Complaint No. CC006000000057433


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BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY, MUMBAI



Complaint No. CC006000000057433

Viloo Keki Italia


... Complainant

Versus

Sahyog Homes Limited


... Respondent


MahaRERA Project Registration No. P51800003040


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

Ld. Adv. Jitendra Ahuja appeared for complainant.
Ld. Adv. Makarand Raut a/w Ld. Adv. Dinesh Kavha appeared for the
respondent.


INTERIM ORDER


(Friday, 17th November 2023)

(Through Video Conferencing)


1. The complainant above named has filed this online complaint before the
MahaRERA on 25-12-2018, mainly seeking directions from the MahaRERA to
the respondent for compensation for delayed possession under provisions as
prescribed under the provisions of section 18 of the Real Estate (Regulation &
Development) Act, 2016 (hereinafter referred to as ‘RERA’) in respect of the
booking of a flat no. 2403 in Building S4 in the respondent’s registered project
known as “Verona” bearing MahaRERA registration no. P51800003040 located
at Oshiwara, Taluka- Andheri, Dist. Mumbai.

2. This complaint was heard by the Ld. Erstwhile Member-1/MahaRERA on
several occasions and finally on 16-09-2019 along with other 18 connected
complaints filed with respect to this project. After hearing the parties concerned
a final common order was passed on 5-12-2019 by the Ld. Erstwhile Member-


Complaint No. CC006000000057433


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1/MahaRERA. The said order reads as under:-

“7. The record also shows that at present the respondent has undertaken the
project in the name of Verona, Oshi and Lamour in which the complainant’s
prima facie do not seems to be the allottees. Although they paid the money for
"BBJ Roma" the same has not been started in the approved layout of SRA. The
complaints filed in the project 'Verona" do not appear to be maintainable, for
want of any cogent documentary proofs such as, boo kings or allotment letters
pertaining to the allotments of flats in the project known as "Verona". ln its
submission before MahaRERA, the respondent also offered to pay the
complainants interest on the money which they have paid along with the
interest as prescribed by RERA.

8. lt was also noticed by the Maha R ERA that a complaint was filed regarding
the issue of non-registration of the project known as "BBJ Roma" in the year
2017 with MahaRERA under "Source information". During scrutiny of the said
matter, the records show that the respondent had submitted that it could not
register the said project “BBJ Roma" because of the large numbers of slum
dwellers occupying the said plot of land. Therefore, it could not get necessary
approvals from the planning authority, i.e. SRA. lt was further submitted that
it was ready and willing to refund the money paid by the allottees with interest.
However, this shows that the respondent recognizes the complainants as
allottees in the project known as "BBJ Roma".

9. ln view of the aforesaid facts, it appears that the complainants are allottees
in the project (BBJ Roma", which has not been registered by the respondent. The
money paid by them has been utilised. Hence, the promoter is directed to treat
the complainants as allottees in the project ("BBJ Roma" or any other name),
which it registers in future as per the sanctioned layout. The complainants are
also entitled, if they so desire, to seek refund of their money along with interest
as offered by the respondent/promoter in its submissions at the rate prescribed
by RER4 i.e- Marginal Cost of Lending Rate (MCLR) of State Bank of India


Complaint No. CC006000000057433


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(5Bl) plus 2Z from the date of their payment of money to the respondent. The
allottees may also approach Slum Rehabilitation Authority (SRA) or its High
Power Committee/Apex Grievance Redressal Committee (ACRC) for the
redressal of their grievances relating to the sanctioned layout and approved
projects therein.

10. with the above observations and directions, all 19 complaints along with
applications filed by the respondent for maintainability of these complainants
stand disposed of.”

3. Being aggrieved by the aforesaid order dated 05-12-2019 passed by the
MahaRERA, the complainant herein had preferred an Appeal No.
AT006000000052194 before the Hon’ble Maharashtra Real Estate Appellate
Tribunal. In the said Appeal , the Hon’ble Appellate Tribunal was pleased to
pass an order on 16-09-2022 and issued following directions:-
“4. Complainant booked flat No.2403 in the building known as BBJ Verona in
September 2014for total consideration of Rs.1,17,60,000/-. Respondent
forwarded draft agreement for sale on 21.10.2014 agreeing to hand over
possession of flat on or before 3lst December 2017 with a grace period of six
months. Thereafter on 12th January 2015, respondent forwarded letter of
allotment to complainant expressing inability to execute agreement for sale
under the pretext that title certificate was not available and agreement for sale
would be executed on availability of title certificate.
On 04.08.2017, project registration was granted by MahaRERA and it was
noticed by complainant that respondent suo motu extended completion date as
31st July 2022 without the consent of complainant. Then on 6th April 2018
respondent called upon to enter into an agreement for sale without
compensating complainant for delay and breach of contractual terms agreed
between the parties.

6. Complainant issued legal notice dated 17.11.2018 demanding compensation for
breach of contract and deficiency in service. She also raised objection to draft


Complaint No. CC006000000057433


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agreement for sale. As respondent did not compensate, complaint came to be
filed before MahaRERA and disposed of as stated hereinabove vide impugned
order dated 5th December 2019.

7. In appeal it is the grievance of complainant that during pendency of
complaint, application raising additional grounds was filed on 3.4.2019. Reply
to that application was filed by respondent and written arguments were
submitted by parties. It is alleged that respondent though collected more than
90% of the consideration, failed to enter into agreement for sale and therefore,
Authority ought to have granted compensation for breach of contract. Another
grievance of appellant is that additional grounds referred in the application
were not at all considered by the Authority and additional reliefs sought came
to be denied without adjudicating the dispute between the parties.

8. During the course of hearing, learned counsel for respondent submitted that
considering the prayer in complaint where solitary relief sought is
compensation to the tune of Rs.89 lakhs and taxation and legal charges,
impugned order needs to be set aside in view of the law laid down by the
Hon'ble Supreme Court in M/s Newtech Promoters and Developers Pvt. Ltd and
State of Uttar Pradesh [2021 SCC online SC 10441, holding that Adjudicating
Officer exclusively has power to determine compensation and interest thereon
under Sections t2, t4, 18 and 19 of The Real Estate (Regulation and
Development) Act, 2016 (for short "the Act").

9. In response to the submission made by learned counsel for respondent,
learned counsel for appellant contended that impugned order has been passed
in 19 complaints including complaint of appellant, though facts pleaded and
grievances made by complainant are entirely different, than 18 other
complaints. Learned counsel submits that on the wrong premise common order
came to be passed holding complainant as an allottee of the project BBJ Roma
whereas appellant is an allottee in project S-4 BBJ Verona. Learned counsel
submitted that impugned order clearly depicts total non-application of mind
to the facts and circumstances of the case and order being un-sustainable needs


Complaint No. CC006000000057433


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to be set aside in entirety.

10. Another grievance put forth by appellant is that application raising
additional grounds was filed before Authority during pendency of complaint
and though respondent filed reply to the said application, impugned order came
to be passed in total ignorance of application raising additional grounds in
complaint. Learned counsel urged to set aside the impugned order in such a
situation.

11. On careful perusal of pleadings raised in complaint and application for
additional grounds filed by complainant it is apparent that impugned order
per se depicts non application of mind and so it is necessary to relegate the
parties to Authority for fresh decision regarding the reliefs other than
compensation on merits keeping all rights and contentions of the parties open.

12. In the above background and in view of the law laid down by the Hon'ble
Supreme Court in Newtech Promoters and Developers Pvt. Ltd (supra) we find
that following order would subserve the ends of justice.
ORDER
i)
Appeal is allowed.
ii)Impugned
order
dated
5th
December
2019
in

complaint
No.CC006000000057433
is set aside.
iii) Authority to hear and decide the application raising additional grounds
filed by complainant and depending upon it's fate, complaint for the reliefs
other than compensation afresh in accordance with the law as expeditiously as
possible.
iv) Liberty to appellant to take appropriate recourse as per law to get her
grievances regarding compensation redressed.
v) All rights and contentions of the parties are kept open. Etc”

4. Pursuant to the aforesaid directions issued by the MahaRERA, this complaint
was again scheduled for hearing before the MahaRERA on 8-12-2022, 02-02-
2023, 20-04-2023 and finally on 22-06-2023 as per the Standard Operating


Complaint No. CC006000000057433


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Procedure dated 12-06-2020 issued by MahaRERA for hearing of complaints
through Video Conferencing. Both the parties have been issued prior intimation
of this hearing and they were also informed to file their written submissions if
any. Accordingly, both the parties appeared for the hearings and made their
respective submissions. MahaRERA heard the submissions of the parties and
also perused the available record.

5. After hearing the arguments of both the parties, the following Roznama’s were
recorded in this complaint–
On 08-12-2022:- “Both the parties are present. This is the first hearing after the
matter has been remanded back from the Hon’ble MahaRERA Appellate
Tribunal vide order dated 16-09-2022. Subsequent to that, the complainant has
uploaded an application dated 03-12-2022. The respondent requests for time to
answer/reply to the complaint as well as additional application uploaded by
the complainant to which the complainant agrees. Four weeks’ time i.e. till 04-
01-2023 is granted to the respondent for the same. The complainant may file a
rejoinder to the reply by subsequent 1 week i.e. by 11-01-2023. The matter is
adjourned to a suitable date after 11-01-2023 for further hearing. List the matter
for next hearing on 02-02-2023.”
On 02-02-2023:-“ Both the parties are present. The complainant requested time
to file his rejoinder to the reply to the respondent, as the reply to the amendment
application of the complainant was filed by the respondent on 31-01-2023.
Therefore, two weeks’ time i.e. till 16-02-2023 is granted to the complainant to
file a rejoinder to the reply of the respondent as well as his written arguments.
The respondent may file sur-rejoinder (if any) and its written arguments within
further two weeks i.e. by 02-03-2023. The matter is adjourned to a suitable date
after 02-03-2023 for final arguments by both sides. List the matter for next
hearing on 20-04-2023”.
On 20-04-2023:- “Both the parties are present. The respondent has filed a reply
to the additional grounds raised by the complainant and the complainant has


Complaint No. CC006000000057433


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also filed rejoinder to the same. Therefore, two weeks’ time i.e. till 04-05-2023
is granted to the respondent to file a sur-rejoinder (if any) along with its written
arguments. Further two weeks’ time i.e. till 18-05-2023 is granted to the
complainant to file his written arguments. The matter is adjourned to a suitable
date after 18-05-2023 for final arguments by both sides. List the matter for next
hearing on 22-06-2023.”
On 22-06-2023:- “Both the parties are present. The matter was kept today for
final arguments of both the sides on the issue of additional grounds to be raised
by the complainant as per the liberty granted by the Hon’ble Appellate
Tribunal. Accordingly, the complainant has argued that the respondent has
violated the provision of section 12 of the RERA as well as section 4 of the
MOFA and has further caused delay in the project, as the project was to be
completed in December 2017, however, it is still incomplete. Therefore, by
raising these additional grounds the complainant prays for interest and
compensation for the delay. The respondent has refuted these contentions of the
complainant on the additional grounds raised in the application filed on 03-12-
2022 by the complainant. The respondent has pointed out that the allotment
letter was very clear that on receipts of commencement certificate and only
after tentative plans are amended and finalized, the agreement for sale would
be signed. Therefore, there is no breach of any promise as alleged by the
complainant and the respondent has repeatedly communicated with the
complainant to sign the agreement for sale and it has never charged more money
than allowed/permissible under MOFA (i.e, 20% of the total consideration)
before signing of the agreement for sale. Therefore, the respondent contends that
the additional grounds raised by the complainant should be disallowed by
MahaRERA and in any case, there is an issue of maintainability of this
complaint as the additional grounds are being raised without amending the
complaint. Therefore, this complaint should be restricted to the issue of
compensation which should be rightly adjudicated by the Ld. Adjudicating
Officer. In view of the above, as all the pleadings regarding the additional


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grounds raised by the complainant are over, this matter is reserved for interim
order on the issue based on the reply, rejoinder, sur -rejoinder and written
arguments filed by both the sides in the complaint. Further course of action in
this complaint would be decided once such an order is issued.”

6. In the present case, pursuant to the directions issued by the Hon’ble Appellate
Tribunal, the complainant has uploaded her application for raising additional
grounds in the complaint under section 12,13 and 18 of the RERA on record of
MahaRERA on 3-12-2022. The respondent has uploaded its reply to the said
application on 31-01-2023. The complainant has also uploaded her rejoinder and
final written arguments on record of MahaRERA on 6-03-2023 and 05-06-2023.
The MahaRERA has perused the available record.

7. The complainant in the said application has mainly contended that she is the
allottee in respect of the said flat no. 2403 booked in the respondent’s present
project for the consideration amount of Rs. 1,17,60,000/- . Further she has filed
this complaint against the respondent for raising additional grounds of
complaint under sections 12, 13, 14 & 19 of the RERA , in continuation of the
first application. Further, the MahaRERA vide its order dated 5-12-2019 had
disposed of this complaint which was challenged by her before the Hon’ble
Appellate Tribunal vide Appeal no. AT006000000052194. The Hon’ble
Appellate Tribunal was pleased to set aside the order dated 5-12-2019 by its
order dated 16-9-2022 and has been pleased to remand the complaint back to
MahaRERA for adjudication as follows : “… ii) Impugned order dated 5th
December 2019 in
complaint no. CC006000000057433
is set aside; iii) Authority
to hear and decide the application raising additional grounds filed by
complaint and depending upon it’s fate, complaint for the reliefs other than
compensation afresh in accordance with the law as expeditiously as possible.


Complaint No. CC006000000057433


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8. The complainant has further stated that she paid to respondent an amount of
Rs. 1,00,49,509/- in total towards consideration of the said flat and Rs.6,04,810/-
towards the total statutory taxes. However, the respondent has avoided to enter
into an agreement for sale by citing false reasons as mentioned in the said
allotment letter dated 12-1-2015. The complainant further stated that she is
ready and willing to enter into and execute the agreement for sale but however,
the respondent after obtaining from her a substantial consideration amount
issued and sent her the allotment letter dated 12-1-2015 and the respondent had
to handover the possession of the subject flat to her on or before 31-12-2017. The
complainant has relied upon the case of Newtech Promoters and Developers
Pvt. Ltd. in support of her claim for interest. Hence the complainant prays for
directing the respondent to execute the agreement for sale under section 13 of
the RERA and that the respondent be directed to pay penalty in such breach of
section 13 of the RERA and for cost.

9. The respondent has refuted the claim of the complainant by filing its reply to
the application of complainant for raising additional grounds of complaint
under sections 12, 13 & 18 of the RERA stating that the complainant has
suppressed the material facts from the MahaRERA. Further, vide letter/email
dated 21-10-2014 the complainant was called upon to execute and register the
agreement for sale containing the draft agreement for sale, but she has not
replied to the said email which is admitted by her in her additional application
for raising additional grounds. Hence it is evident that she has chosen to
continue and take possession as per the revised possession date communicated
to her and now she cannot seek to enforce the date of possession as 31-12- 2017
with extension of 6 months which the complainant has long abandoned by her
own conduct and election. Further, the complainant has received the draft
agreement for sale under MOFA on 2-10-2014 and she has raised her first letter
for claiming compensation on 14-09-2017 but the complainant has chosen to


Complaint No. CC006000000057433


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remain silent as to why she has not arranged to register the draft agreement for
sale shared with her. Therefore, the respondent should not be penalized for the
fault of the complainant to execute and register the agreement for sale. The
respondent further stated that it is ready and willing to execute the agreement
for sale however, the complainant has failed to provide signed copy of the
allotment letter and never averred in her entire complaint as to why she has not
forwarded the signed copy to the respondent and completed the formalities.
The respondent has given reasons for the delay on its part in completion of the
project i.e. stoppage of work owing to Covid-19 related lockdown and the
liquidity crunch due to the same, delay in getting timely approvals from the
concerned authorities, DCPR 2034 coming into effect after the previous DP
lapsed. In the light of the above, the possession date stated in the said agreement
stood reasonably extended by a period of 48 months taking into account the
mitigating circumstances. In fact, the complainant has failed to show how there
has been a delay in handing over possession of the said flat. In the
circumstances, section 18 of the RERA would only be violated when the
possession is not handed over to her by July, 2023. Further, section 18 of the
RERA applies only when the developer fails to give possession in terms of the
agreement for sale which in this case has not passed at all. Hence the complaint
is not maintainable as it does not show how the provisions of RERA have been
violated which is a mandatory requirement for filing any complaint under
section 31 of the RERA. Further, MahaRERA is not just an adjudicator of dispute
between the parties but also that of a regulator tasked with the job of ensuring
that project that have overrun their scheduled timeline are completed. Further,
the complainant had booked the said flat by making initial payment Rs.
9,64,246/- only followed by other payments in stages but has chosen to continue
and take possession as per the revied possession date communicated to her and
cannot now seek to enforce the date of possession as 31-12-2017 which she has
long abandoned by her own conduct and election. Further, the complainant is


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aware since beginning that the respondent was proposed to construct minimum
39 floors building. In the year 2015 i.e. at the reservation of a flat, the
construction of the building beyond 18th slab was not started as the
commencement certificate was not issued at that time. Therefore, it is impossible
to believe that respondent would have promised to construct the buildings of
29 floors within two years and handover possession by 31-12- 2017 as alleged
by the complainant. The respondent has dealt with the complainant’s
application para-wise denied the contentions in toto and prayed that the
application as well as the complaint deserves to be dismissed with costs.

10. The complainant has also filed her rejoinder to the said reply of the respondent
on 6-3-2023, wherein she reiterates and confirms whatever has been stated by
her in the original complaint, the first application and the present application
for raising additional grounds in the original complaint. The complainant has
referred to the reply and denied the contents thereof. The complainant has
further stated that the respondent has admitted the issue of allotment letter itself
and the contents stated thereto. She has stated that on the one hand the
respondent heavily relies upon the said letter and on the other hand says it is
unsigned and cannot be relied upon. It is the duty of the respondent to arrange
and prepare agreement for registration and then collect consideration as per
law. However, the respondent had never demanded nor given any details for
payment of stamp duty and registration charges until she demanded
compensation for breaching the terms of the agreement for sale. Further, it was
represented that the building which would be constructed would be 35 floors
which would be stilt + 4 podium floors and now the respondent has unilaterally
decided to construct additional floors of the building (39 floors now proposed)
in which the flat is situated. The respondent has fraudulently represented that
the possession of the flat would be handed over to her on 31-12-2017 and
therefore she prays that her complaint be allowed and interest be granted from


Complaint No. CC006000000057433


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the said date as mentioned in the agreement for sale being 31-12-2017.

11. The complainant has filed her written arguments on 05-06-2023 giving details
of her previous submissions. She has filed uploaded documents on record such
as copy of brochure, draft agreement, unsigned letter, copy of demand notices,
covering letters sent to respondent, copy of legal notice dated 17-11-2018 etc.

12. The MahaRERA has examined the rival submissions made by both the parties
and also perused the available record. In the present case on bare perusal of
this online complaint filed by the complainant, it appears that the complainant
is mainly seeking following reliefs:-
“In view of above circumstances, the developer shall compensate the loss
suffered by us due to delay in period of handing over possession of the
residential premises/flat to the tune of Rs. 89 Lakh plus other taxation and legal
proceeding charges”.

13. However, in this case, the MahaRERA has to decide this application filed by the
complainant for raising additional grounds in the original complaint on merits
depending upon it's fate and that too, in this complaint for the reliefs other than
compensation afresh in accordance with the law as directed by the Hon’ble
Appellate Tribunal. Needless to state here that all the issues are kept opened by
the Hon’ble Appellate Tribunal.

14. The complainant has mainly contended that the respondent has violated the
provision of section 12 of the RERA as well as section 4 of the MOFA and has
further caused delay in the project, as the project was to be completed on 31-12-
2017, however, it is still incomplete and the OC for the project was not obtained
by the respondent. Hence, by raising these additional grounds the complainant
prays for interest and compensation for the delay.


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15. The respondent has assailed these contentions of the complainant and stated
that the allotment letter dated 12-01-2015 provides that on receipt of
commencement certificate and only after tentative plans are amended and
finalized, the agreement for sale would be signed. Hence, the respondent has
contended that there is no breach of any promise as alleged by the complainant
and also it has repeatedly communicated to the complainant to sign the
agreement for sale, however, the complainant has failed to come forward and
execute the agreement. Even, it has contended that it has never charged more
money than permissible under MOFA (i.e. 20% of the total consideration)
before signing of the agreement for sale. Therefore, the respondent contended
that the additional grounds raised by the complainant should be rejected.
Hence, this complaint should be restricted to the issue of compensation which
should be rightly adjudicated by the Ld. Adjudicating Officer/MahaRERA.

16. From the submissions made by both the parties, the MahaRERA prima facie
noticed that the complainant by filing this application has raised additional
grounds in complaint and is ultimately seeking “amendment” in her original
complaint filed on 25-12-2018 by adding additional violations of the provision
of the RERA viz. sections 12, 13 and 18 of the RERA. Admittedly, the
complainant in her original prayer has mainly sought compensation for loss on
account of delay on the part of the respondent in handing over possession of the
said flat to her on the agreed date of possession i.e. on 31-12-2017 (as per the
complainant). However, as pointed out by the respondent, no application
seeking amendment in this complaint has been filed by the complainant on
record of MahaRERA.

17. In this regard, the MahaRERA feels it necessary to peruse the relevant
provisions of Regulation 42 of the Maharashtra Real Estate (General)
Regulation, 2017. The same reads as under:- “42. The Authority may, at any
time and on such terms as to costs or otherwise, as it may think fit, amend any


Complaint No. CC006000000057433


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defect or error in any proceedings before it (including any clerical or
arithmetical error in any order passed by the Authority), and all necessary
amendments, rectifications shall be made for the purpose of determining the
real question or issue arising in the proceedings.

Provided that if the Authority desires to make amendments or rectifications in
order to determine the real question or issue arising the Authority shall provide
an opportunity to the parties affected by such amendment or rectification
touching the real question or issue to make representations and submissions
with respect to the proposed amendment or rectification.”

18. The aforesaid provision of Regulation 42 of the MahaRERA (General
Regulation, clearly provides that the MahaRERA can allow to amend any defect
or error in any proceedings filed before it including any typographical or
arithmetical error in any order passed by the MahaRERA for the purpose of
determining the real question or issue arising in the proceedings. However, in
the instant case, admittedly there is no error or defect either typographical/
arithmetic as sought by the complainant.

19. Furthermore, on bare perusal of the online complaint filed by the complainant,
it appears that there is no complaint filed by the complainant by citing proper
pleadings in proper format (Form A and B) as prescribed under Rule 6 and 7 of
the Maharashtra Real Estate (Regulation and Development) (Recovery of
Interest, Penalty, Compensation, Fine payable, Forms of Complaints and
Appeal, etc.) Rules, 2017. However, she has just uploaded the supportive
documents to establish her claim sought towards compensation.

20. It shows that there is no defect or error in the complaint which the complainant
wants to rectify by filing this application raising additional grounds in the
complaint. However, the complainant is mainly seeking modifications/


Complaint No. CC006000000057433


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alterations in her original complaint. The same is not a ground provided in the
aforesaid Regulation 42 of the Maharashtra Real Estate (General) Regulation,

2017. 21. In this regard, it is pertinent to peruse the order dated 05-05-2022 passed by the
Hon’ble Appellate Tribunal in Appeal No. AT005000000053031 and Anr,
wherein the following observations have been made by the Hon’ble Appellate
Tribunal:-
“13. In the light of the above moot question that arises here is whether
amendment to complaint in view of subsequent development can be allowed
? It is true that ordinarily rights of the parties as they stand at the date of
institution of proceedings are required to be considered for grant or refusal
of reliefs sought. But where it is shown that original relief claimed has by
reason of the subsequent change of circumstances becomes inappropriate or
that it is necessary to have a decision of the Competent forum on the altered
circumstances in order to shorten the litigation or to do complete justice to
parties it is incumbent upon the decision making Authority to take note of
altered circumstances which happened subsequent to the filing of litigation
and mould its order according to the circumstances at the time of passing
order.

14. It is also a trite law that amendment on subsequent cause of action can be
allowed provided - (1) No inordinate delay,
(2) no fresh inquiry on facts necessary
(3) Opposite party was not deprived of any defence which would be open to it
if a fresh complaint on the new cause of action was to be brought.

15. It is an admitted fact that possession was offered by promoter during the
pendency of complaint and then accepted by allottee. As can be seen from
email communication in reply dated 16th October 2020 complainant had
reserved his rights for taking possession without prejudice to his rights and
contentions.


Complaint No. CC006000000057433


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16. It can be revealed from the record that on 24th October 2020 complainant
filed an additional affidavit before the Authority mentioning events which
transpired leading to possession. On 5th November 2020 he moved an
application for amendment. It is surprising to note that in the entire order
there is no whisper regarding additional affidavit filed by complainant or
email communication in reply dated 16th October 2020 informing the
promoter that complainant is ready to accept possession without prejudice
to his rights and contentions. Authority completely ignored the very edifice
of amendment application while rejecting the same.

17. Section 38 of the Act of 2016 empowers MahaRERA to regulate its own
procedure and proviso to Regulation 42 further empowers the Authority to
make amendments or rectification in order to determine the real question or
issue arising between the parties. A bare perusal of proviso to Regulation
42 makes it clear that Authority has very wide powers to grant amendment
and powers are not restricted to only technical or typographical error as
mentioned in the impugned order.

22. In the aforesaid order dated 5-05-2022, the Hon’ble Appellate Tribunal has
held that the amendment should not be restricted to only technical or
typographical error. However, the provisions of section 38 of the RERA
empowers MahaRERA to regulate its own procedure and proviso to
Regulation 42 which further empowers the MahaRERA to make amendments
or rectification in order to determine the real question or issue arising between
the parties. In this case, the main issue raised by the complainant is about the
delay in handing over possession of the said flat to her on the agreed date of
possession. Hence, merely due to the technicalities that the complainant has
not prayed for any delayed interest, the complaint cannot be thrown out. This
is not the aim and intention of the RERA.

23. In view of these facts and by invoking the provisions of section 38 (2) of the


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RERA, the following order is passed:-
a. The application filed by the complainant raising the additional
grounds under sections 12, 13 and 18 of the RERA is allowed.
b. The complainant is directed to amend this complaint adding the said
grounds (as mentioned in the application uploaded on record of
MahaRERA of 3-12-2022) and upload the same on MahaRERA
website within a period of two weeks from the date of this order.
Within the same time, the complainant may serve a copy thereof to
the respondent.
c. On receipt thereof, the respondent is directed to file its reply on the
substantive issues raised in the said amended complaint within a
further period of two weeks.

24. With these directions, the application filed by the complainant dated 03-04-
2019 stands disposed of.


(Mahesh Pathak)
Member – 1/MahaRERA