Complaint No. CC006000000344196


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BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY
AUTHORITY, MUMBAI


Complaint No. CC006000000344196


Alwyn Prasad D’Mello


... Complainant/s

Versus

Mount Hill Realty Pvt Ltd


... Respondent/s


MahaRERA Project Registration No. P52000005147


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

POA - Lanson Prasad Dmello appeared for the complainant.
Ld. Adv. Anwar Landge appeared for the respondent.


INTERIM ORDER


(Friday,20th September 2024)

(Through Video Conferencing)


1. The complainant above named has filed this online complaint before the
MahaRERA on 02/02/2023 mainly seeking directions from MahaRERA to the
respondents to refund the entire amount paid by him along with interest,
compensation as prescribed under the provisions of the Real Estate
(Regulation & Development) Act, 2016 (hereinafter referred to as ‘RERA’) in
respect of the booking of the flat bearing no. 502 on 5th floor in H- Wing of the
Respondent’s registered project known as “Pyramid” bearing MahaRERA
registration No. P52000005147 located at Majgaon Ambivali, Raigarh
(hereinafter referred to as the “said flat”).



Complaint No. CC006000000344196


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2. This complaint was heard by the MahaRERA on 30/11/2023, 29/02/2024, and
finally on 30/05/2024 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 29/02/2024:
“Both the parties are present. At the outset, the respondent has uploaded an
application today mentioning that the reply earlier filed in this complaint
was filed by mistake and it wishes to withdraw the said reply. Therefore, the
said request is allowed. The respondent has further contended that
admittedly the complainant has paid the said money to some third party
who has nothing to do with the promoter and monies have not been received
by the respondent. However, the complainant refutes this contention of the
respondent by mentioning that he has made the payments to one Serenity RE
who further transferred the money to M/s. Garnet which is a partner
company of the respondent. Therefore, at the outset the respondent has raised
the issue of maintainability of this complaint questioning the locus standi
of the complainant as an allottee in the project. The respondent may file its
reply on the issue of maintainability of this complaint within a period of 2
weeks i.e. by 14-03-2024. Further 2 weeks’ time i.e. till 28-03-2024 is granted
to the complainant to file a rejoinder to the said reply on the issue of
maintainability of this complaint. Accordingly, this matter is adjourned to
a suitable date after 28-03-2024 for final arguments by both the sides on the


Complaint No. CC006000000344196


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issue of maintainability. List the matter for next hearing on 30-05-2024.”

ii)
On 30/05/2024 :
“Both the parties are present. The matter was kept today for final arguments
by both the sides on the issue of maintainability of this complaint. The
respondent has filed its reply and written submissions and the complainant
has filed rejoinder and written submissions in the complaint. The main issue
raised by the respondent is of privity, as the complainant has paid the money
to one Serenity who further transferred the money to Garnet. Admittedly,
there is no allotment letter or booking application form issued by the
respondent to the complainant. Moreover, the respondent also claims that
neither Serenity is an authorized agent in the project nor it has any relation
with Garnet, which although the complainant claims to be a company of the
respondent, is not shown as a promoter in the project registration. However,
the complainant refutes these contentions of the respondent. The respondent
has further pointed out that it has not received any money on behalf of the
complainant for the said booking. In view of the above, this matter is reserved
for orders on the issue of maintainability of this complaint based on the
arguments of both 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 such an order on the maintainability is issued.”

4. Pursuant to the said directions the complainant on 14/06/2024 has uploaded
his rejoinder on record of MahaRERA. Despite directions, the respondent
uploaded no further document or submission on record of MahaRERA. Hence,
the MahaRERA has perused the available record.

5. It is the case of the complainant, that he booked the said flat bearing flat no.
502 on 5th floor in H-Wing of the respondent’s registered project for a total
consideration of Rs. 64,64,630/- out of which they have paid an amount of
Rs.10,67,486/-. Further, the ARF (Booking Form) was signed in Dubai between


Complaint No. CC006000000344196


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the parties on 20/06/2016. The respondent had assured to timely handover the
possession of the said flat. Furthermore, till date they had paid 20% of the
consideration amount. However, the respondent has failed to handover the
possession of the said flat and also execute the agreement for sale (AFS). He
further stated that the said flat was booked under the subvention scheme and
due to no progress in the said project, he intimated the representative of the
respondent in the month of April 2019 to cancel the said booking and to
refund the entire money paid by him. Further, all the necessary documents
along with cancellation letter dated 02/04/2022 were sent to the respondent
through post and the same was acknowledged. However, no action was taken
by the respondent. Hence, being aggrieved by such inaction on the part of the
respondent, he has filed this complaint seeking refund of entire money paid
by him along with interest and compensation.

6. The respondent although has uploaded its reply to this complaint on
15/12/2023, it has withdrawn the same by filing an application for withdrawal
of the said reply on record of MahaRERA on 29/02/2024 stating that the same
is uploaded inadvertently; and has also uploaded a new reply on record of
MahaRERA. The respondent stated that the present complaint is not
maintainable, as the complainant is an NRI (Non- Resident Indian) who
allegedly has booked a flat in the said project. However, it has contended that
it has not received any consideration amount from the complainant nor it has
issued any receipts acknowledging the said payment. Although the said
project is having MahaRERA validity till December 2024, and most flats of the
said project are sold and the respondent has executed respective agreements
with the bona fide allottees. The respondent stated that the complaint is false
and should be dismissed.

7. The complainant on 28/05/2024 has uploaded the synopsis on record of


Complaint No. CC006000000344196


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MahaRERA, wherein he has stated that the funds were collected by the parent
company of the promoter – respondent namely ‘Serenity Real Estate’. The said
project is a joint venture project between Garnet Construction Pvt. Ltd. and the
respondent viz. Mount Hill Real Estate Pvt. Ltd. Hence, the said Serenity Real
Estate is also holding substantial interest in the project. The complainant has
also informed the issue of refund to the Khalapur Police station.

8. The complainant on 14/06/2024 has uploaded rejoinder on record of
MahaRERA, wherein he has stated that M/s. Garnet Construction Pvt. is the
landowner and the respondent viz. Mount Hill Real Estate Pvt. Ltd. is the
developer of the said project. Further, the complainant has booked the said flat
in Dubai by an Apartment Reservation Form (AFR) on 20/06/2016 through
the parent company namely ‘Serenity Real Estate’ and transferred the
consideration amounts.

9. The MahaRERA has examined the rival submissions made by both the parties
and also perused the available record. By filing this complaint, the
complainant claiming to be an allottee of this project has approached the
MahaRERA mainly seeking refund of the entire money paid by him along with
interest and compensation on account of delay in handing over possession of
the said flat and also due to non-execution of the registered agreement for sale.
The complainant has agitated the said claim by virtue of the “Apartment
Reservation Form (ARF)” dated 20-06-2016 signed by him.

10. The respondent has assailed the aforesaid claim agitated by the complainant
mainly raising an issue of maintainability of this complaint on the ground that
it has no privity of contract with the complainant. It has contended that the
complainant has made the said payment to a third party which is nothing to
do with it. As it has not received any money from the complainant, the


Complaint No. CC006000000344196


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complainant has no locus standi in this project as he is not an allottee in the
said project.

11. In view of the aforesaid issue of maintainability raised by the respondent
during the hearing held on 29-02-2024, the MahaRERA has directed both the
parties to file their respective submissions on record of MahaRERA on the said
issue of maintainability raised by the respondent.

12. Accordingly, both the parties have submitted their respective written
submissions on record of MahaRERA.

13. In view of the above, before dealing with this complaint on merits, the
MahaRERA has to decide the said issue of maintainability of this complaint
raised by the respondent being a preliminary issue.

14. The respondent has mainly contended that the complainant has paid the said
money to one “M/s. Serenity Real Estate” and the said company has nothing
to do with it. Also, it has neither received any payment from the complainant
nor it has issued any payment receipt acknowledging the said payment. On
these grounds itself, it has contended that the complainant has no locus standi
in this project and hence, it has prayed for dismissal of this complaint being
not maintainable in this project.

15. The complainant in reply to the said issue of maintainability raised by the
respondent has mainly contended that he booked the said flat vide the said
ARF dated 20-06-2016. Also, the said ‘Serenity Real Estate’ is the parent
company of the respondent to whom he has paid the said money and the said
company has transferred the same to one M/s. Garnet Construction Pvt Ltd,
who is the owner of the project land. It has also contended that the respondent


Complaint No. CC006000000344196


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is developing the said project along with the said landowner viz M/s. Garnet
Construction. Hence, he has stated that he has privity of contract with the
respondent herein and has also locus standi in this project being an allottee of
the said project. The complainant therefore prayed to allow this complaint.

16. In the present case, the MahaRERA has perused certain documents which
seems to be relevant to decide the issue of privity of contract between the
present complaint and the respondent herein. Admittedly, the complainant
has booked the said flat no. H-502 through one M/s. Serenity Real Estate,
which seems to be a broker through whom the complainant has booked the
said flat at Dubai. Also, on bare perusal of the payment acknowledgment
receipts dated 28-02-2018 and 27-03-2018 submitted by the complainant, it
appears that the complainant although has issued the said cheques in the name
of “M/s. Serenity Real Estate” which seems to be a Broker through which the
said booking was done by the complainant. However, below the said
acknowledgment receipts dated 28-02-2018 and 27-03-2018, it is mentioned
(with the seal of the respondent) that “once realised, amount to be transferred
to Mount Hill Realty”. It shows that the said broker has accepted the said
money from the complainant towards the said booking on behalf of the
respondent herein. Hence, the respondent cannot say that it has no privity of
contract with the complainant herein.

17. Moreso, on bare perusal of the email dated 11-11-2022 sent by the respondent
herein to the complainant, it appears that vide the said email the respondent
has informed to the complainant that “We refer to your Application Form, we have
Provisionally Booked the above-mentioned Apartment, subject to the terms and
conditions mentioned in the said AWe have vide our various Emails, Phone Calls &
other mode of correspondences intimated you to make the due payment towards the
above mentioned Apartmbut still you failed to deposit the said amount as mentioned
in the Demand Notice. This, Demand Amount was Payable by you is according to our


Complaint No. CC006000000344196


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agreed Term We are hereby sending you this final termination notice for cancellation
of your provisionally booked apartment in Panvel Hills The Pyramid Project Flat no -
502 in H Wing, subject to the terms and condition mentioned in the Application form.
In case you want to retain the apartment, you are requested to pay us the outstanding
amount till date within the next 7 days. If we don’t receive any communchoice rather
than cancelling your provisional booking in Panvel Hills The Pyramid project. In case
we don’t hear anything from you, this mail will be treated as a final mail of termination
for your provisionally booked apartment in in Panvel Hills Theand we would be fully
entitled to deal with and dispose of the said flat without recourse or reference to you.

18. The aforesaid termination notice has been submitted by the complainant on
record of MahaRERA on 14-06-2024, subsequent to the final hearing done in
this complaint on 30-05-2024. However, the respondent has not filed any reply
to the said termination notice uploaded by the complainant on record of
MahaRERA. The respondent on one side is raising the issue of privity of
contract with the complainant contending that he is not an allottee and on the
side it is issuing such termination notice to the complaint. It shows that if there
is a termination notice, therefore, there is allotment of the said flat done in
favour of the complainant. The MahaRERA therefore feels that all these issues
need to be looked into by the MahaRERA by deciding this complaint on merits.

19. In view of these facts, the MahaRERA does not find any merits in the said issue
of maintainability raised by the respondent on the ground of privity. Hence,
the same stands rejected.

20. Accordingly, the registry is directed to list this complaint for next hearing as
per its seniority.

(Mahesh Pathak)
Member – 1/MahaRERA