Complaint No. CC006000000292382


Complaint No. CC006000000292612


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BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY
AUTHORITY, MUMBAI

1. Complaint No. CC006000000292382

Kausar Mossani


... Complainant

Versus

DK Realty India Pvt Ltd


... Respondent
Along with

2. Complaint No. CC006000000292612

1) Prakash Dattaram Misal

2) Sangeeta Prakash Misal


... Complainants

Versus

D. K. Realty (India) Pvt. Ltd.


... Respondent


MahaRERA Project Registration No. P51800000340


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

Ld. Adv. Umair Ansari appeared for complainant at sr. no. 1.
The complainants in sr. no. 2 appeared in-person.
None appeared for the respondent/s.


INTERIM ORDER


(Wednesday, 12th June 2024)

(Through Video Conferencing)


1. The complainants above named have filed these 2 separate online complaints
before the MahaRERA on 18/08/2022 (Sr. No.1) and on 11/10/2022 (Sr. No.
2) seeking directions from MahaRERA to the respondent - promoter to refund
the entire amounts along interest and compensation as prescribed under the


Complaint No. CC006000000292382


Complaint No. CC006000000292612


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provisions of the Real Estate (Regulation & Development) Act, 2016
(hereinafter referred to as ‘RERA’) in respect of booking of their respective flats
(as mentioned in the table below) in the respondent - promoter’s registered
project known as “LIVSMART KURLA” bearing MahaRERA registration No.
P51800000340 located at Kurla, Dist. Mumbai Suburban.

2. These complaints were heard by the MahaRERA on 29/11/2023 and finally on
28/02/2023 as per the Standard Operating Procedure dated 12/06/2020
issued by the MahaRERA for hearing of complaints through Video
Conferencing. Both the parties have been issued prior intimation of this
hearing. On the said dates of hearings, the parties have appeared as per their
appearances recorded in the Roznamas and made their respective
submissions. The MahaRERA heard the submissions of the parties as per their
appearances and also perused the available record.

3. After hearing the argument of both the parties, the following Roznamas were
recorded in these complaints -

i)
On 29/11/2023 :
The complainants are present. The respondent is absent.
The complainants have filed these complaints for refund along with interest
and compensation for delay. Admittedly, the date of possession is not
mentioned in the allotment letters / agreements for sale. The details of the flat
booked, dates of allotment letters / agreements for sale, total consideration,
consideration paid are as per the table given below –

Sr. No.

Complaint No.
Details

of the
Flat
Booked
Total
Consideration
Consideration
Paid
Date of
Allotment
letter /
Agreement
for Sale


Complaint No. CC006000000292382


Complaint No. CC006000000292612


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23. CC006000000292382

flat
no.204 in
1 Wing
Rs.
89,92,422/-
Rs.
45,82,371/-
27th
December
2015 (booking
form)

24. CC006000000292612
Flat no.
1001,
Floor 10
in Wing
19
NA
47,14,089
07-10-2017
(Agreement
for sale)

25. CC006000000344163
flat no
15-503
Rs.
86,71,500/-
Rs.
19,66,696/-
Agreement
for sale date
not
mentioned

As the project is still incomplete, the complainants have prayed for refund
along with interest and compensation for delay. The respondent is directed to
file its replies to these complaints within a period of 4 weeks i.e., 27-12-2023.
The respondent is also directed to initiate the steps to extend the project
registration which was lapsed in December 2021. The complainants at Sr. Nos.
23 (CC006000000292382) and 25 (CC006000000344163) are directed to upload
the documents regarding the booking of the said flat in the complaints. The
complainants may file rejoinder within a further period of 2 weeks i.e., by 10-
01-2024.
These matters are adjourned to a suitable date after 10-01-2024 for further
hearing. List these matters for next hearing on 28-02-2024.

ii)
On 28/02/2024 :
“The complainants are present. The respondent is absent. In Sr. No. 27
(CC006000000292382), the complainant has mentioned that the booking
form of December 2015 is not traceable. However, there are intimations /
letters by the respondent regarding the said booking and payment of taxes
& registration of the agreement for sale dated 14-10-2016 as well as 13-06-

2017. The complainant relied on the said documents regarding the booking


Complaint No. CC006000000292382


Complaint No. CC006000000292612


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application form / allotment letter issued in 2015. The complainants’
arguments have already been recorded earlier and the details of the bookings
have been recorded in the previous Roznama dated 29-11-2023. The
respondent is given one last chance to file replies to the complaints along
with written arguments within a period of 2 weeks i.e. by 13-03-2024.
Further 2 weeks’ time i..e till 27-03-2024 is granted to the complainant to
file rejoinder along with written arguments, even if the respondent does not
file any reply. In case the respondents do not file any reply / written
arguments the MahaRERA would be constrained to decide these matters ex-
parte against the respondent on merits. In view of the above, these matters
are reserved for orders suitably after 27-03-2024 based on the arguments of
the complainant as well as reply, rejoinder and written arguments filed in
these complaints..”

4. Pursuant to the said directions the complainant at sr. no. 1 on 26/03/2024 has
uploaded her written submission on record of MahaRERA. However, despite
directions, the complainants at sr.no. 2 failed to upload any other document
after last date of hearing held on 28/02/2022. The MahaRERA has perused the
available record.

5. However, in the present case on bare perusal of the website of Insolvency and
Bankruptcy Board of India, the MahaRERA has prima facie noticed that the
association of allottees formed in this project viz LIV Smart Welfare
Association has filed Company Petition No. CP (IB) No.1170/MB-IV/2021
against the respondent promoter under Section 7 of the I&B Code, 2016
agitating claim of Rs.81,45,67,305.50/- against the respondent promoter.

6. From the available record, the MahaRERA has further noticed that on 15-11-
2022, the Hon’ble National Company Law Tribunal Mumbai (NCLT) has
passed an order in CP (IB) No.1170/MB-IV/2021 filed by LIV Smart Welfare


Complaint No. CC006000000292382


Complaint No. CC006000000292612


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Association, i.e., the Financial Creditor therein against the respondent herein,
thereby admitting the respondent herein into Corporate Insolvency Resolution
Process (CIRP) in accordance with the provisions of the Insolvency and
Bankruptcy Code, 2016.

7. Further, as recorded in para (a) (I) (a) of the said order passed by the NCLT
moratorium has already been ordered against the respondent promoter. In
view thereof, as provided under section 14 of the Insolvency and Bankruptcy
Code, 2016, which mandates a moratorium on the institution and continuation
of legal proceedings against a Corporate Debtor (respondent herein) in respect
of which an order of admission into CIRP has been passed by the Adjudicating
Authority, applies to the respondent herein. Hence institution of suits or
continuation of pending suits or proceedings against the respondent including
execution of any

JUDGMENT

, decree, or order in any court of law, tribunal,
arbitration panel or other authority is prohibited.

8. However, although the said company petition was filed by the association
formed by the allottees of the captioned project, during the course of hearing,
neither the complainants nor the respondent have ever informed to
MahaRERA about the aforesaid order passed by the NCLT. However, the said
crucial fact cannot be ignored by the MahaRERA.

9. Be that as it may, in the present case, in view of the above, the MahaRERA
cannot proceed to decide these complaints against the respondent at this
stage and hence the present complaints are adjourned sine die. In the
meantime, the complainants may pursue their claim for refund before the
CIRP if they so desire.

10. However, liberty is granted to the complainants to approach MahaRERA after


Complaint No. CC006000000292382


Complaint No. CC006000000292612


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final disposal of the said insolvency proceeding pending against the
respondent if need be.

(Mahesh Pathak)
Member – 1/MahaRERA