of agreement for sale.
Hence, they requested to pass the same

JUDGMENT

as passed in the Ishaque Qasimali
Shaikh V. Jangid Properties.

19. The respondent no. 3 (ICICI Bank) has filed its reply on the records of MahaRERA on
28-01-2024 stating that complainant nos. 1 and 2 are the borrowers of the respondent
no. 3 who availed financial facilities from them to purchase the said flat. The
respondent no. 1 has agreed with them to promote the subvention scheme. Further, as


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 17 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

per the said agreement for sale, the loan was repayable in 240 months with a variable
rate of interest and accordingly, the sanction letter was duly received and
acknowledged by the complainants. The complainants requested to the respondent
no. 3 to make disbursements to the respondent no. 1. Accordingly, the respondent no.
3 has disbursed the entire loan amount availed by the complainants to respondent no.
1 and the complainants have created a mortgage in favour of the appellant by
depositing the said agreement for sale. The respondent no. 1 has paid the interest on
EMIs to the respondent no.3 till 30-11-2019 and thereafter defaulted in payment. The
respondent no. 3 has further stated that the contention of the complainants that there
is collusion between bank and developer is absurd. The complaint filed by the
complainants against the respondent no. 3 in the National Consumer Dispute
Resolution Commission is dismissed vide order dated 02-01-2023. The complainants
have agreed that they shall not hold the lender responsible for any delay in the
construction/giving possession/completion etc. Hence, the complaint filed against
respondent no. 3 is prima facie not maintainable.

20. The respondent no.1 has uploaded its additional written submission on the record of
MahaRERA on 15-05-2024, stating that the occupancy certificate has been obtained
upto the 23rd floor on 14-03-2024 and the possession has been offered to the
complainants vide the possession demand letter 15-03-2024. Hence, the present
complaint shall be dismissed.

21. The MahaRERA has examined the submission made by all parties concerned and
also perused the available record. In the present case the respondent no. 1 is the
promoter which has registered this project with MahaRERA (hereinafter referred to
as the ‘promoter’). The respondent no. 2 is the so-called project development
manager (hereinafter referred to as the ‘project manager’) and the respondent no. 3
is ICICI Bank which has sanctioned the home loan to the complainants under the
subvention scheme (hereinafter referred to as the ‘Bank’).


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 18 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

22. In the present case by filing this complaint, the complainant-allottees have
approached MahaRERA mainly seeking reliefs under section 18 of the RERA
towards possession of their flat along with interest for the delayed possession. They
further sought reliefs under the tripartite agreement signed by and between them,
the promoter and the Bank under the subvention scheme. The complainants have
signed the registered agreement for sale on 17-08-2013.

23. During the course of hearing, the complainants sought to amend the substantive
reliefs from “possession along with interest and compensation” to “refund along
with interest and compensation” by filing an amendment application dated 8-02-
2023 on record of MahaRERA on 15-03-2023. Hence, the

INTERIM ORDER

dated 16-06-
2023 was passed in this complaint whereby the parties were directed to file their
respective submissions on the issue of the said amendment sought by the
complainants herein. However, subsequently, the complainants withdrew the said
amendment application by filing an application on record of MahaRERA on 28-03-

2023. Hence, by virtue of the subsequent development, the said amendment
application was disposed of as withdrawn by the complainants vide an interim
order dated 01-09-2023.

24. Accordingly, this complaint was heard further by the MahaRERA on merits to
decide the substantive issue of possession along with interest and compensation
sought by the complainants under section 18 of the RERA etc.

25. The complainants have mainly contended that the project is delayed and still the
same is incomplete, although the agreement for sale has been signed prior to the
commencement of the RERA. The promoter has not mentioned any agreed date of
possession in the said agreement for sale. Hence, a reasonable period of 3 years can
be considered as the date for completion of the project as per various orders passed


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 19 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

by the Apex Court. The complainants have also contended that since the project
manager has stepped into the shoes of the promoter, both are liable under the
provisions of the RERA. They further contended that they want to continue in the
project and are seeking possession of their flat along with reimbursement of the pre
- EMI interest paid by them under the subvention agreement as the promoter has
stopped paying the same. They further contended that the promoter vide its email
has admitted its liability to pay the Pre-EMIs to the bank. Hence, they prayed to
allow this complaint.

26. The promoter on the other hand has resisted the claim of the complainant allottees
and contended that it has informed the complainants about the difficulties in the
completion of the project as well as payment of the pre EMI interest. Further, the
complainants have filed this complaint at a belated stage i.e. after 5 years from the
commencement of the RERA. They remained silent on their claims and therefore,
this complaint is not tenable due to the said delay on the part of the complainants.
Further, the date of completion of this project got extended till 29-12-2024. Hence,
this complaint is premature as on date. Also, the complainants have decided to
remain in the project and thereby they are now estopped from raising any issue with
respect to the date of possession. As far as the issue of Pre-EMI raised by the
complainants, it has stated that the MahaRERA has no jurisdiction to entertain such
disputes which have arisen by virtue of facility agreement signed between it,
complainants and the bank. The promoter has also contended that during pendency
of this complaint, it has obtained OC for the said project on 14-03-2024 and has also
offered possession of the said flat to the complainant on 15-03-2024. Hence, it has
prayed for dismissal of this complaint.

27. The project manager has mainly contended that it has no role as far as the payments
of the Pre-EMI or interest for the delayed possession is concerned as there is no
privity between it and the complainants and it is the promoter who is responsible


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 20 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

for the same. Hence, it has prayed for dismissal of this complaint against it.

28. The Bank has also filed its reply on record of MahaRERA mainly contending the
present complaint is liable to be dismissed against it.

29. In the present case, admittedly, there is a registered agreement for sale dated 17-
08-2013 duly signed between the complainants and the promoter. Admittedly, no
date of possession is mentioned in the said agreement for sale. However, the
complainants have mainly contended that as per the various case laws decided by
the Apex Court, the reasonable period for completion of any project is 3 years.
However, in this case, since more than 3 years is over, they are entitled to seek
interest for the delayed possession under section 18 of the RERA. The promoter has
not denied the execution of agreement for sale signed with the complainants nor
has denied the payments made by them. It has further admitted the said delay,
however, the same was mainly due to the financial difficulties and due to the Covid-
19 pandemic.

30. However, in the present case, on bare perusal of the available record, the
MahaRERA has prima facie noticed that in this project the Erstwhile Ld. Member-
1/MahaRERA has already passed an order on 25-03-2022 in
Complaint No.
CC006000000192663
filed by the other allottees of this project viz. Mr. Mohit R
Mehta and Anr. In the said complaint, the allottee therein had sought similar sort of
reliefs on similar facts as stated by these complainants. After going through the
submission made by both the parties therein, the Erstwhile Ld. Member-
1/MahaRERA was pleased to pass following order:-
“9. As far as relief sought by the complainants towards interest for the delayed
possession sought by the complainants, the MahaRERA has noticed that
admittedly, there is a registered agreement for sale signed and executed by the
complainants and the respondent dated 26-07-2013, wherein no date of possession


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 21 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

is mentioned. However, the complainants by relying upon the

JUDGEMENT

and order
of Hon’ble Apex Court has stated that the reasonable period for completion of the
project should be 3 years. Since in the present case, they have executed the agreement
for sale with the respondent on 26-07-2013, the date of possession should be 26-07-

2016. Hence, they are seeking relief under section 18 of the RERA for interest for the
delayed possession.

10. .Before dealing with the facts in this complaint, it is pertinent to examine
“possession” as contemplated under section 18 of the RERA, which reads as under:
“18 (1) If the promoter fails to complete or is unable to give possession of an
apartment, plot or building, —
(a)in accordance with the terms of the agreement for sale or, as the case may be,
duly completed by the date specified therein; or
(b) due to discontinuance of his business as a developer on account of suspension
or revocation of the registration under this Act or for any other reason, he shall
be liable on demand to the allottee, in case the allottee wishes to withdraw from
the project, without prejudice to any other remedy available, to return the
amount received by him in respect of that apartment, plot, building, as the case
may be, with interest at such rate as may be prescribed in this behalf including
compensation in the manner as provided under this Act:
Provided that where an allottee does not intend to withdraw from the project,
he shall be paid, by the promoter, interest for every month of delay, till the
handing over of the possession, at such rate as may be prescribed.”

11. From the plain reading of section 18, it is very clear that if the promoter fails
to handover possession as per the terms of the agreement for sale or as the case
may be, by the specified date therein, the allottee has a choice either to withdraw
from the said project or to stay with the project. Further, in case the allottee
chooses to be in the project and take possession, he is entitled to claim interest
for the delayed period of possession on the actual amount paid by him for every
month of delay. It is important to note here that the examination of the term
‘possession’ is in context to the agreement for sale signed by both the parties on


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 22 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

26-07-2013.

12. Admittedly, no specific date of possession is being mentioned in the said
agreement. However, it can’t help the promoter respondent to escape the
provisions of RERA as it has failed to fulfil its obligations to pay the EMIs to
the financial institution which it was required to do till the date of possession.
It has clearly violated clause 9 of the agreement. The complainants paid almost
the entire consideration which included loan under subvention scheme in 2013.
However, they are waiting for their home even after 9 years and they are being
asked by the respondents to pay pre-EMI. Normally a project should be complete
in 3-5 years as held by the Hon’ble Apex Court in its various judgements. Such
an inordinate delay is neither permissible nor justifiable by any stretch of
imagination. However, in the present case, the MahaRERA has noticed that
though no date of possession is mentioned in the agreement for sale signed and
executed with the complainants. However, while registering this project with
MahaRERA, the respondent promoter has mentioned the proposed completion
date of this project as 31-12-2022 and revised completion date as 30-12-2023.
Hence, in absence of any agreed date of possession in the agreement for sale, the
MahaRERA may consider the proposed completion date of this project as the
date of possession and in this case, it is 31-12-2022.

13. In addition to this, the respondent promoter vide its letter dated 30-05-2019
agreed to reimburse the Pre-EMI’s to the ICICI Bank by issuing cheques which
got dishonoured. It shows that there is default by taking the liability of the
payment of pre-EMIs the respondent cannot deny its liability to pay the pre-
EMI’s as per the Facility Agreement signed with the complainants dated 29-07-

2013. 14. In view of the facts and circumstances of this case as discussed above, the
following order is passed:
a) The respondent is directed to complete the project and handover possession of
the said flat to the complainants on or before 31-12-2022 with occupancy
certificate.


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 23 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

b) Failing which, the respondent shall be liable to pay interest for the delayed
possession to the complainants from 1-1-2023 for every month of delay till
actual date of possession to the complainants at the rate prescribed by
MahaRERA, i.e., Marginal Cost of funds based Lending Rate (MCLR) of the
State Bank of India (SBI) plus 2 % on the actual amount paid by the
complainants towards the consideration of the said flat.
c) The respondent is also directed to comply with its commitment made to the
complainants under the subvention scheme and reimburse the Pre-EMI to the
complainants as per letter dated 30-05-2019 as well as the Facility agreement
dated 29-07-2013.

15. With these directions, the complaint stands disposed of.”

21. Further, considering the aforesaid order passed by the Ld. Erstwhile Member-
1/MahaRERA, this bench has also passed a common order in various complaints
filed by the other allottees of this project seeking similar sort of reliefs under
section 18 of the RERA.

22. However, in the present case, the promoter has not cited any additional ground
for the delay caused in handing over possession of the said flat to the
complainants. Furthermore, even the complainants have not cited any valid
proof on record of MahaRERA that the aforesaid order dated 25-03-2022 passed
by the Erstwhile Member-1/MahaRERA has been set aside by the Hon’ble
Appellate Tribunal. Even, the

JUDGEMENT

cited by the complainants of Newtech
Promoter and Developers Pvt Ltd. talks about the agreed date of possession
mentioned in the agreement for sale. However, in this case no specific date of
possession is mentioned in the agreement for sale signed with these
complainants. Hence, the MahaRERA cannot take into consideration the said
judgements /orders cited by the complainants. Since there is no change in
facts/circumstances in this case, the MahaRERA cannot review the earlier order


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 24 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

dated 25-03-2022 passed by the Erstwhile Ld. Member-1/MahaRERA. Hence, the
complainants being part of this project are also entitled to seek similar reliefs at
par with the other allottees and similarly placed complainants. Moreso, even if
the said revised date of completion of this project is extended further till 29-12-
2024, the MahaRERA need not consider the same, since the said extension has
been sought by the promoter after filing of this complaint before the MahaRERA
by the complainants on 01-08-2022.

23. As far as the other issue raised by the complainants about joint liability of the
project manager under section 18 of the RERA, admittedly, the complainants
have not submitted any cogent documentary proof on record of MahaRERA to
show that they have any privity with the project manager. Hence, there is no
substance in the claim agitated by them against the project manager.

24. As far as the issue of payment of (reimbursement of) Pre-EMIs paid to the Bank,
the MahaRERA has noticed that in the earlier complaint decided by the
MahaRERA vide an order dated 25-03-2022 (as stated hereinabove), the promoter
has agreed to reimburse the Pre-EMIs paid by the said complainant allottees to
the Bank. Also, vide an email referred to by the complainants, the promoter has
admitted its liability towards the payment of the Pre-EMIs. Hence, these
complainants are also entitled to seek similar reliefs from the MahaRERA.
Needless to state here that the MahaRERA cannot now take any divergent view
in this complaint, as they are similarly placed complainants.

25. In view of the above, in the present case, the MahaRERA has already considered
the date of possession as 31-12-2022 as no date of possession is mentioned in the
agreement for sale signed with these complainant- allottees. However, as
informed by the promoter in this case, the promoter has obtained OC for the said
flat booked by the complainants on 14-03-2024 and has also offered possession


Complaint No. CC006000000261968


━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━
Page 25 of 25
━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━

of the said flat to them on 15-03-2024. However, the complainants have not
clarified the fact whether they have obtained possession of the said flat offered
by them. Hence, the complainants herein are not entitled to seek interest on
account of delay after the OC is obtained for the project i.e. 14-03-2024.

26. In view of the aforesaid facts, the following order is passed:
a) The present complaint is hereby allowed.
b) The promoter is also directed to pay interest for the delayed possession to the
complainants on actual amounts paid by the complainants towards the
consideration of their flat at the rate of SBI’s Highest Marginal Cost Lending
Rate (MCLR) plus 2% as prescribed under the provisions of section-18 of the
Real Estate (Regulation and Development) Act, 2016 and the Rules made
thereunder, from 01/01/2023, till the date of OC i.e. 14-03-2024.
c) Needless to state here that the actual amount as provided under section 18 of
the RERA means the amounts paid by the complainants towards the
consideration of their flat only, excluding the stamp duty, registration charges
and taxes etc., paid to the government.
d) The promoter is also directed to comply with its commitment made to the
complainants under the subvention scheme and reimburse the Pre-EMI to the
complainants which are paid by the complainants to the Bank.

27. With the above directions, the present complaint stands disposed of.


(Mahesh Pathak)
Member – 1/MahaRERA