Complaint No. CC006000000199065
& 3 ors.

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BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY
MUMBAI

1. Complaint No. CC006000000199065

Mr. Mohammad Kaleem
Mrs. Sana Hamid


... Complainant/s

Versus

Omkar Ventures Private Limited
Omkar Realtors Andheri Project Private Limited
Nirman Realtors Private Limited
Golden Age Infrastructure
Vimal Associates
Indiabulls Housing Finance Limited
Indiabulls Asset Reconstruction Company Limited
Square Yards Consulting Private Limited


..Respondent/s
Along with

2. Complaint No. CC006000000375089

Shailendra Pradeep Dave and Ors


... Complainant/s

Versus

Omkar Ventures Pvt. Ltd.


..Respondent/s
Along with

3. Complaint No. CC006000000395462

Mr. Raj Kumar
Mrs. Santosh


... Complainant/s

Versus

Manomay Ventures Private Limited &Ors. (Formerly known as Omkar Ventures )
Private Limited)
Omkar Realtors Andheri Project Private Limited


Complaint No. CC006000000199065
& 3 ors.

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Nirman Realtors Private Limited
Golden Age Infrastructure
Vimal Associates


..Respondent/s
Along with

4. Complaint No. CC006000000395803

Shajil Enara
(Heament Yadav- To be deleted as per amendment
application dated 14-06-2023)


... Complainant/s

Versus

Omkar Ventures Pvt. Ltd.


..Respondent/s

MahaRERA Project Registration No. P51800014105


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

Ld.Adv. Grishma Mahatme appeared for the complainants at sr. no. 1.
Ld.Adv.Raheja Shankarlal appeared for the complainant at sr. no. 2.
Ld.Adv. Amit Karle appeared for the complainants at sr. no. 3.
Ld.Adv. Raghav Sharma appeared for the complainant at sr. no. 4.
Ld.Adv. Namrata Powalkar appeared for Omkar Ventures Private Limited &
Manomay Ventures Pvt Ltd.
Ld. Adv. Tejas S. Mahamuni appeared for India bulls Finance ( As applicable)

ORDER
(Monday, 04th November 2024)

(Through Video Conferencing)


1. The complainants above named have filed these 4 separate online complaints
before the MahaRERA on 17/11/2021 (in sr. no. 1), on 06/04/2023 (in sr.no. 2),
on 05/05/2023 (in sr. no. 3) and on 15/05/2023 (in sr. no. 4) mainly seeking


Complaint No. CC006000000199065
& 3 ors.

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directions from MahaRERA to the respondent promoters to refund the entire
amount paid by them along with interest, compensation and cost (more
particularly described in the table below) as prescribed under the provisions of
the Real Estate (Regulation & Development) Act, 2016 (hereinafter referred to as
‘RERA’) for their respective flats ( hereinafter referred to as the said flats) as
mentioned in the table below in respect of the respondents’ registered project
known as “Lawns and Beyond – Phase 2, Omkar International District” bearing
MahaRERA registration No. P51800014105 located at Andheri, Mumbai
Suburban, Mumbai–400 060 (hereinafter referred to as the said project).

2. These complaints were clubbed together being filed with respect to the said
project and the same were by the MahaRERA on several occasions on merits and
same were finally heard on 09-07-2024 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 and argued the matter. The MahaRERA has heard the
argument of both the parties and also perused the available record.

3. After hearing the argument of the parties concerned (as per their appearances),
the following Roznama was recorded in the final hearing in these complaints.
(i) 09-07-2024: “Both the parties are present. The complainants have filed these
complaints for refund along with interest and compensation for delay except in
Sr. No. 12 (CC006000000395803), where the complainant has filed the complaint
for refund on personal grounds as he was unable to obtain the loan. Further the
name of the complainant be changed from lawyer to the complainant, as the
name of the lawyer is wrongly shown in the complaint, i.e. from “Heament
Yadav” to “Shajil Enara”. The complainants in Sr. No. 6 (CC006000000199065),
10 (CC006000000375089) and 11 (CC006000000395462) contend that the
respondent has obtained nearly 50% of the payment due as per the agreements


Complaint No. CC006000000199065
& 3 ors.

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for sale on an erroneous certificate of the architect that the construction has
started (excavation). The respondent has contended that there is an injunction
against the notice of demolition of planning authority from July 2018 till
September 2022 for 5 structures. In fact there is still an injunction for removing
2 structures because of which the respondent contended that the said period
should be included in the force majeure period, considering that the stay for Wing
G was granted by the Hon’ble Court. However, complainants contend that on a
wrong pretext nearly 50% of the consideration has been received by the
respondent. All the complainants (except in SR. No. 12) have also contended that
they are repaying the loans of the financial institution. Therefore, they seek the
refund along with interest and compensation for delay as the date of possession
mentioned in the agreements for sale of September 2020 is already over. The
respondent also contends that there is a grace period of 18 months and therefore,
the complaint at Sr. No. 6 is premature. Be that as it may, it is necessary that the
complainants upload the architect certificate on the basis of which, the
respondent has sought the payment of as per the stage of development mentioned
in the agreement for sale as well as the copies of the agreements for sale, as the
complainants have not uploaded the same in the complaints. The complainants
at Sr. No. 6 and 12 may file their rejoinder and written submissions (as
applicable) within a period of 2 weeks i.e. by 23-07-2024. While the complainants
at Sr. No. 10 and 11 may file their written submissions (as applicable) by the said
date. By which time the respondent may also file its written submissions /
additional submissions (as applicable) in Sr. No. 12. Accordingly, these matters
are reserved for orders suitably after 23-07-2024 based on the arguments of both
the parties in the hearing as well as the reply, rejoinder and written arguments
filed and the documents uploaded in the complaint.”

4. Pursuant to the aforesaid directions issued by the MahaRERA, the respondent
promoters have uploaded their written arguments/submissions on record of
MahaRERA on 22-07-2024 (in sr. no.1) , on 20-07-2024 (in sr. nos. 2, 3 and 4). The


Complaint No. CC006000000199065
& 3 ors.

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complainants at sr. nos. 2 and the 4 have uploaded their written arguments/
submission on record of MahaRERA on 23-07-2024 and 16-07-2024 respectively.
Further, the complainants at sr. no. 3 have uploaded the Architect certificate on
record of MahaRERA on 24-10-2024. The said submissions have been accepted
and taken on record. The MahaRERA has perused the available record.

5. The complainants in these complaints have provided the following information
in their respective complaints such as the details of flat/s booked, allotment
letter, total consideration and consideration paid and the reliefs sought in these
complaints :

Sr. No. / Complaint
No. / Name of the
Complainants / Flat
Details
Date of
agreement for
sale

Date of
possession as per
agreement
Consideration

Consideration
Paid
(As per online
complaints)
Relief
1CC006000000199065
Mohammad Kaleem

flat no. 903, “E”
Wing,
27-04-2018

30-09-2020 with 18
months grace
Rs. 1,36,00,000/-

Rs. 49,46,907/-
(incl. stamp duty,
registration; other
charges etc.)
from res. no. 1 to 5 -
refund
the
entire
amount along interest
with
stamp
duty,
registration and charges
paid by them;
to
make
payments
towards Pre-Emi as well
as discharge all the dues
along with interest to
the respondent no. 6 & 7,
to execute and register
the cancellation deed;
deposit any and all


Complaint No. CC006000000199065
& 3 ors.

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amounts towards pre-
EMI due and payable
and cost
From res. no. 6 & 7
to directly deal with the
respondent Nos. 1 to 5
with regard to the Loan
agreement and any and
all amounts due;
to
restrain
from
recovering any and all
amounts towards pre-
EMI due and payable;

2. CC006000000375089
Shailendra Pradeep
Dave and Hema
Dave

G-802, Tower G,
Building no. 1


23-02-2018

30-09-2020 further
18 months grace
period
Rs.1,20,00,000/-

Rs. 49,30,680/-
(Amount not
mentioned
properly.)
Before this authority
refund
the
entire
amount along interest;
withdrawal from the
project; clear the loan
account; penalty and
cost
Before
Adjudicating
Officer:
Compensation for
license
fee; compensation for
EMI’s paid to lender
with interest;
Compensation for
mental agony

3. CC006000000395462
Raj Kumar

30-06-2018

Rs.1,65,00,000/-

Rs.62,00,991/-
(excl. of stamp
Refund
the
entire
amount
along
with
stamp
duty
and
registration + Interest


Complaint No. CC006000000199065
& 3 ors.

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Flat no. 1201 on the
12th Floor
in “G” wing
30-09-2020 further
18 months grace
period
duty and
registration)
for delay; compensation;
not to create any third
party; cost

4. CC006000000395803
Shajil Enara
G-1604 and G-1605
on 16th floor
Not Executed
29-11-2017
(Booking
Application Form)
Rs.1,13,01,324/-
respectively

Rs.12,10,000/-
Refund
the
entire
amount
along
with
interest
and
compensation; cost

6. It is the case of complainants in sr. no. 1 that as per representation made by the
respondents, they purchased the said flat in the respondents registered project
under the subvention scheme. Under the said subvention scheme, the
respondents have assured that the complainants would deposit an initial amount
equivalent to 5% of the purchase price (which they had done), 80% of the total
consideration would be paid by availing a loan from one of the associated non-
banking financial companies, i.e. respondent no. 6 (as directed by the
respondents) and the balance 15% of the total consideration was payable upon
handing over of possession of the said flat. Additionally, the other condition was
that the arrangement, viz. no Pre-EMI payment till the respondents obtained
occupation certificate, was only applicable if the complainants apply for the
loan/subvention scheme through the respondents with one of their investing
partners as described in the brochure. Hence, they had no choice but to avail such
subvention scheme from the respondent no. 6. The respondents further issued
allotment letter dated 24-01-2018. The complainants further reproduced clauses
3 (1) (ii) (f) , 3 (n) of the said allotment letter. On the basis of representations of
the respondent, the complainants entered into a Tripartite Loan Agreement dated
23-05-2018. The respondent further assured the complainants, that the
respondents would make payment towards pre-EMI till possession was handed
over to the complainants. The respondents entered into a Side Letter capturing
the aforesaid understanding viz. that the respondents would pay the Pre-EMI
(interest component) to Indiabulls i.e respondent no. 6 until the OC was obtained


Complaint No. CC006000000199065
& 3 ors.

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in accordance with the subvention scheme. Thereafter, the respondents
somewhere around January 2020, have addressed a communication stating that
were awaiting further approvals from the SRA and the construction would
commence upon receipt of such approvals. Further the world was hit by the
global pandemic. The complainants therefore addressed several emails for
clarification regarding the Pre-EMI, the status of construction work etc.
Furthermore, they also addressed a complaint dated 06-10-2020 to the National
Housing Bank whereby the complainants highlighted the several breaches
committed by Indiabulls and the respondents. However, respondent no. 6
started recovering monies from the complainants and the respondents
addressed an email dated 20-10-2020 to the complainants unilaterally directing
them to continue the payment of the Pre-EMI component to Indiabulls and stated
that the respondents would reimburse the amounts to the complainants, contrary
to the representations, warranties and obligations between them. The
complainants have also sent legal notice as well as reminder letters through their
advocate dated 11-01-2021, 08-02-2021 to provide the completion date along with
stage-wise completion estimates, so that the complainants may make an
informed decision regarding whether to continue with the Project. In furtherance
of their repeated follow up, the respondent no. 6 addressed a Due Notice dated
24-02-2021 calling upon the complainants to pay the outstanding amount failing
which it would be constrained to recall the loan advanced to the complainants.
However, to their dismay, instead of redressing the complainants’ grievances, a
completely new entity, namely, Indiabulls Asset Reconstruction Company
Limited (hereinafter referred to as “IARCL”) sought to perpetrate fraud on an
innocent home-buyer by issuing a Notice dated 31-05-2021 under Section 13 (2)
of the Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (hereinafter referred to as “the SARFAESI Notice”)
and recalled the loan. They further addressed a letter to the respondents to
intimate to the complainants the steps that the respondents shall take to ensure
that the SARFAESI notice is not acted upon by respondent no. 6. They further


Complaint No. CC006000000199065
& 3 ors.

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received an email 14-07-2021 whereby the respondents attached the
commencement certificate duly revalidated. However, it is clear from the CC and
the record that the SRA has granted the necessary and requisite approvals for the
construction of the Lawns and Beyond Project for Wings A, B, C, D, F, J and K
beyond the plinth level and upto 19 floors on 01-03-2021. Thus, the respondents
have wilfully, intentionally and deliberately misled the complainants. After
much follow up with the respondents / developers and the respondent no. 6 for
its issue of the SARFAESI notice, the complainants and the representatives of
respondent nos. 1 to 5 also engaged in settlement talks to resolve the disputes
amicably. However, for reasons best known, the representatives of respondent
Nos. 1 to 5 acted in a high-handed manner. Accordingly, no settlement talks
fructified and the same failed. The complainants finally addressed the legal
notice to the respondent nos. 1 to 5 about the breaches committed by them and
sought refund along with interest as well as execution of cancellation deed for
the said flat.

7. The complainants at sr. no. 2 stated that they jointly booked the said flat in the
said project of the respondents for the total consideration out of which the
complainants have paid a substantial amount and executed registered agreement
for sale as mentioned in the table para no. 5 above. However, the respondents
failed to handover the possession of the said flat on or before 30-09-2020 as per
the said agreement for sale. On 01-03-2018 the respondents raised joint demand
towards the second instalment (10%) and third instalment (10%) along with the
Architect certificate dated 22-02-2018, that excavation work of sale building no. 1
has been initiated by the contractors. Further, the complainants submitted that
they opted for the housing loan from M/s Piramal Capital And Housing Finance
Limited. The complainants submitted that they requested for splitting second
instalments (at time of registration) and 3rd instalments (at the time of
excavation). However, the respondent failed to split the demands. Therefore, on


Complaint No. CC006000000199065
& 3 ors.

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31-03-2018, the respondents received the entire 20% from the said lender. The
respondents therefore are in receipt of 40% of the total consideration. Much
follow up was taken by the complainants with respect to the said issues.
However, the respondents failed to reply to same. The complainants have also
issued legal notice on 27-11-2022 in which they sought refund along with interest.
Further, the complainants submitted that they are bearing interest since March
2018 (Rs. 11,62,551/-) payable to the said lender Piramal Capital And Housing
Finance Limited relying on the perverse and bogus certification of respondents'
architect. Further, the complainants relied on

JUDGMENT

of Hon’ble Delhi High
court in Ramanand & Ors. v. Dr. Girish Soni & Anr., (Order dated May 21, 2020
passed in RC. REV. 447/2017).

8. The complainants at sr. no. 3 have stated that they purchased the said flat in the
respondent’s said project vide registered agreement for sale as mentioned in the
table hereinabove. The clause 4 of the said agreement pertains to the tranches of
payment of sale consideration and clause 31 pertains to the possession commitment
of the respondents. Furthermore, clause 32(b) provides for interest payable by
respondents @ PLR + 2% on the amounts paid in case of delay in possession of the
said flat in terms of the RERA. Therefore, the liability of interest on delay was also
already committed and admitted in terms of the RERA by the respondents under
the very agreement for sale. The original date of said project as per the MahaRERA
registration certificate was 31-03-2022 which has been thereafter changed without
information to the complainants to 30-03-2023. The complainants further stated that
there was a violation of section 18 of the RERA. Since the possession date was 30-
09-2020, with the so-called grace period of 18 months and considering the covid-19
moratorium of 1 year extension, even then the period for possession for the said
flat expired on 31-03-2023. The complainants further submitted that there was a
violation of section 12 by way of misrepresentation by the respondents (before the
complainants) in terms of false representation, stating falsely on their Architect’s


Complaint No. CC006000000199065
& 3 ors.

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Certificate dated 22-02-2018 that the construction has commenced in terms of the
Initiation of Excavation. In fact as per their own admission the initiation of
excavation was not commenced as per their email dated 14-04-2021 together with
email dated 18-05-2021, giving status of the construction of the Tower G in the said
project. Thus it was clearly a misrepresentation in terms of the Tower G status
which even as per the photograph/s dated 23-01-2023 clicked and obtained by one
other Home Buyer in the Project clearly show that the site of Tower G has some
slum or hut like structure/s thereon and that there was no excavation ever initiated
for Tower G in the said project. However, the money for tranche of Rs. 26,43,976 on
20-12-2018 towards the Tower G excavation was paid due to misrepresentation by
the respondents. Pertinently the status of the MahaRERA website for the said
project was examined and the same shows 0% Excavation and NIL progress in
terms of excavation or construction for Tower G even as on 18-04-2023.
Furthermore, there were several discussions and mails between the complainants
and the respondent no. 1’s company team, however it only resulted into failure
and default in handing over of the possession of the said flat. The complainants also
attempted to settle the matter amicably that the same may be resolved with the
respondents, however the respondents have continued to remain adamant and
evasive. The complainants submitted that as per the latest developments, the
respondent no. 1 CRM Team had conducted a Video Conference Meeting dated 12-
04-2023 for the allottees of the said project and admitted that the entire project had
defaulted on timelines and delayed and had given the allottees Tower wise update.
Again the respondent no. 1’s Team had candidly admitted that no work was
commenced for Tower G, due to a legal case which is sub-judice and that the work
was likely to commence post Monsoon i.e. September-October 2023 which not only
shows that the earlier commencement of excavation of Tower G was a
misrepresentation under the Architect’s Certificate issued fraudulently. Various
emails and demand letters for payment, at stage of commencement of excavation
of Tower G, are also a glaring proof and evidence of no development of Tower G
as on date in May 2023.


Complaint No. CC006000000199065
& 3 ors.

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9. The complainant at sr. no. 4 stated that he has purchased the said flats for the
investment purpose and accordingly paid the substantial amount which has been
acknowledged by the respondent. The said purchase is under the subvention
scheme. The complainant has stated that he has paid the payments as and when
demanded by the respondent. Despite that, there has been no development in the
construction of the said project within the stipulated time. Hence, the complainant
cancelled the booking of the said flat on 29-01-2020 via email which has been
approved by the respondent and it agreed to initiate refund of the amount paid by
him within 6-8 months however, it failed to comply with the same. Thereafter the
complainant sent a legal notice dated 23-12-2022 to the respondent on the ground
of false commitments, assurances made by the respondent with regards to the
subvention scheme, unfair trade practice, unscrupulous exploitation of the
consumer, unfair contract, misleading representation, breach of trust etc. However,
the respondent neglected to reply to the said notice. The complainant has uploaded
application dated 14-06-2023 for change in the name of the complainant from to
Heament Yadav to ‘Shajil Enara’.

10. The respondents on the other hand refuted the contention of the complainants by
uploading its reply on 15-01-2024 (in sr. nos. 2,3) and on 09-07-2024 (in sr. no. 4).
The respondents further submitted that the delay in possession was caused due
to the reasons such as; as per the agreement for sale clause 31, delay was caused
due to Force Majure - Covid 19 pandemic. Further delay was caused due to status
quo / injunction on the plot of the Suit Building for demolition of structure.
Moreover, with respect to initiation of construction work, the Hon’ble Ad-Hoc
& Asst Session Judge in common injunction order dated 21-07-2018 in the matter
of Rashida Javed Patel & Anr. passed an order to maintain status quo on the suit
plot for demolition of the structures. The status quo in the respect of the
structures was vacated only on 17-09-2022. Thus during the period between 21-
07-2018 till 17-09-2022 no construction was carried out. Further status quo order


Complaint No. CC006000000199065
& 3 ors.

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dated 21-07-2018 in respect of few structures is still not vacated. Due to the said
stay, the respondent could not complete the construction. Furthermore, they
have filed these complaints seeking remedy of refund with interest which would
result into sufferance of the entire project and will also affect the slum dwellers
who are still awaiting to be rehabilitated in the project. The respondent’s priority
is to complete the project utilizing funds from the RERA designated account
instead of refund of any nature and inter alia interest, in the larger interest of all
the flat purchasers.

11. The respondent no. 6 i.e Indiabulls Ltd had filed its reply in sr. no. 1 by hard copy
on 14-02-2024. It has denied each and every statement / contention made by the
complainant in her complaint. It has further stated that; the prayer against the
respondent no. 6 may be raised before the appropriate authority, as this authority
does not have jurisdiction to grant such arbitrary prayers sought by the
complainant under the provisions of RERA. Hence on this ground, the present
complaint is liable to be dismissed. Further the complainant is silent as to under
what provision such reliefs are being sought by her against the respondent no. 6.
Moreover, this authority / tribunal is not the appropriate forum to raise any
dispute / to seek any prayers against it. It had further referred section 31 of the
RERA. The respondent further relied on the order passed by the Ld. Jaipur RERA
Authority in the matter of Mukesh Agrawal vs SNG Real Estate Private Limited,
a complaint bearing no. RAJ-RERA-C-2020-3958 in which the authority has
directed them to not proceed with SARFAESI action on the ground that; the Bank
/ FI’s therein fell under the ambit of the word “Promoter” and the said Bank /
FI’s had violated section 11(4) and 15 of the Act. The said order was upheld by
the Hon’ble Rajasthan High Court vide its writ petition no. 12127/2021 and
confirmed by the Hon’ble Supreme Court in Special Leave to Appeal ( c) no. 1861-
1871/2022. Moreover, in the said matter (before the Ld. RERA Authority – High
Court – Supreme Court) the Banks had granted loan to the promoter / developer
of the project and not to the allottees. However, in the present case, the


Complaint No. CC006000000199065
& 3 ors.

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respondent no. 6 has not granted loan to the promoter / developer but the
allottees and hence the above-mentioned

JUDGEMENT

has no applicability in the
present matter. The respondent does not fall within the definition of either
promoter / allottee and or RERA. The present respondent has granted loan to the
complainants herein and started debiting EMI’s from the complainant upon
disbursing the loan amount to the developer / builder. Moreover, it has also
entered into Tripartite agreement wherein the complainant had specifically
agreed that during the Subvention Period the payment liability is joint and
several by and between the borrower and the Builder. Upon the failure of the
complainant / borrower to pay the EMI / Pre-EMI’s, the account was declared
as NPA in the light of the RBI guidelines. It has further contented that the loan
was disbursed by the respondent no. 6 in favour of the respondent no. 1 on behalf
of the complainant. As per the Tri-partite agreement and even otherwise, it is the
primary responsibility of the complainant to repay the said loan.

12. The complainants have filed rejoinder in sr. no. 2 on record of MahaRERA on 10-
02-2024 which is mere repetition of the said complaint filed by the complainants.
Additionally, the complainants submitted that respondents have demanded 30%
of sale consideration, however the respondents have collected 40% of the sale
consideration and same has been acknowledged and admitted by the
respondents vide email dated 05-03-2018, that they shall be paying interest on the
additional amount collected. Further, the complainants submitted that the
respondents after registration raised a demand of 20% i.e. amount payable at the
time of registration and on initiation of excavation work. However, the
respondents have received one additional instalment, which was never due.
Furthermore, the complainants submitted that the respondents cannot be
relieved from payment of interest as the lender has charged interest to the
complainants during the same period. Being aggrieved the complainants have
filed the said complaint.

13. The complainants at sr. no. 3 on 08-12-2023 uploaded their rejoinder and written


Complaint No. CC006000000199065
& 3 ors.

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submission on the record of the MahaRERA, wherein the complainants denied
each and every averment of the respondents. Additionally, the complainants
submitted that, the so-called fabricated case of force majeure events as per the
interpretation of respondent were not heard of in Law or even otherwise and
there were clear judgements as to Force Majeure Events and the Court Orders
due to defective Title (as in present case). There is a title issue on the Land of the
said project with a Structure from inception (which was admittedly there with
Court Orders protecting the same for all these years) which was evidence of
material misrepresentation in Title and fraud and cheating by Omkar Group
against the complainants. The same attracted section 12 of RERA as well and the
same can be seen clearly in the photographs that the Building Tower G is not
even excavated. There cannot be force majeure of Court Orders or Title Defect
resulting in Court Orders against Promoter Developer or the Promoter Developer
not receiving Permissions Like CC or OC etc. These events cannot be Force
Majeure and the Developers cannot define force majeure which was unheard of
in law. The complainants further relied upon the Hon’ble Bombay High Court


JUDGMENT

in cluster of second appeals filed by M/s. Man Global Limited vs. Mr.
Jitendra Jain & Others and such connected second appeal matters which was
clearly decided in favour of the allottees stating that the non-receipt of
Permissions or OC for the project cannot be a ground for rejection of refund or
reliefs to the allottees. In the present case, the respondent not only constructed
the building but also got OC but there was a delay and that despite the aforesaid,
the Hon’ble Bombay High Court upheld the Hon’ble MahaREAT Orders against
the Developer for delay in OC. The delay in OC could not be a ground for breach
of agreement executed by the allottee and the delay in OC or any delays caused
due to such circumstances cannot be a reason for allottee not to get refund with
interest. Judgements relied by respondent pertains to phase I of the Project
wherein there is some construction seen for the Buildings, but in the present case
the complainants, the Tower G has never seen light of the day on the site. Thus,
the said

JUDGEMENT

will not be applicable and the same is not relevant. Therefore,


Complaint No. CC006000000199065
& 3 ors.

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the complainants in view of the aforesaid submissions prayed for the reliefs as
mentioned in their complaint.

14. The complainants at sr. no. 3 also uploaded their additional rejoinder on 06-02-
2024 against the reply of the respondents on the record of the MahaRERA,
wherein the complainants have denied the averments of the respondents in toto
and have reiterated and argued all the submissions as mentioned in their
complaint and rejoinder/written submission. Additionally, the complainants
submitted that the reply filed by the respondent on 15-01-2024 was an
afterthought and at their own convenient time, as they have directly or indirectly
admitted that there was litigation in the said project land including title dispute
which was never informed to the complainants. Thus, it was an admission of the
misrepresentation made under section 12 of the RERA which would entitle the
allottees to claim refund of monies as in the present case. Thus, it was a clear
suppression of material facts from the complainants.

15. The respondent no.1 – promoter filed its written submission on 24-07-2023 & on
22-07-2024 (Sr. no.1), on 21-11-2023 (in sr. nos. 2,3) and on 20-07-2024 (sr. nos. 2,3
& 4) contending that the promoter had made no false representations as the
possession date of the flats (to the complainants) is 30-09-2020 plus grace period
of 18 months as mentioned under clause 31 of the agreement for sale which comes
to 30/04/2022. Further, the respondent contented that during the launch of the
said project the same was indicated to the complainants, that the said project
comprises of composite scheme for redevelopment of slum land and non-slum
lands which were owned by MCGM, State, MHADA. The respondent further
contended that the said project was under a subvention scheme. However, after
execution of the AFS the National Housing Bank had advised the housing finance
companies to desist from offering the subvention schemes by their Circular dated

19. 07.2019. Therefore, the subvention scheme was discontinued by the Housing
Finance Companies. The respondent further produced the dates of


Complaint No. CC006000000199065
& 3 ors.

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communications made by it for the re-imbursement of pre-EMI in a chronological
manner. Moreover, as the respondents have agreed to reimburse / refund the
Pre-EMI interest to the complainants, it cannot be said that the respondents have
made any misrepresentation / false statement to them. The respondent further
relied on the order passed by this authority in case of Sabhajit R Yadav vs Era
Realtors, in which the authority has upheld the aspect of reimbursement of Pre-
EMIs and rejected the said complaint under section 12 of the RERA. The
respondent further contended that the additional amounts taken by the
respondent in furtherance of the Subvention Scheme, was disclosed by
respondent prior to buying of the flats by the complainants and the same forms
a part of Question 33 of the Launch FAQs. However, no issues were raised by
them at the time of payment of this additional amount and the same has only
been raised by them at the time of filling of these complaints. The respondent
contended that there is no violation of section 12 of the RERA and expressly
denied that they have made any false representations in respect of the date of
possession of flats, permissions and commencement of construction, subvention
scheme payments, encumbrance on land, SRA scheme etc. Moreover, the
respondent also contended that there is no violation of section 18 of the RERA,
as the possession date agreed in the Agreement for Sale was admittedly subject
to grace period of 18 months i.e. till 30/04/2022. Hence, the respondent stated
that section 18 of the RERA cannot be invoked and the complaints of the
complainants be adjudged as premature. The respondent also stated that the date
of possession i.e. 30/04/2022 was extended as per the RERA Circulars in the light
of the Covid- 19 pandemic; to support the said claim, the respondent has relied
on the order passed by this authority in the matter of Chirag Kochar vs Omkar
Venture Ltd passed on 11-02-2021, wherein the authority was pleased to uphold
the “interpretation of the possession date and came to a conclusion that section
18 of the RERA cannot be invoked as the possession date has not arrived and the
complaint is pre-mature.” Further, the agreement for sale was also uploaded by
the respondent on the RERA website and the complainants were not forced to


Complaint No. CC006000000199065
& 3 ors.

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sign the agreement for sale. Even under the allotment letters with respect to the
complainants at sr no. 1, it has been recorded between the parties at clause 3 (a)
that the agreement for sale has been shown and agreed to by the complainants.
Moreover, it is not the case of any complainants that they were forced to sign the
allotment letter. They have suppressed the facts pertaining to the agreement for
sale. The respondent further submitted that delay in possession was beyond the
control of the respondent, and it has elaborated the reasons for delay, such as
discontinuation of subvention scheme; economic downturn and demonetization;
account becomes NPA etc. Hence, the respondent sought that the complaints of
the complainants be dismissed with costs.

16. The complainants in sr. no. 2 uploaded written submissions on record of
MahaRERA on 23-07-2024. Additionally, the complainants submitted that there
has been no disclosure that the land is in possession of a third party and there
exists any dispute. Moreover, the respondents have not disclosed the fact
whether the consent of all slum dwellers has been obtained or not. Furthermore,
no deviation report has been filed on the website till date and the respondents
have kept the complainants unaware about the title of the land under
construction including litigation (injunction on plot). Further, the complainants
submitted that the respondents have failed to complete the project as mentioned
on the MahaRERA website.

17. The complainants also uploaded written notes of arguments on 20-07-2024
wherein the complainants have submitted their issues in detailed manner.

18. The complainant at sr. no. 4 has uploaded its written submissions on record of
MahaRERA on 16-07-2024 which is mere repetition of the facts mentioned in the
complaint.

19. The MahaRERA has examined the submissions made by all parties concerned
and also perused the available record. Before dealing with these complaints
further, it is pertinent to note that the complainants while filing the said


Complaint No. CC006000000199065
& 3 ors.

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complaint at sr. no. 1 have joined all the promoters and co-promoters of this
project as respondent nos. 1 to 5 to the said complaint. All these respondents are
promoters of this project (as per the webpage information uploaded by the
promoter) represented by the respondent no. 1 viz M/s. Omkar Ventures Pvt Ltd
which have contested these complaints including the said complaint at sr. no. 1.
Hence, for the sake of brevity the respondent nos. 1 to 5 in complaint at sr. no. 1
as well as in other complaints (if joined) are hereinafter referred to as the
“promoter” for the sake of brevity. Also, the complainants be hereinafter referred
to as the “allottees”.

20. In the present case, the allottees of the present project have approached the
MahaRERA mainly seeking refund of the entire money paid by them alleging the
violation of sections 12 and 18 of the RERA ( as applicable). To support their
claims, they have relied upon various case laws with regard to the grace period
mentioned in their respective agreements for sale (of 18 months) in complaints at
sr.nos. 1 ,2 and 3 and contended that the promoter is not entitled to seek such
grace period as mentioned in their agreements for sale. They have also
contended that such grace period of 18 months is also contrary to the provisions
of section 13 of the RERA. They further claimed that the promoter has failed to
handover pos]session of the said flats to them on the agreed dates of possession
mentioned in their respective agreements for sale (details as mentioned in the
aforesaid table at para no. 5 mentioned above).

21. Further, the allottee at sr. no. 4 has sought refund due to his own personal reason
, as he could not get his home loan sanctioned for booking of the said flat done
by him vide a booking application dated 29-11-2017. The said allottee has
contended that he sought cancellation of the said booking on 29-01-2020 .
However, till date the promoter has failed to refund the said booking amount
(as mentioned in the aforesaid table at para- no. 5 above).

22. Hence, due to the aforesaid reasons all the allottees have prayed to allow these
complaints and grant refund along with interest and compensation. They further


Complaint No. CC006000000199065
& 3 ors.

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prayed for refund of the loan amount disbursed by the bank under the
subventions scheme opted by them, as the promoter has not honoured the
subvention scheme offered in the project and stopped making payments from
2019 onwards. The allottees (as applicable) have also claimed refund of stamp
duty as per the case law relied upon by them.

23. The promoter on the other hand has resisted the claim of the allottees for
violation of section 12 of the RERA. It has stated that the information provided
in the FAQ which was published by it along with the brochure is that it is an
SRA scheme, that there were encumbrances on the project land and that it was a
leasehold property. Also, all such information about the project was available on
MahaRERA website in the project registration documents. Hence, the allottees
were aware of the same at the time of booking of their respective flats. As far as
violation of section 12 of the RERA as alleged by the allottees, the promoter has
contended that there was no loss caused to the allottees because when the
subvention scheme was discontinued as per the circular of the NHB, the
promoter offered a way out for reimbursement of the Pre-EMI’s paid by the
allottees, if the allottees repay the Pre EMIs to the bank. Further, the promoter
has also contended that considering the grace period, these complaints are
premature and therefore section 18 of the RERA is not violated by it as the date
of possession had not reached when these complaints were filed before the
MahaRERA in the year 2020.

24. In addition to this it has contended that the complaint at sr. no. 1 is filed at a
premature stage, when the date of possession mentioned in the agreements for
sale duly signed with the said allottees was not over (including grace period of
18 months) on 30-03-2022 . Hence, it has prayed for dismissal of the said
complaint on that ground.

25. As far as the complaint at sr. no. 4, it has contended that the said allottee has
cancelled the said booking due to his own financial incapability and hence, it is
not liable to pay any refund along with interest as sought for by the said allottee.


Complaint No. CC006000000199065
& 3 ors.

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26. As far as the delay which has occurred in the said project is concerned, the
promoter has contended that the project got delayed mainly due to the status quo
order passed by the Hon’ble Bombay High for demolition of the 5 structures
situated on the building G to be constructed in the said project. The said stay was
continued from July, 2018 till September, 2022. Even, now the said stay is
continued with respect to the demolition of 2 structures. Hence, it has contended
that the said stay period needs to be deducted from the said delay in handing
over possession of the said flat to the allottees at sr. nos. 1, 2 and 3.

27. Be that as it may, in this case, on bare perusal of the available record, the
MahaRERA has noticed that the MahaRERA has passed an order dated 30-05-
2023 in the matters of other similarly placed allottees. However, the said order
was passed by the MahaRERA relying upon the earlier two orders dated 21-02-
2022 and 06-06-2022 passed by the Ld. erstwhile Member-1/MahaRERA in
similarly placed complaints filed with respect to the said project (although
registered in a different phase having different project registration number
(P51800014037) however, the project is one and the same and having same
layout. In the said complaints, those allotees had also pleaded similar violations
of RERA by the promoter such as sections 4,11,12,1314, including section 18 of
the RERA, as alleged by the complainant-allottees in this case and had also
prayed for identical reliefs towards the refund of the entire money paid by them
along with interest and also for compensation (in sr. no. 2). Hence, they prayed
for refund of the entire money paid by them along with interest and refund of
the Pre-EMI’s interest.

28. The record also shows that, while passing the said order dated 21-02-2022, the
Ld. Erstwhile Member-1/MahaRERA has heard the parties concerned and after
going through the facts and available record made following observations and
directions:-
“21. The MahaRERA has examined the submissions made by the complainants-
allottees as well as the respondent-promoters. In the present case, the parties


Complaint No. CC006000000199065
& 3 ors.

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have filed voluminous submissions on record of MahaRERA during the course of
hearing. After going through the said submissions the main issue which arose in
these complaints for consideration of MahaRERA is whether the complainants
are entitled to seek refund for various violations particularly sections 4, 11, 12,
14, 18 of the RERA. The complainants have alleged that the respondent promoter
has violated the provisions of sections 4, 11, 12, 14 and section 18 of the RERA
and hence they sought refund of the entire amount paid by them along with
interest and compensation for the delayed possession. In the present case, it is
an admitted fact that the said booking was done after commencement of the
RERA and hence all the provisions of the RERA and rules made thereunder are
applicable to the present case. It is also admitted fact that the said bookings
were done under the subvention scheme of 5:90:5 and the subvention lenders
namely the banks in these particular case such as Yes Bank, Axis Bank,
Indiabulls Private Limited and HDFC have also been brought in the present
litigation filed before the MahaRERA. The financial institutions have also
appeared for hearing on several occasions and made their submission on record.
In the present case, as far as the various violations cited by the complainants
the same will be examined by MahaRERA as under.

22. As far as violation of section 4 of the RERA is concerned, the complainants
have mainly stated that the respondent-promoter has failed to deposit and
utilize 70% of the amount paid by the allottee for construction of the project and
thereby violating the provisions of section 4 of the RERA.

23. In this regard, it is necessary to read the provisions of section 4 of the RERA.

4. (1) Every promoter shall make an application to the Authority for
registration of the real estate project in such form, manner, within such time
and accompanied by such fee as may be specified by the regulations made by
the Authority.


Complaint No. CC006000000199065
& 3 ors.

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(2) The promoter shall enclose the following documents along with the
application referred to in sub-section (1), namely:— (a) a brief details of his
enterprise including its name, registered address, type of enterprise
(proprietorship, societies, partnership, companies, competent authority), and
the particulars of registration, and the names and photographs of the
promoter;--------------------------------Explanation.— For the purpose of this
clause, the term "schedule bank" means a bank included in the Second
Scheduled to the Reserve Bank of India Act, 1934; (E) that he shall take all
the pending approvals on time, from the competent authorities; (F) that he
has furnished such other documents as may be prescribed by the rules or
regulations made under this Act; and (m) such other information and
documents as may be prescribed. (3) The Authority shall operationalize a
web based online system for submitting applications for registration of
projects within a period of one year from the date of its establishment.

23. The aforesaid provision of section 4 clearly provides that while
submitting the application for the registration with MahaRERA the
promoter is required to submit the information as stated in the aforesaid
provisions for registering its project with MahaRERA. However, in the
present case, the respondent has after commencement of the RERA, registered
this project by making proper application for registration. The said
application was considered on merits and accordingly, the MahaRERA has
issued registration certificate under the provisions of section 5 of the RERA.
No doubt that the provisions of section 4 of the RERA mandates the
promoter to utilize the fund received from the allottee for construction
purpose of the said project. As per section 4(ii)(d) as per the provisions, 70%
of the amount received from the allottees is to be deposited in a separate
account to be maintained in the scheduled bank to recover the cost of
construction and land cost and is required to be used for that project only.
Accordingly, the respondent has opened a separate bank account which is
reflected on MahaRERA website. It is not the case of the complainants that


Complaint No. CC006000000199065
& 3 ors.

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the respondent has taken the said amount / monies from them and deposited
in the account other than what is disclosed on MahaRERA website.
Moreover, the complainants have not produced any cogent documentary
evidence to show that the said money is used by the respondent in another
project by submitting any bank details or any other relevant documents.
Moreover, the respondent has maintained a separate account in Yes Bank
which is also party to the present complaint, have not made any submission
on record of MahaRERA that the monies paid by the allottees has been
misused or withdrawn by the respondent for any other purpose. Hence,
MahaRERA does not find any merits in the alleged violation cited by the
complainant for violation of section 4 by the respondent.

24. As far as violation of section 11 of the RERA, MahaRERA feels it
necessary to reproduce the provisions of section 11 of the RERA.

11. (1) The promoter shall, upon receiving his Login Id and password under
clause (a) of sub-section (1) or under sub-section (2) of section 5, as the case
may be, create his web page on the website of the Authority and enter all
details of the proposed project as provided under sub-section (2) of section 4,
in all the fields as provided, for public viewing, including—-----------4.------
------------------------------
(5) The promoter may cancel the allotment only in terms of the agreement for
sale: Provided that the allottee may approach the Authority for relief, if he
is aggrieved by such cancellation and such cancellation is not in accordance
with the terms of the agreement for sale, unilateral and without any
sufficient cause. (6) The promoter shall prepare and maintain all such other
details as may be specified, from time to time, by regulations made by the
Authority.

25. The aforesaid provisions of the RERA specify the functions and the duties
of promoter under the RERA. As per the said provisions, the respondent has
uploaded all the relevant information on MahaRERA website. In view of the


Complaint No. CC006000000199065
& 3 ors.

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aforesaid fact, the respondent has registered the project with MahaRERA in
the year.

26. Moreover, the said project was registered after commencement of the
RERA whereby the said project was registered on 28/10/2017 as a new
project. While registering the said project, the respondent-promoter has
provided all relevant documents mentioned in section 4 of the RERA and
obtained the registration certificate under the provisions of section 5 of the
RERA. The respondent-promoter has also uploaded relevant permissions
obtained from the concerned competent authority such as the sanctioned lay
out plan, building plan, commencement certificate etc. and same are
uploaded on MahaRERA website. The complainants though have made the
grievance about section 11 of the RERA; however, they have mainly alleged
that the respondent-promoter has failed to update the sanctioned plans and
schedule of completion of the project on MahaRERA website and thereby it
has violated the provisions of section 11. In this regard, the MahaRERA has
prima facie noticed that the respondent-promoter has registered the project
as new project by filing an application on 28/10/2017 and mentioned
proposed date of completion of the project as 30-03-2023. It shows that the
respondent-promoter while registering the project has complied with its
statutory liability and has mentioned the scheduled date of completion of
the project. Hence, the MahaRERA feels that there is no violation of section
11 of the RERA by the respondent as alleged by the complainant.

27. As far as the reliefs sought by the complainant for violation of section 14
of the RERA, MahaRERA has perused the relevant provisions of section 14
of the RERA which reads as under :

14. (1) The proposed project shall be developed and completed by the
promoter in accordance with the sanctioned plans, layout plans and
specifications as approved by the competent authorities.----------------------
--(2)---------------------------------------------------------------


Complaint No. CC006000000199065
& 3 ors.

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(3) In case any structural defect or any other defect in workmanship, quality
or provision of services or any other obligations of the promoter as per the
agreement for sale relating to such development is brought to the notice of
the promoter within a period of five years by the allottee from the date of
handing over possession, it shall be the duty of the promoter to rectify such
defects without further charge, within thirty days, and in the event of
promoter's failure to rectify such defects within such time, the aggrieved
allottees shall be entitled to receive appropriate compensation in the manner
as provided under this Act.

28. The aforesaid provisions of section 14 of the RERA clearly say that the
promoter has to adhere to the sanctioned plan and project specification while
implementing the project. It means that the promoter has to develop the
project and it should complete the same in accordance with the sanctioned
plan and the specification as approved by the competent authority. However,
in the present case the complainants have stated that the respondent has
changed the sanctioned plan without obtaining their consent and thereby
violated the proviso of section 14 of the RERA. However, the said contention
is made without submitting any cogent documentary relevant documents to
show that after commencement of the RERA, the respondent promoter has
changed the plan and carried out construction contrary to the sanctioned
plan and thereby violated section 14 of the RERA. Hence for want of any
specific evidence produced on record of MahaRERA by the complainants,
their contention for the violation of section 14 of the RERA has no substance.

29. As far as the reliefs sought by the complainants under section 18 of the
RERA, it is pertinent to refer the provisions of section 18 of the RERA which
read 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 ----------------------(2) -……………………………..


Complaint No. CC006000000199065
& 3 ors.

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(3) If the promoter fails to discharge any other obligations imposed on him
under this Act or the rules or regulations made thereunder or in accordance
with the terms and conditions of the agreement for sale, he shall be liable to
pay such compensation to the allottees, in the manner as provided under this
Act.

30. The aforesaid explicit provisions of section 18 of the RERA clearly state
that on failure of the promoter to handover the possession of the flat to the
allottee on the agreed date of possession mentioned in the agreement for sale,
the allottee has two choices, either i) to withdraw from the project or ii) to
continue with the project. If the allottee intends to withdraw from the
project, in that event, the promoter on demand of the allottee is liable to
refund the entire amount along with interest and compensation as prescribed
under RERA. If the allottee is willing to continue in the project, in that event
the promoter is liable to pay interest for the delayed possession as provided
under section 18 of the RERA in accordance with the terms and conditions of
the agreement for sale.

31. From plain reading of section 18 of the RERA, it is clear that if the
promoter fails to handover the possession as per the terms and conditions of
the agreement for sale by the specified date mentioned therein, then the
allottees have a choice as stated above. From the facts submitted on record
by these complainants prima facie, it appears that there are agreements for
sale signed and executed by and between the complainants allottees and the
respondent promoters on the date as cited in the table mentioned
hereinabove.
The said clause no. 31 reads as under ... Clause no. 31: Possession date, delay
and termination The promoter shall offer the possession of the said premises
to the allottee/s on or before 30-09-2020 subject to grace period of 18
(eighteen) months (‘Possession Date’) provided however, that the promoter
shall be entitled to an extension of time for giving delivery of the said
Premises on the Possession Date’, if the completion of the Real Estate Project


Complaint No. CC006000000199065
& 3 ors.

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is delayed on account on or all of the following factors /events (force majeure
events). –…………………
b. - .... (xh) ... or due to such circumstances as may be decided by the
Authority.

32. The aforesaid provisions of clause no. 31 of the agreement for sale duly
signed by both the parties clearly say that the respondent was liable to
handover the possession of the said flat to the complainants on or before 30-
09-2020 with grace period of 18 months. In this case, the possession date in
this case is 30-09-2020 with grace period of 18 months i.e. 31/03/2022.
However, the complainants in this case have approached MahaRERA
seeking reliefs under section 18 of the RERA by filing these complaints on
14/10/2020 i.e. before the agreed date of possession gets over. Hence,
MahaRERA prima facie feels that on the date of filing, these complaints are
pre-mature for seeking reliefs under section 18 of the RERA. Hence, the claims
of the complainants for refund along with interest and compensation has no
substance and hence the same stands rejected.

33. As far as the violation of section 12 of the RERA as alleged by the
complainant the MahaRERA has pursued the contention made by the
complainants in these complaints. Firstly, the complainants have stated that
the respondent has advertised the project with date of possession as 30-09-
2020, and it has also advertised that it had all the permission of construction
and it would start the construction within a period of three months. It has
further advertised that under the subvention scheme 5% of the consideration
value would be taken by the promoter upfront and 5% of the amount on
possession and no pre-EMI will be taken by them till the date of possession.
The respondent further represented that no additional amount would be
taken by them and also falsely advertised that the said land on which the
project is undertaken is freehold land is not encumbered under any SR
scheme. As far as the issues other than subvention scheme, such as date of
possession, construction permissions, the encumbrance details etc, the


Complaint No. CC006000000199065
& 3 ors.

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MahaRERA is of the view that since this is MahaRERA registered project all
the information pertaining to completion of the project, stage of the project
along with all requisite permissions are required to be uploaded on
MahaRERA website by the respondent at the time of registering the project
with MahaRERA.

34. The RERA registration is enacted with a view to keep transparency in the
real estate sector. Though under the MOFA, there was a provisions for
disclosure of the relevant information to the allottee at the time of booking
of their unit and there was no platform to upload the said information;
however, the RERA requisition has been enacted with a key component, for
registration of the real estate project, real estate agent, filing of the
complaints and adjudicating of the same, financial discipline and
transparency and citizen centricity. Since the respondent promoter has
registered the project with MahaRERA in the year 2017 itself, the
complainant have kept silent for period of three years and have not made any
grievance with regard to the uploading and permissions and have not
objected the said project by raising all such issues for misrepresentation as
alleged in the complaint. Hence, the MahaRERA prima facie is of the view
that there is no substance in the alleged contention raised by the respondent
promoter for providing false information and misrepresentation to them. As
the issue of subvention scheme and the non-payment of pre EMI to the bank
by the respondent promoter the MahaRERA has noticed the relevant points
in these complaints. When the said booking was done in the year 2018, the
respondents have introduced the subvention scheme to these complainants
allottees. The parties have executed the tri-partite agreement for availing the
loan under subvention scheme in the year 2018. According to the of the said
subvention agreement, the respondent has agreed to pay the EMIs to the
respondent no. 8-banks i.e. financial institutions as per the construction of
the amount disbursed by them as per the construction schedule.


Complaint No. CC006000000199065
& 3 ors.

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35. The complainant allottees have contended that they have signed the said
agreement keeping the said subvention scheme in mind and on the
representation of the respondent that they will pay the pre-EMI. However, in
the year 2019 the respondent has stopped paying the pre-EMI to the
respondent no. 8 bank in view of the letter dated 19/07/2019 issued by the
General Manager, National Housing Bank. The copy of the said letter is
submitted on record of MahaRERA. On bare perusal of the said letter dated
19/07/2019, the said letter provides as under.
Disbursement of housing loan to individuals linked to the stages of
construction
Please refer to our Circular No. NHB(ND)/DRS/PolNo.58/2013-14 dated
November 18, 2013 with reference to the issue of the Housing Finance
Companies (HFCs) as well as their individual borrowers being exposed to
additional risks in case of housing loan products involving subvention
schemes offered by the
builder/developers………………………………………….
-
…………………4……………………………………………………………………
……5…………………………………………..

6. As known, the Real Estate (Regulation and Development) Act, MTh
[RERA] hasbeen implemented in the country, inter-alia, with the objective
of regulation and promotion of the real estate sector, in an efficient and
transparent manner, and to protect the interest of consumers in the real
estate sector. HFCs while extending finance should take into account the
stipulations laid down under RERA, as applicable.
Yours faithfully,

36. From the contents of the aforesaid letter issued by the National Housing
Bank, prima facie it appears that the said scheme of subvention was stopped
for further transaction of the non-financial institutions. The said letter was
issued just to review the procedure of the disbursement by the non-financial


Complaint No. CC006000000199065
& 3 ors.

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institution. However, the said letter seems to have prospective effect and as
it talks about further transactions or disbursements to be done under the
subvention scheme. The spirit of the said letter is that no lump sum payment
should be given to the promoter and it should be made in accordance with
the construction schedule i.e. payment was linked to the construction link
disbursement. Since, the complainant allottees have opted for subvention
scheme prior to the said letter dated 19-07-2019 the MahaRERA feels that the
said letter is not applicable to the present subvention transaction or the
related contracts entered into between the parties. It does not change the
contractual liability of the promoter under the scheme implemented in the
previous year

37. In the present case, though the respondent promoter agreed to pay the
preEMI till the possession of the said flat to the complainants it has stopped
paying pre-EMI to the bank taking shelter of the aforesaid letter dated 19-
07-2019 issued by the NHB and avoided its obligation to pay pre-EMIs to the
bank and the said action on the part of the respondent promoter amounts to
misrepresentation to the complainants allottees. Moreover, the MahaRERA
has also noticed that as stated herein above, the said letter by the NHB to
discontinue the said subvention scheme like products was to prevent the
malpractices like this resulting into the exploitation of the homebuyers.
However, it does not direct the bank not to fulfil their contractual obligation
towards the borrowers whose loan has already been disbursed. Hence, the
respondent promoter cannot take shelter of these guidelines to avoid its own
commitment made under the previous subvention agreements. In the present
case, the allottees are running from pillar to post to avoid SARFAESI action
as initiated by the respondent no. 8- financial institutions. Obviously, the
allottees/ complainants feel that they have been misled or misrepresented by
the respondent promoter. The complainants are therefore, entitled to seek
refund for violation of section 12 of the RERA. The order of MahaRERA
passed in another complaint filed with respect to other project of the


Complaint No. CC006000000199065
& 3 ors.

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respondent as relied upon by the respondent promoter with regard to
subvention scheme, the MahaRERA has noticed that while passing the said
order the main letter issued by the NHB in the year July, 2019 (as mentioned
hereinabove) was not produced on record of MahaRERA by the parties
therein for consideration of MahaRERA.

38. In addition to this, in the present case, the complainants are also seeking
compensation for mental agony and harassment caused to them due to
inaction on the part of respondent promoter in reimbursement of Pre -EMI’s
to respondent nos. 8 i.e. financial institutions. In this regard, the MahaRERA
is of the view that the power to adjudicate the quantum of compensation as
provided under section 12 of the RERA falls within the jurisdiction of Ld.
Adjudicating Officer/MahaRERA under section 71 of the RERA. Hence, the
MahaRERA feels that the issue of compensation sought by these
complainants has to be dealt with by the Ld. Adjudicating Officer/
MahaRERA. The relevant provisions of section 12 are reproduced below:
Provided that if the person affected by such incorrect, false statement
contained in the notice, advertisement or prospectus, or the model apartment,
plot or building, as the case may be, intends to withdraw from the proposed
project, he shall be returned his entire investment along with interest at such
rate as may be prescribed and the compensation in the manner provided
under this Act.

39. In view of the facts and circumstances of the case as discussed above, the
following order is passed:-
a. The complainants are allowed to withdraw from the project.
b. The respondent-promoter is directed to refund the entire amount paid by
the complainants along with interest at the rate prescribed under RERA i.e.
Marginal Cost of funds based Lending Rate (MCLR) of the State Bank of
India (SBI) + 2% within 3 months.
c. The respondent promoter is also responsible to pay back the bank dues to
the respondent no. 8 i.e. the financial institutions including the loan amount


Complaint No. CC006000000199065
& 3 ors.

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and the interest thereon if any. d. With regard to the payment of interest,
MahaRERA further directs that the respondent promoter is entitled to claim
the benefit of “Moratorium Period” as mentioned in the notification/ order
no. 13 and 14 dated 02-04-2020 and 18-05-2020 issued by MahaRERA and the
notification / order which may be issued in this regard from time to time.
e. To decide the quantum of compensation under section 12 of the RERA
these complaints stand transferred to Ld. Adjudicating Officer/MahaRERA
Mumbai.”
20 . Moreso, in view of the aforesaid observations made by the Ld. Erstwhile
Member-1/MahaRERA, this Bench has also passed a common order 30-05-
2023 in the matter of other 41 similarly placed complaints filed by the other
allottees of this project, in other phase of this project registered in different
MahaRERA Project Registration i.e. P51800014037 and also in this particular
phase of the project registered by the promoter in a different project
registration number. In the said order, the MahaRERA has issued following
directions:-
“35.In view of these facts and in compliance of principles of natural justice,
the following order is passed:-
a. All these 41 complaints stand partly allowed.
b. The promoter is directed to refund the entire money paid by the allottees
towards the consideration of their respective flats along with interest 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 the date of payment till the actual realisation of the said money to
the allottees. The promoter may also repay the respondent No. 8,
Financial Institution loan and interest amount if any.
c. Needless to state here, that the actual amount as provided under section
18 of the RERA means the amounts paid by the allottees towards the


Complaint No. CC006000000199065
& 3 ors.

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consideration of their respective flats only, excluding the stamp duty,
registration charges and taxes etc. paid to the government.
d. However, in view of the mitigating circumstances beyond the control of
the respondent promoter and also to ensure that the said project is not
jeopardised due to the outflow of finances and is completed keeping in
mind the interest of the other buyers of the said project at large, the
amount of refund along with interest payable by the promoter to the
allottees shall be made after 29-03-2024 i.e. revised completion date of
this project mentioned by the promoter on the MahaRERA website.
e. Till such payment, the promoter shall be liable to make the payments
towards the Pre-EMI’s to the financial institutions on behalf of the
allottees.
f. The allottees are also directed to execute a cancellation deed on receipt
of payment of refund from the promoter.
g. With regard to the payment of interest to the allottees , the MahaRERA
further directs that the promoter is entitled to claim the benefit of
“moratorium period” as mentioned in the Notifications/ Orders nos. 13
and 14 dated 2nd April 2020 and 18th May 2020 issued by the MahaRERA
and the Notification/ Order which may be issued in this regard from time
to time.
h. The

INTERIM ORDER

dated 13-09-2022 passed by the MahaRERA as stated
hereinabove shall remain in force till final realisation of the said money
to these allottees. It is further directed that the said

INTERIM ORDER

shall
apply to all these allottees being part of the same project.
i. There are no directions as to compensation as the same is not pressed for
by the allottees.

36. With these directions, all forty-one complaints stand disposed of. ”
21 . In view of these facts noticed by the MahaRERA, it appears that in this case,
the allottees at sr. nos. 1, 2 and 3 are similarly placed allottees who have


Complaint No. CC006000000199065
& 3 ors.

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raised similar issues as raised in the said similar complaints. Hence, these
allottees are also seeking similar order in these complaints.

22. Further as far as the alleged violation of section 18 of the RERA cited by the
allottees at sr. nos. 1, 2 and 3 is concerned, admittedly, as per the agreements
for sale dated 27-04-2018, 23-02-2018 and 30-06-2018 (respectively)the
promoter was liable to handover possession of the said flats to the said
allottees on or before 30-09-2020 with grace period of 18 months i.e. 31-03-

2022. However, the possession was not handed over to the said allottees on
the said agreed date of possession.

23. The promoter in reply to the said complaints has claimed that the project
got delayed mainly due to the stay on the demolition of 5 structure by the
Hon’ble High Court at Bombay from July 2018 till September, 2022. The
MahaRERA is of the view that the said reason of delay cannot be considered
as a plausible justification which is beyond the control of the promoter. It is
ostensibly because to get all the requisite permissions for construction in a
timebound manner is the duty of the promoter. The allottees have nothing to
do with the same.

24. However, the MahaRERA has noticed that admittedly, the Covid -19
pandemic occurred after execution of the said agreements for sale dated 27-
04-2018, 23-02-2018 and 30-06-2018 (respectively). Further, the said pandemic
severely affected all sectors of society especially the real estate sector and
taking into consideration the said pandemic, the MahaRERA has issued
various orders/notification and granted one year extension in completion of
projects registered with the MahaRERA.

25. Considering the said one year grace period granted by the MahaRERA, the
date of possession in this case gets extended till 31-03-2023 from 31-03-2022.
However, even on that date the project was incomplete and possession was
not handed over to the said allottees. The promoter although has claimed that


Complaint No. CC006000000199065
& 3 ors.

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the complaint a at sr. no. 1 is premature to seek reliefs under section 18 of the
RERA, the MahaRERA is of the view that even as on date the project is
incomplete and the possession was not offered to the said allottees. Hence,
the said allottees although have filed the said complaint at a premature stage
on 17-11-2021, the MahaRERA cannot reject the said complaint merely on the
said technical ground. It is ostensibly because the project is still incomplete.
It shows that the promoter has violated the provisions of section 18 of the
RERA. Hence, the said allottees at sr. nos. 1, 2 and 3 are entitled to seek refund
along with interest under the provisions of section 18 of the RERA.

26. As far as the claim of the allottee at sr. no. 4 towards refund along with interest
and compensation sought under the provisions of the RERA, the MahaRERA
has noticed admittedly, there is no allotment letter/ agreement for sale signed
by the said allottee showing any agreed date of possession, which has lapsed.
Further, the said allottee has failed to show any agreed date of possession
mentioned in the booking application form duly signed by him at the time of
booking. Moreso, the said allottee admittedly has sought refund since he
could not get the home loan sanctioned, which seems to be a personal issue
and not due to any default on the part of the promoter. Hence, the said claim
of refund sought by the said allottee cannot be considered favourably under
the provisions of the RERA.

27. In this regard, it is pertinent to note that the MahaRERA has recently issued
an Order No. 35/2022 dated 12-08-2022 with respect to the prescribed format
of allotment letter, which permits the promoter to forfeit 2% amount in case
of any cancellation done by the allottee. Although the aforesaid MahaRERA
order is issued recently (in the year 2022), however, earlier there was no
prescribed format of allotment letter issued by the MahaRERA (even in this
case no specific cancellation policy before execution of the agreement for
sale).


Complaint No. CC006000000199065
& 3 ors.

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28. Now the settled principle for cancellation of the booking (before the execution
of agreement for sale is executed) has been prescribed by the MahaRERA by
way of such order. Further, as per the webpage information uploaded by the
promoter on the MahaRERA website, the respondent has not uploaded any
deviation report to the said Order No. 35 dated 12-08-2022 issued by the
MahaRERA. In view of the above, since this project is registered with the
MahaRERA, the said MahaRERA Order can be made applicable to the case
of the allottee at sr. no. 4 for cancellation of the said booking sought by the
allottee. Hence, the said allottee at sr. no. 4 is entitled to seek refund as per
the said MahaRERA Order No. 35 dated 12-08-2022.

29. As far as the claim of compensation sought by the allottees at sr. nos. 1 and
3, the MahaRERA has noticed that the said allottees during the course of
hearing have not pressed for compensation and also to transfer the said
complaints to the Ld. Adjudicating Officer/MahaRERA for deciding the
quantum of compensation under sections 71 and 72 of the RERA. Needless to
state here, as per the explicit provisions of the RERA, the MahaRERA has no
jurisdiction to grant any compensation to the allottees. However, the said
allottees at sr. nos. 1 and 3 are always at liberty to agitate their grievances
about the compensation by filing separate complaints before the Ld.
Adjudicating Officer/ MahaRERA in Form-B as prescribed under relevant
Rules framed under the RERA, if they so desire.

30. However, as far as the allottees at sr. no. 2 are concerned, the MahaRERA has
noticed that they have filed the said complaint addressing the same to
MahaRERA as well as the Ld. Adjudicating Officer. Hence, the said complaint
needs to be referred to Ld. Adjudicating Officer, for contemplating action
under sections 71 and 72 of the RERA.

31. In the present case, it is pertinent to note that there are various orders passed


Complaint No. CC006000000199065
& 3 ors.

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by the MahaRERA deferring such refund /payment of interest till date of
completion of the project i.e. till the date of occupancy certificate is obtained.
Such directions are issued by the MahaRERA mainly keeping the interest of
the project and to ensure timely completion of the project. No doubt the main
intention of the RERA legislation is not only to regulate but to ensure the
development which will happen only when the project gets completed in a
time bound manner. The diversion of funds during the implementation of the
project would definitely affect the cash flow in the project and the possibility
that the project may get further delayed. The same may result into further
delay in possession of the flats to the homebuyers who seek possession of
their flats. The provisions of sections 37 read with sections 11, 14 and 34 of
the RERA, empowers the MahaRERA to issue such direction to achieve the
aim and object of the RERA. Hence, issuing such directions, may definitely
not amount to the dilution of any other provisions of the RERA.

32. In addition to this, it is pertinent to note that the MahaRERA by issuing
various orders has declared the covid-19 pandemic period as force majeure
factor which is beyond the control of the promoter. Accordingly, the one-year
grace period is given to all the promoters which have registered their projects
with MahaRERA. Furthermore, it is pertinent to note that the Hon’ble
Bombay High Court by considering the lockdown restriction issued by the
Central as well as the State Government on account of the said Covid-19
pandemic has issued various orders in Suo Moto PIL No. 1 of 2021 thereby
extending the interim orders passed by it in various matters. Even, the
Hon’ble Supreme Court of India by taking cognizance of the said epidemic
has also passed various orders in Suo Moto Writ Petition (Civil) No. 3 of 2020
and has extended the limitation period from 15-03-2020 till 28-02-2022,
thereby the said period was excluded for the purposes of limitation as may
be prescribed under any general or special laws in respect of all the judicial
or quasi-judicial proceedings. No doubt the said pandemic affected all sectors


Complaint No. CC006000000199065
& 3 ors.

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of the society including the real estate sector. Keeping the same in mind, the
MahaRERA has taken such general decision by issuing said orders in the
interest of all the projects registered with the MahaRERA. Hence, the
promoter in this case, is also entitled to seek benefit of the said covid-19
pandemic while making the payments towards the interest amount. The said
general decisions cannot be changed for this particular project nor any
exception can be made considering the above.

33. As far as the issue of subvention scheme and the reliefs sought by the allottees
herein (as applicable), the MahaRERA is of the view that the MahaRERA has
no jurisdiction to try and entertain disputes which arise out of the Tri-partite
Agreements signed by the parties concerned under subvention scheme.
However, in this case, the record shows that in the earlier orders (as referred
above), the directions seems to have been given to the promoter to re-imburse
the Pre-EMI interest till the refund is paid to the said complainant allottees.
Hence, these allottees being similarly placed allottees are also entitled to seek
similar reliefs.

25. In view of these facts, and in compliance of principles of natural justice, the
following order is passed:-
a. These complaints are partly allowed.
b. The claim of compensation sought by the allottees at sr. nos. 1 and 3 stands
rejected in view of the observations made in aforesaid para-no.29.
c. The claim for refund along with interest and compensation sought by the
allottee at sr. no. 4 stand rejected in view of the observations made in
aforesaid para-no.26.
d. The promoter is directed to refund the money paid by the allottee at sr. no.
4 towards the consideration of the said flats without any interest, after
deducting 2% of the total consideration (value) of the said flats (excluding


Complaint No. CC006000000199065
& 3 ors.

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the statutory dues paid to the government/brokerage if any) within a
period of 45 days from the date of this order.
e. The promoter is directed to refund the entire money paid by the allottees
at sr. nos. 1, 2 and 3 towards the consideration of their respective flats
along with interest 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 the date of payment till the actual realisation of the said
money to the allottees.
f. Needless to state here, that the actual amount as provided under section 18
of the RERA means the amounts paid by the allottees at sr. nos. 1, 2 and 3
towards the consideration of their respective flats only, excluding the
stamp duty, registration charges and taxes etc. paid to the government.
g. However, in view of the mitigating circumstances beyond the control of
the promoter and also to ensure that the said project is not jeopardised due
to the outflow of finances and is completed keeping in mind the interest of
the other buyers of the said project at large, the amount of refund along
with interest payable by the promoter to the allottees at sr. nos. 1, 2 and 3
shall be made after obtaining full OC for this project.
h. Till such payment, the promoter shall be liable to reimburse the said
payments to the allottees at sr. nos. 1, 2 and 3 made towards the Pre-EMI’s
to the financial institutions (as directed in the earlier orders passed by the
MahaRERA as referred above).
i. The allottees at sr. nos. 1, 2 and 3 are also directed to execute the
cancellation deeds on receipt of payment of refund from the promoter.
j. With regard to the payment of interest to the allottees at sr. nos. 1, 2 and 3,
the MahaRERA further directs that the promoter is entitled to claim the
benefit of “moratorium period” as mentioned in the Notifications/ Orders
nos. 13 and 14 dated 2nd April 2020, 18th May 2020 and 6th August, 2021


Complaint No. CC006000000199065
& 3 ors.

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issued by the MahaRERA and the Notification/ Order which may be
issued in this regard from time to time.
k. For adjudging the quantum of compensation under sections 71 and 72 of
the RERA, the complaint at sr. no. 2 stands transferred to the Ld.
Adjudicating Officer/MahaRERA.

26. With these directions all 4 complaints stand disposed of.


(Mahesh Pathak)
Member – 1/MahaRERA