Complaint No. CC006000000500581
and CC006000000500583

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BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY
AUTHORITY, MUMBAI

1. Complaint No. CC006000000500581

1. Mohan Laxman Ved

2. Urvashi Mohan Ved

3. Aakash Mohan Ved


... Complainants

Versus

1. Aditya Developers

2. Tuvin Consultancy LLP

3. State Bank of India Employees
Raag Vihar Co-Hsg Soc. Ltd


.... Respondents
Along with

2. Complaint No. CC006000000500583

1. Nitin N Sampat

2. Aarti Nitin Sampat


... Complainants

Versus

1. Aditya Developers

2. Tuvin Consultancy LLP

3. State Bank of India Employees
Raag Vihar Co-HSG SOC LTD


... Respondents


MahaRERA Project Registration No. P51800007223


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

Ld. Adv. Pragati Bandarkar appeared for the complainants.
None appeared for the respondent no. 1.
Ld. Adv. Rohit M. Yadav i/b Adv. Bhavin R Bhatia appeared for the respondent
no. 2 and 3
INTERIM ORDER
(

INTERIM ORDER

pronounced on Tuesday, 30th December 2024)
(Matter reserved for order on 05th August 2024)


Complaint No. CC006000000500581
and CC006000000500583

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(Through Video Conferencing)


1. The complainants above named have filed these 2 separate online complaints
before the MahaRERA on 29-05-2024 respectively seeking directions from
MahaRERA to the respondent – promoter to handover the possession of their
flats with the occupation certificate; interest till handing over the possession,
compensation for delay; cost; and to refrain from creating third party rights on
the said flats as prescribed under the provisions of the section 18 of the Real
Estate (Regulation & Development) Act, 2016 (hereinafter referred to as
‘RERA’) in respect of the bookings of their respective flats as mention in the
para 5 in the respondent – promoter’s registered project known as “SBI
RAGVIHAR CHS” bearing MahaRERA registration no. P51800007223 located
at Borivali, Mumbai.

2. These complaints were clubbed together and the same were heard by the
MahaRERA on 26-06-2024 and finally on 05-08-2024 on merits 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, the parties appeared for the hearing
as per their appearances recorded in the Roznama and made their respective
submissions.

3. After hearing the arguments of the parties, as per their appearance, the
following Roznamas were recorded in these complaints–
On 26-06-2024
““First Hearing Matter” Both the parties are present. Both the parties desire
that these matters be fixed for hearing on merits. However, the complainants
also pray for injunction not to create any third-party rights in their


Complaint No. CC006000000500581
and CC006000000500583

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allotments. Therefore, the respondent is directed to file its reply in respect of
the said prayer of the complainants of not creating any third-party rights
within a period of 2 weeks i.e. by 10-07-2024. Further 2 weeks’ time i.e. till 24-
07-2024 is granted to the complainants to file a rejoinder to the said replies of
the respondent. The complainants may serve the copies of the complaints
along with the prayer for injunction on the respondents immediately.
Accordingly, these matters are adjourned to a suitable date after 24-07-2024
for.”
On 05-08-2024
““First Hearing Matter” The complainants are present. The respondent no.2 is
present. Rest of the respondents are absent. The respondent no.2 has filed a
reply, and the complainant has filed rejoinder to the said reply. The matter
was kept only for arguments on the prayers for injunction so that the
respondents don’t not create third party rights in the project. The
complainants have pointed out to a similar

INTERIM ORDER

dated 27-5-2024
passed in
complaint no. CC006000000480104
and therefore prays that as the
complainants are similarly placed complainants in the same project, the said
orders could be passed in respect of the complainants as well. However, the
respondent no.2 has refuted this contention of the complainants and has
pointed out that the project has been taken over by respondent no.2 as the
respondent no.1 was terminated by the society and it is not vide an order under
section 15 and therefore, there is no privity of the complainants with
respondent no.2 and whatever payments have been made are to respondent
no.1 by the complainants. Therefore, they have privity with respondent no.1.
The respondent has also contended that the said order mentioned by the
complainants has already been challenged before the Hon’ble MahaRERA
Appellate Tribunal. In view of the above, both the parties may file their
written arguments within a period of one week i.e. by 12-08-2024. The matter
is accordingly reserved for orders on the issue of injunction suitably after 12-
08-2024 based on the arguments of both sides as well as the reply, rejoinder,


Complaint No. CC006000000500581
and CC006000000500583

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written arguments and the case law uploaded by both the parties in the
complaint.”

4. Pursuant to aforesaid directions issued by the MahaRERA, the complainants
have uploaded their written submissions along with precedents

JUDGEMENT

in
support of their claim on record of MahaRERA on 20-08-2024 and on 11-09-

2024. The said submissions have been accepted and taken on record. The
MahaRERA has perused the available record.

5. The complainants by filing these online complaints before the MahaRERA
have prayed for possession along with interest and compensation for delay.
The information provided by them in their online complaints regarding the
details of the flat booked, date of agreement for sale, date of possession as per
the agreement for sale, total consideration of the flat, total consideration paid
by them and relief sought is as under –
Sr. No.

Complaint No.

Flat
Details

Date of
Agreement for
Sale
Date of
Possession
Total Consideration
Consideration Paid

1. CC006000000500581
A-502 on the 5th
floor
29-06-2019

On or before
June 2020
Rs.1,05,00,000/-
Rs. 30,00,000/-

2. CC006000000500583
A-602 on the 5th
floor
04-07-2019
On or before
June 2020
Rs.1,05,00,000/-
Rs.35,00,000/-

6. These complaints were heard by the MahaRERA on 26-06-2024 as first hearing
matters, when the complainants and the respondent no. 2 (newly appointed


Complaint No. CC006000000500581
and CC006000000500583

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promoter) appeared and made their respective submissions. During the course of
the said hearing, the complainants prayed for interim reliefs for an injunction against
the respondents from creating any third party rights in respect of their flats. Hence,
both the parties were directed to upload their respective submissions on record of
MahaRERA.

7. Accordingly, in these complaints, the MahaRERA has heard both the parties viz. the
complainants and the respondent no. 2 on the said issue of interim reliefs sought by
the complainants.

8. In the present case, the respondent no. 1 is a promoter (hereinafter referred to as the
‘erstwhile promoter’ for the sake of brevity) which has registered the said project
with the MahaRERA. The respondent no. 3 is a registered society, who is owner of
the project land (hereinafter referred to as the ‘said society’ for the sake of brevity).
The respondent no. 2 is a promoter of the said project, which has been appointed as
new promoter by the said society (hereinafter referred to as the ‘new promoter’ for
the sake of brevity).

9. The complainants have contended that the erstwhile promoter which has registered
the said project with the MahaRERA has executed the registered agreements for sale
with them on the dates mentioned in the aforesaid table at para-no. 5. As per clause
6 of the agreement for sale it had assured them to handover the possession of the
said flats on or by June 2020 (in both these matters). However, it has failed to do so.
Moreover, they started taking follow up with it via phone calls, by visiting its office
asking the reason for the delay in handing over the possession of the said flats.
However, it never replied to the same and has also failed to provide any reasonable
explanation for the delay caused by it. Thereafter, in the year 2020, the society (who
is the owner of the project land) has terminated the appointment of the erstwhile
promoter due to its failure to provide the possession of the said flats on the agreed
timeline and also due to slow work progress on the project site. In addition to that,
the Hon’ble High Court of Bombay by an order viz. Arbitration petition (L)


Complaint No. CC006000000500581
and CC006000000500583

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14933/2021 on 04-08-2021 terminated appointment of the erstwhile promoter.
Further later in the year 2022, the new promoter was appointed as a promoter to
complete the project and therefore, the said project was transferred under section 15
of the RERA from the erstwhile promoter to the new promoter on 13-07-2023. They
further reproduced section 15 of the RERA in support of their claims. Moreover, due
to the negligence of the respondents, they suffered a lot as their finances have been
stuck in the project since 2014 and they have yet to receive the possession of the said
flats. They further stated that the society in whose name all the permissions issued
by the competent authority stands, is also a promoter as defined under section 2(zk)
of the RERA. Hence, the society is liable for the allotment done by the erstwhile
promoter in their favour. Hence, being aggrieved by the conduct of the respondents,
they have filed these complaints. The complainants therefore prayed for interim
injunction against the respondents viz. the new promoter as well as the society from
creating any third party rights in respect of their booked flats.

10. The new promoter has assailed the aforesaid claim of the complainants mainly
contending that neither it nor the society has any privity of contract with these
complainants as they are not the signatory to the said agreements for sale. Therefore,
these complaints are not maintainable under the RERA against it. It has stated that
the members of the society are without shelter and are awaiting redevelopment since
more than 11 years. The fate of it and the society are dependent on the redevelopment
as well as the present proceedings. Also, order against it and the society will have
adverse impact on the redevelopment for no fault on its part. It has also contended
that due to non- compliance of the terms and conditions of the said development
agreement dated 26-09-2012, the said society was constrained to initiate legal
proceedings which also culminated in filing of the Arbitration Petition (L) No. 14933
of 2021 before the Hon’ble High Court of Bombay against the erstwhile promoter for
flouting the terms and conditions of the undertaking. Subsequently, on 04-08-2021
the Hon’ble High Court was pleased to pass an order and it accepted the default on
the part of the erstwhile promoter in completion of the said project. Vide the said


Complaint No. CC006000000500581
and CC006000000500583

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order, the Hon’ble Bombay High Court has also directed the erstwhile promoter to
remove all belongings from project site. The society, in view of the said order,
terminated the said development agreement dated 26-09-2012 and also revoked the
power of attorney and other incidental documents signed with the erstwhile
promoter. Thereafter, the said society had also issued the Public Notices dated 20-
04-2021 and 21-04-2021 in the local newspapers i.e. Times of India & Maharashtra
Times and declared the aforesaid termination of the said development agreement
and power of attorney dated 26-09-2012 signed with the erstwhile promoter. It has
contended that it has been appointed as promoter after the aforesaid order dated 4-
08-2021 passed by the Hon’ble Bombay High Court in Arbitration Petition (L) No.
14933 of 2021. Hence, there is no order passed by the MahaRERA under section 15 of
the RERA. Hence, it is not liable for any liability of the erstwhile promoter. Hence, it
has prayed for dismissal of these complaints. To support its claims, it has relied upon
various orders passed by the Hon’ble Bombay High Court as well as by the Hon’ble
Appellate Tribunal.

11. The MahaRERA has examined the rival submission made by the complainants and
new promoter. As stated hereinabove, the complainants, by filing these two separate
complaints under section 31 of the RERA, have approached the MahaRERA, mainly
seeking reliefs under section 18 of the RERA, towards possession of their flats along
with interest and compensation on account of the delay.

12. The aforesaid claims of the complainants has been resisted by the new promoter
mainly raising an issue of the privity of contract with these complainants. It has also
contended that the said project got transferred to it by the society after termination
of the erstwhile promoter as per the order dated 4-08-2021 passed by the Hon’ble
Bombay High Court in Arbitration Petition (L) No. 14933 of 2021. Hence, it has
claimed that these complaints are not maintainable against it and the said society.

13. Be that as it may, in the present case, during the course of hearings held on 5-08-2024,
the complainants while seeking interim injunction against the new promoter as well


Complaint No. CC006000000500581
and CC006000000500583

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as the said society, have relied upon the interim reliefs granted by the MahaRERA to
the other similarly placed complainant allottee viz. Mr. Deepan Doshi in
complaint
no. CC006000000480104
vide an

INTERIM ORDER

dated 27-05-2024 (passed in the
Roznama) which has been challenged by the new promoter by filing an Appeal
bearing No. (OA) 06 of 2024 before the Hon’ble Appellate Tribunal. The said appeal
is still pending for adjudication before the Hon’ble Appellate Tribunal.

14. In view of the above, the MahaRERA is not inclined to consider the request of the
complainants for grant of similar relief as granted to the said allottee in
complaint
no. CC006000000480104
.

15. In addition to this, the MahaRERA has also noticed that the said society by virtue of
the registered development agreement dated 26-09-2012 had assigned the
development rights with respect to the project land to the erstwhile promoter.
However, on account of the default on the part of the erstwhile promoter in
completion of the said project in a time bound manner, the society as per the order
dated 4-08-2021 passed by the Hon’ble Bombay High Court in the Arbitration
Petition No. (L) No. 14933 of 2021 has terminated the appointment of the erstwhile
promoter as a promoter of the said project. Thereafter, it has appointed a new
promoter to complete the said project. Meaning thereby that the termination of the
erstwhile promoter and the appointment of a new promoter has been done as per the
order of Hon’ble Bombay High Court in the arbitration proceeding. The
complainants herein although have filed their written submissions on record of
MahaRERA (subsequent to the hearing held in these complaints on 5-08-2024), they
have not clarified the issue of the liability of the erstwhile promoter, in the said order
dated 4-08-2021 passed by the Hon’ble Bombay High Court.

16. Hence, without verifying the record including the order dated 4-08-2021 passed by
the Hon’ble High Court and also without granting an opportunity of hearing to the
society as well as the new promoter, the MahaRERA is not inclined to consider the
interim relief for an injunction sought by the complainants at this stage. Needless to


Complaint No. CC006000000500581
and CC006000000500583

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state here that the said substantial issue would be decided once these complaints are
heard and decided on merits.

17. In view of these observations, the interim injunction sought by these complainants
stands rejected. The Registry of this Bench is directed to list these complaints for next
hearing strictly as per seniority.

(Mahesh Pathak)

Member – 1/MahaRERA