Complaint No. CC006000000334090


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BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY, MUMBAI


Complaint No. CC006000000334090

Krishna R Thakkar
Preeti R Thakkar
Rajeev Thakkar


.... Complainants

Versus

Oberoi Constructions Ltd Co
Rajendra Chandorkar
Saumil Daru
…..Respondents


MahaRERA Project Registration No. P51800002656


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

Ld. Adv. Harshad Bhadbhade appeared for the complainants.
Ld. Adv. Abir Patel appeared for the respondents.


INTERIM ORDER


(Monday, 22nd July 2024)

(Through Video Conferencing)


1. The complainants above named have filed this online complaint before the
MahaRERA on 25-01-2023 seeking directions from MahaRERA to the
respondents to refund the entire amount paid by them along with interest,
restrain from creating any third party rights prescribed 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 a flat bearing no. 2202 on
22nd Floor in the respondents’ registered project known as “Enigma Towers
A and B,” bearing MahaRERA registration No. P51800002656 located at


Complaint No. CC006000000334090


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Mulund,. Kurla, Mumbai Suburban (hereinafter referred to as the “said flat”).

2. This complaint was heard on several occasions and the same was heard finally
on 27-03-2024 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 this hearing and they were also
informed to file their written submissions if any. Accordingly, both the parties
appeared for the hearing and made their submissions. MahaRERA heard the
submissions of the parties and perused the available record.

3. After hearing the arguments of both the parties, the following Roznama were
recorded -
On 27/12/2023
“Both the parties are present. The respondent has filed an application
challenging the maintainability of the complaint. Another ground raised by the
respondent is that the complainant expressed his desire to clear the pending
amount. Therefore this complaint for refund along with interest is infructuous
on this ground as well. In view of the above, the complainant is directed to file
its reply to the application of the respondent within a period of two weeks i.e.
by 10-1-2024. Further two weeks’ time i.e. by 24-1-2024 is granted to the
respondent to file rejoinder to the reply of the complainant on the issue of
maintainability of this complaint. The matter is adjourned to a suitable date
after 24-1-2024 for further arguments on the issue of maintainability of this
complaint. List the matter for next hearing on 27-03-2024.”

On 27/03/2024:-
“Both the parties are present. The matter was kept today for final arguments
on the issue of maintainability of this complaint. Accordingly, the


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complainant has pointed out that there are case laws of the Hon’ble Appellate
Tribunal, Hon’ble Bombay High Court as well as Hon’ble Supreme Court
regarding the arbitration clause mentioned in the said agreement for sale..
Moreover, the respondent has also not moved an application according to
Section 8 of the Arbitration Act to invoke the arbitration. Therefore, the claim
of the respondent that the arbitration is applicable is not tenable. Further,
about the email that the respondent is referring to claims that the complainant
even after filing this complaint was ready and willing to obtain possession,
the complainant has pointed out that the said emails are pursuant to the
conciliation proceedings. Moreover, on the issue that the complaint had been
filed after the receipt of occupancy certificate, the complainant has pointed out
that the cause of action arose in March 2020 and it was continuous cause of
action. Moreover, the respondent has never informed the complainant to take
over possession, therefore, this complaint is filed in January 2023 and is
maintainable. The respondent has refuted these contentions of the complainant
and has pointed out that the case laws that the complainant is referring to are
with regard to the agreements for sale which were signed in the RERA regime
not in the MOFA regime. This agreement was signed in March 2016. Moreover,
once the complainant is relying on the date of possession in the said agreement
for sale to claim refund, the complainant cannot challenge the same agreement
with regard to the arbitration clause claiming that it is one-sided. The
respondent has also pointed out that in its reply it has referred to Section 8 of
the Arbitration Act and thereby invoked arbitration. On the continuous cause
of action the complainant is claiming, the respondent avers that the said
continuous cause of action is for possession and not for refund, as the
complainant has waited from March 2020 to January 2023 to file this
complaint and the occupancy certificate was received in January 2023.
Moreover, the respondent has also pointed out to the couple of emails of the
complainant of May 2023 wherein the complainant was ready and willing to


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obtain possession and to pay the outstanding dues, however, the complainant
was seeking clarity on the TDS as well as on the fact whether it is soft
possession or full possession. In view of the above, the respondent may file its
written arguments within a period of 2 weeks i.e. by 10-04-2024. Further 2
weeks’ time i.e. till 24-04-2024 is granted to the complainant to file written
arguments. Both the parties may serve the case laws on each other.
Accordingly, this matter is reserved for orders suitably after 24-04-2024 on the
issue of maintainability of this complaint based on the reply, rejoinder,
written arguments and case laws filed in the complaint.”

4. Pursuant to the aforesaid direction the complainants have uploaded their
written submissions on 23-04-2024. The respondents have uploaded their
written submissions along with the compilation of judgments on 03-05-2023.
The same has been taken on record. The MahaRERA has perused the available
record.

5. It is the case of the complainants that the respondent no. 1 is a limited company
incorporated under the companies Act 1956. The respondent nos. 2 & 3 are the
authorized signatories. Based on the representation made by the respondents,
they purchased the said flat in the respondents registered project for total
consideration of Rs. 4,80,30,290/- out of which they have paid Rs.3,80,31,203/-
inclusive of all taxes. The agreement for sale was executed between the parties
on 25-02-2016 and registered on 04-03-2016. As per the Schedule IV of the
agreement for sale, the respondents assured to handover the possession of the
said flat on or before March 2020. However, till today the possession has not
been given by the respondents. After the execution of agreement of sale, the
respondents started to avoid giving proper information to them. They have
made various written complaints to that effect and also started questioning


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about the delay in construction through written emails, telephonic
communication and by visiting the site which was futile. They have paid
substantial money. The CC approval was received on 21-10-2015 after 9 months
of project launch. The complainants have also visited and inspected the site
multiple times and the work was not even completed 10% whereas the
respondents had collected more than 40% of project amount. Moreover,
without their consent, it had started to make unilateral amendments to the
possession date on the RERA Website. Further no explanation about date was
given by the respondents. The complainants have given details of period when
the construction was completely stopped by the respondents. The respondents
are falsely taking excuse of the force majeure clause. As per the respondent’s
invitation, they visited site to view the said flat after which they observed
multiple quality issues and the same has been notified to the respondents.
Under the RERA the respondents proposed the date of completion as March
2021 and revised proposed date of completion as 30-12-2021 which itself
implies that the project is delayed by 1 year if calculated from the proposed
date of completion and is delayed by almost 22 months if calculated from the
early date of possession. Being aggrieved and dissatisfied with the conduct of
the respondents they filed the present complaint. Hence, they prayed to
MahaRERA to allow this complaint and grant reliefs as sought for in this
complaint.

6. The respondent on 21-12-2023 uploaded its miscellaneous application for
dismissal of the complaint on the record of the MahaRERA, wherein the
respondent raised several issues regarding the maintainability of the
complaint. It was submitted by the respondent that as per clause 6.1.1 of the
said agreement dated 04-03-2016, the respondent agreed to complete the
construction of the said flat by the fourth schedule of the said agreement which


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was March 2021. Further, the respondent also agreed to obtain the OC for the
said flat and possession timelines as per clause 6.1.2 of the said agreement. In
terms of subclauses 6.1.1.1 to 6.1.1.5 of the said agreement, the complainants
have agreed to make the above date subject to reasonable extension. However,
the said project was impacted by Covid 19 pandemic and was covered by the
MahaRERA’s order nos. 14/2020 and 21/2021. Since no case was made out
under section 31 of the RERA, on this ground alone the complaint cannot be
entertained. Further, in terms of clause 22 of the said agreement, it was agreed
between the parties that in case of disputes between them about the clauses of
the said agreement, the parties shall refer their disputes to arbitration as per the
Arbitration & Conciliation Act, 1996. This complaint falls foul of the above
contractual understanding between the parties. The MahaRERA has vide
several orders held that when an agreement for sale is entered into prior to the
RERA and has arbitration clause in agreement, a complaint under RERA is not
maintainable. It is a matter of fact that the Hon’ble Bombay High Court has in
Second Appeal no. 434 of 2023 considered this issue of whether the existence of
an arbitration agreement ousts the Authority’s jurisdiction under the RERA.
The respondent further relied upon the

JUDGMENT

passed by the Hon’ble
Bombay High Court in the matter of Paranjape Scheme (Construction) Ltd. vs
Avinash Madhukarrao Yekhande where an identical agreement for sale with
an arbitration agreement entered into before the RERA was the issue, and it
has held that the parties must seek recourse to arbitration as per the said
arbitration clause. The respondent alleged that MahaRERA cannot re-write
contracts. The arbitration agreement is a contractual understanding between
the parties. Even RERA does not re-write contracts. The said agreement has
come into existence prior to the RERA. If the complainants want to enforce the
possession date mentioned in the said agreement, they are equally bound to
adhere to the other clauses. They can’t pick and choose what portion of the said


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agreement applies to them and what doesn’t. Further, they can’t sidetrack some
portions of the said agreement as per their whims and fancies. The respondent
further submitted that this application was filed in compliance with the
requirement of section 8 of the RERA which stipulates that the plea as regards
existence and applicability of an arbitration clause must be raised before the
first reply to a case which has been filed. The complainants had filed this
complaint on 24-01-2023 seeking refund along with interest. On 03-05-2023, the
respondent sent an email to the complainants requesting to clear the
outstanding payment against demand raised on 18-01-2023 to schedule for the
handover of the possession of the said flat. By emails dated 04-05-2023 and 11-
05-2023, the complainants expressed their willingness to pay the outstanding
amount within 15 days provided they were given final possession and given a
copy of the Part OC dated 17-01-2023. However, the respondent on the same
day emailed the copy of the Part OC to the complainant no. 1. The above emails
were testament to the fact that the complainants were never aggrieved about
taking possession even at a later date and committed to make final payment
unconditionally in May 2023 which was after the complaint was filed.
Therefore, the complaint had become infructuous, and the complainants had
shifted their stance unconditionally and given up their claim of refund. The
complainants had indulged in suppression as they could have pointed out the
fact of arbitration in the complaint itself. Further, they could have pointed out
the emails when the matter was listed on 21-09-2023. However, the
complainants approached the MahaRERA with unclean hands. Therefore, the
respondent prayed to dismiss the present complaint being not maintainable as
it cannot be entertained under the provisions of the RERA.

7. The complainants on 14-02-2024 uploaded their reply on maintainability. They
have stated that the date of possession of the said flat was March 2020 but they


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have mentioned it as March 2021 that too excluding the grace period. Further
the impact of Covid 19 cannot be reason for the delay of the project and thus
they are liable for compensation. Moreover, in terms of clause 22 of the
agreement for sale, it has been agreed between the parties that in case of
disputes between them about the clauses of the agreement, the parties shall
refer their disputes to arbitration as per Arbitration & Conciliation Act 1996.
However, there are many judgments where it has been specifically decided that
the RERA will prevail over on any other general law irrespective of time, as
the project is registered under the RERA. They have annexed the compilation
of the judgements passed by the Hon’ble Madras High Court in Army Welfare
Housing Organisation vs Project Directors dated 12-11-2021 to that effect.
Further, the arbitration agreement is a contractual understanding between the
parties. Even RERA does not rewrite contracts & if the complainants want to
enforce the possession date mentioned in the said agreement, they are equally
bound to adhere to the other clauses. The respondents can’t pick and choose
what portions of the agreement applies to it and what doesn’t. Further the
agreement in general is in a readymade format having minimal scope of any
changes by the allottees. Hence such agreement clauses cannot be said to have
been agreed upon with free consent of the allottees and thus can’t have the
same binding effect. Further the letter is exhibited by the respondents after the
complainants have filed the complaint in RERA wherein they have replied to
that email and inquired about whether the said flat is in a liveable state as the
complex was not ready despite the part OC received on 17-01-2023. They
further contended that the letters relied upon by the respondents should not be
read in isolation and no interference needs to be drawn from some sentences.
The intention of the complainants has always been to find a solution as was
also evident in the RERA Conciliation hearings. The respondents never raised
the point of arbitration during past hearings and could have pointed this out


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when matter was list on 21-09-2023 and hence, it is clearly an afterthought.

8. The respondent on 16-03-2024 uploaded its rejoinder to the miscellaneous
application dated 11-12-2023 wherein the respondent denied the submissions
of the complainants in toto and justified its submissions. It was submitted by
the respondent that complainant no. 3, having acted in furtherance of the said
agreement for 8 years has now, in a sheer act of desperation started questioning
the terms, which belated defense cannot be entertained. Further, a party that
acts in furtherance of an agreement cannot question its very clauses. The
complainants have not even raised this issue in their original complaint and
therefore are not permitted to agitate any issues beyond the pleadings of the
said complaint. In the said reply of the complainants, it was stated that the
emails sent by the complainants should not be read in isolation. The
complainants in their own emails expressed their willingness to take the
possession provided he was given final possession and Part OC. The
prerequisites were fulfilled. On the one hand, complainant no. 3 himself stated
that his intention has always been to find a solution, on the other hand he was
making allegations against the respondent that it approached him to find a
solution by way of offering him possession. The complainant no. 3 was unsure
what defense to take or how to cover up his own conduct. The respondent
further replied to the complainants’ submissions in a para-wise manner. The
respondent also relied upon the

JUDGMENT

passed by Hon’ble Supreme Court
in the matter of Pioneer Urban Land and Infrastructure Limited and Anr. vs
Union of India and Ors., wherein the Apex Court dispelled the misconception
that the RERA prevails over other statues and in fact held that RERA co-exists
with other statutes and operates in addition and not in derogation of other
statutes.

9. The complainants on 23-04-2024 uploaded their written submission in which


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most of the submission are repeatedly as stated by the complainants in their
complaint.

10. The respondent on 03-05-2024 uploaded its written submissions on the record
of the MahaRERA, wherein the respondent submitted that, by order dated 28-
02-2024, the respondent has been merged with Oberoi Realty Limited, pursuant
to which all the rights, liabilities and assets of the respondent have been
transferred to Oberoi Realty Limited. Therefore, the respondent is now
changed to Oberoi Realty Limited. The respondent further reiterated all the
submissions made hereinabove. It was argued by the respondent that, as per
complainant’s defense the said agreement was lopsided and unilateral was
fallacious. On the one hand the complainants wanted to rely upon the date
specified in clause 6.1.1 of the said agreement to allege delay in possession and
on the other hand they wanted to call the arbitration clause and the said
agreement one sided. The respondent with respect to the arbitration
submissions, relied upon the

JUDGMENT

passed by the MahaRERA in the matter
of Ayaz Khan and Saba Khan vs Era Realtors Pvt. Ltd., wherein it was held that
buyers with agreement for sale entered into prior to the RERA having
arbitration clause must seek recourse to arbitration and cannot invoke
jurisdiction under RERA. As for the complainant’s reliance upon the Hon’ble
Appellate Tribunal order that even though there is an arbitration clause, RERA
would apply. However, the Hon’ble Bombay High Court in the matter of Ms.
Rashmi Realty Builders Pvt. Ltd vs Mr. Rahul Rajendrakumar Pagariya & Ors.
has already reserved its

JUDGMENT

on the issue on whether the jurisdiction of
the RERA is ousted, if the agreement between the promoter and the allottee
contains an arbitration clause and the decision was awaited. Therefore, the
decision of the Tribunal assuming it exists has not attained finality till date and


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can’t have a bearing on this case. The respondent further submitted its
contentions in a detailed manner.

11. The MahaRERA has examined the rival submissions made by both the parties
and also perused the available record. In the present case, the complainants
who are the allottees of this captioned project by filing this complaint have
approached the MahaRERA mainly seeking reliefs under section 18 of the
RERA towards refund of the entire money paid by them along with interest
and compensation on account of delay in handing over possession of the said
flat to them on the agreed date of possession mentioned in their registered
agreement for sale signed with the respondent no. 1 promoter. The
complainants have agitated the said claim by virtue of the registered agreement
for sale dated 4-03-2016.

12. The respondent promoter has assailed the aforesaid claim of the complainant
by raising the preliminary issue of maintainability of this complaint by filing a
Miscellaneous Application (MA) on record of MahaRERA mainly on the
ground that the parties herein should invoke the arbitration clause as
mentioned in the said agreement for sale dated 4-03-2016 in case of any dispute.
Hence, the present complaint is not maintainable under the provisions of the
RERA. Additionally, the respondent has also contended that after filing of this
complaint for refund, the complainants have shown their willingness to make
the payments.

13. In view of the above, before dealing with this complaint on merits, the
MahaRERA has to decide the said MA filed by the respondent raising an issue
of maintainability of this complaint under the provisions of the RERA being a
preliminary issue.


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14. In the present case, in reply to the said issue of maintainability of this complaint
in view of arbitration clause mentioned in the said agreement for sale dated 4-
03-2016, the complainant have mainly contended that there are case laws of the
Hon’ble Appellate Tribunal, Hon’ble Bombay High Court as well as Hon’ble
Supreme Court regarding the arbitration clause mentioned in the said
agreement for sale. They further contended that although the said clause was
very much mentioned in the said agreement for sale, the respondent has not
taken any steps by filing any application under section 8 of the Arbitration Act
to invoke the arbitration. Hence, the said issue raised by the respondent about
the arbitration clause is not tenable as it was not issued during the conciliation
opted by them during the first hearing held in this complaint. Hence, the same
has nothing to do with the substantive claim agitated by them in this complaint
filed for refund under section 18 of the RERA. They further contended that
although the OC was obtained for this project on 17-01-2023, the possession
was never offered to them . Hence, there was continuous cause of action as
contemplated under section 18 of the RERA, since they have filed this
complaint after OC was obtained for this project. Hence, they have contended
that this complaint is maintainable under the provisions of the RERA.

15. The respondent has refuted all these aforesaid contentions of the complainants
and has stated that the case laws that the complainants are referring to are
with regard to the agreements for sale which were signed in the RERA regime
not in the MOFA regime. This agreement for sale in this case was signed on 4-
03-2016. The complainants are relying upon the possession clause mentioned
in the said agreement for sale to seek refund however, they are not relying on
the arbitration mentioned therein and they are challenging the said arbitration
clause on the other hand, which is not permissible. On the continuous cause of


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action the complainants are raising, the respondent has contended that the said
continuous cause of action is for possession and not for refund, as the
complainants have waited from March 2020 till January 2023 to file this
complaint and the occupancy certificate was received in January 2023.
Moreover, the complainants in the month of May 2023 have sent an email
showing their willingness to obtain possession and to pay the outstanding
dues, however, the same was not obtained by the complainants, since they were
seeking clarification on TDS as well as whether it is soft possession or full
possession.

16. From the aforesaid submissions made by both the parties on the issue
maintainability of this complaint in view of the arbitration clause mentioned
in the said agreement for sale as well as on the other substantive issue, the
MahaRERA prima facie feels that in this case as recorded in the roznama dated
27-03-2024, before dealing with the substantive issue of refund sought by the
complainants herein, the MahaRERA has to decide the MA filed by the
respondent. Admittedly, the same pertains to the maintainability of this
complaint under the provisions of the RERA in view of the arbitration clause
mentioned in the said agreement for sale dated 4-03-2016.

17. Be that as it may, as far as the said issue of arbitration clause, the MahaRERA
has
noticed
that
the
very
first
order
passed
by
the
Hon’ble
Chairperson/MahaRERA dated 14-01-2022 passed in the matter of Ayyaz Khan
and Anr., wherein it was held that in view of the arbitration clause mentioned
under the agreement for sale signed under MOFA regime, the parties need to
invoke the arbitration and conciliation under the provisions of section 8 of the
Arbitration and Conciliation Act. However, the said order dated 14-01-2022
passed by the Hon’ble Chairperson/MahaRERA has been challenged before


Complaint No. CC006000000334090


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the Hon’ble Appellate Tribunal in Appeal No. AT006000000053554 filed by the
said complainant-allottees therein on 19-01-2022.

18. The MahaRERA has also noticed that even the identical issue as raised by the
respondent herein seems to be pending for consideration of the Hon’ble High
Court at Bombay in Second Appel No.434 of 2023 filed by one M/s. Rashmi
Realty Builders Pvt Ltd vs Mr. Rahul Pagariya. The record also shows that in
the aforesaid Second Appeal No. 434 of 2023, the Hon’ble Bombay High Court
vide an order dated 24-07-2023 was pleased to frame the following issue :-

“Whether the jurisdiction of Real Estate Regulatory Authority established
under Section 20 of the Real Estate Regulation and Development Act, 2016 is
ousted, if the agreement between the promoter and the allottee contains
arbitration clause?

19. It shows that the said crucial issue as raised by the respondent in this complaint
(although after first hearing was done in this matter) about the maintainability
of this complaint in view of the specific “arbitration clause mentioned in the
agreement for sale executed under the MOFA” is under consideration before
the Hon’ble Bombay High Court in the aforesaid Second Appeal.

20. Hence, any decision on the aforesaid issue of maintainability raised by the
respondent promoter would definitely amount to pre-judging the issue which
is sub-judice before the Hon’ble Bombay High Court.

21. Considering these facts and in the fitness of justice, it would be just and proper
to wait for the decision of the Hon’ble Bombay High Court in pending Second
Appeal No. 434 of 2023 while taking any decision in this complaint on the
issue of maintainability. Both the parties in this complaint are directed to file


Complaint No. CC006000000334090


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an application on record of MahaRERA once the said Second Appeal No. 434
of 2023 is decided by the Hon’ble Bombay High Court. Till then, the decision
in this complaint on the issue of maintainability is kept in abeyance.


(Mahesh Pathak)
Member – 1/MahaRERA