Complaint No. CC006000000079000


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BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY
MUMBAI

Complaint No. CC006000000079000

Madhu Alvani & Bina Kamal Khiani


... Complainants

Versus

Sai Enterprises


Super Construction


... Respondent

MahaRERA Project Registration No. P51800015798


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

Ld. Adv. Nilesh Gala appeared for the complainants.
Ld. Adv. Abir Patel appeared for the respondent No. 1.


INTERIM ORDER


(Friday, 18th October 2024)

(Through Video Conferencing)


1. The complainants above named have filed this online complaint before the
MahaRERA on 29-04-2019 seeking directions from MahaRERA to the
respondent – promoter to handover the possession and to pay interest and
compensation for delayed possession as prescribed under the provisions of the
Real Estate (Regulation & Development) Act, 2016 (hereinafter referred to as
‘RERA’) in respect of the booking of a flat bearing No. 807 in the respondent’s
registered project known as “Sethia Imperial Avenue” bearing
MahaRERA
project registration No. P51800015798
located at Borivali, Mumbai.

2. This complaint was earlier heard by the Ld. Erstwhile Member-1/MahaRERA
on 5-11-2019. During the course of the said hearing , the complainants have
contended that they have addressed this complaint to the Ld. Adjudicating
Officer/MahaRERA and hence, they requested to transfer this complaint to
Ld. Adjudicating Officer. However, in this complaint the complainants have


Complaint No. CC006000000079000


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alleged violation of sections 12 and 14 of the RERA and thereby seeking
compensation under the provisions of the RERA. Hence, vide an

INTERIM ORDER


dated 20-11-2019, this complaint was transferred to the Ld. Adjudicating
Officer/MahaRERA for taking further appropriate decision in this complaint.

3. Accordingly, the Ld. Adjudicating Officer/MahaRERA heard the parties and
passed an order on 2-11-2020 and issued following directions:-
“1)Respondents no.1 and 2 jointly and severally to pay interest at the rate of 10.40
% p.a. on Rs.17.49 lakhs to the complainants from 24.06.2012 till the respondents
deliver possession of the flat to the complainants or inform about obtaining OC.
2) Respondents 1 and 2 to pay Rs.50,000/- to the complainants towards mental agony
suffered. 3) Respondents to pay Rs.20,000/- to the complainants as costs of this
complaint.
4) Charge of above amount is kept on the flat booked by complainants.
5) Respondents to pay above amounts within 30 days from the date of this Order.

4. However, being aggrieved by the aforesaid order dated 2-11-2020 passed by
the Ld. Adjudicating Officer/MahaRERA, the respondent no. 1 viz M/s. Sai
Enterprises had preferred an appeal bearing no. AT006000000052870 before
the Hon’ble Appellate Tribunal. In the said appeal , the Hon’ble Appellate
Tribunal pleased to pass an order on 17-07-2023 and set aside the aforesaid
order passed by the Ld. Adjudicating Officer/MahaRERA on the ground of
jurisdiction in view of the

JUDGEMENT

passed by the Hon’ble Supreme Court of
India in the matter of Newtech Promoters and Developers Pvt Ltd and in
respect of reliefs other than compensation is restored to the file before the
MahaRERA to decide afresh as expeditiously as possible in accordance with
the law.

5. Accordingly, this complaint was transferred to this Bench by the Ld.
Adjudicating Officer/MahaRERA on 06-03-2024. Accordingly, this complaint


Complaint No. CC006000000079000


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was heard by the MahaRERA on 20-03-2024 and the same was heard finally on
12-06-2024 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, the parties
appeared for the said hearings as per their appearances recorded in the
Roznama and made their respective submissions. The MahaRERA heard the
arguments of both the parties as per their appearances and also perused the
available records.

6. After hearing the arguments of both parties, the following Roznamas were
recorded in this complaint :-
On 20-03-2024-
“Both the parties are present. The respondent is directed to file its reply to
the complaint within a period of 2 weeks i.e. by 03-04-2024. Further 2 weeks’
time i.e. till 17-04-2024 is granted to the complainant to file a rejoinder to
the said reply of the respondent. The main issue in the complaint is about
privity as according to the complainant, the respondent no. 1 has taken over
all the responsibility from the respondent no. 2 as per development
agreement of 2017, however, the respondent refutes this contention and
contends that it is only with regard to the financial returns that this
development agreement is relevant. The allotment letter is of May 2010 and
the date of possession was June 2012. However, the complainant mentions
that the respondent no. 1 has terminated his allotment in January 2019 as no
further amounts were paid by the complainant on the ground that the
respondent no. 1 was not honouring the allotment letters and had demanded
monies beyond the allotment letter and also not considering the interest for
delay. Therefore, the respondent no. 1 has recognized the complainant as an
allottee. However, the respondent no.1 has refuted this contention of the


Complaint No. CC006000000079000


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complainant. In view of the above, this matter is adjourned to a suitable
date after 17-04-2024 for final arguments by both the parties. List the matter
for next hearing on 12-06-2024.”

On 12-06-2024 –
“Both the parties are present. The respondent no. 1 has filed its reply to the
complaint and the complainants are relying on the written submissions,
documents uploaded earlier ( in the proceeding before the Ld. Adjudicating
Officer) as well as the case laws. The complainants have pointed out that
the respondent no. 1 itself (Sai Enterprises) has terminated the allotment in
2019 and the flat no. at that time was 807 admeasuring 795 sq. ft. and there
were no building numbers at the time of the said allotment in May 2010,
although the CTS numbers are the same. Further the complainants have
pointed out that a reasonable period of 3 years may be taken for completion
of the project from 2010 as admittedly there is no date of possession
mentioned in the said allotment letter. On the issue of limitation, the
complainants have pointed out that as the allotment was terminated by the
respondent no. 1 in 2019, therefore, there is no question of limitation, as the
complaint was filed immediately after that. The complainants have also
prayed for formation of society in the project as well as to add the Super
Construction and land owners as ‘promoters’ in the project registration, and
levy penalty for not doing so at the time of registration of the said project.
The complainants have pointed out to the orders issued in matters of
similarly placed complainants dated 03-08-2021 passed in complaints
bearing nos. CC006000000078286 and CC006000000078287 etc., in the same
project. Although the said orders are subject to appeal, the respondent no. 1
is relying on the appeals pending against the said order (dated 03-08-2021)
as well as the order of Sangita Punjabi, which is also under appeal. However,
the complainants have pointed out that the review applications filed by the


Complaint No. CC006000000079000


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respondent no. 1 herein to review the said order of 03-08-2021 by the
MahaRERA has been rejected. Therefore, the complainants have prayed for
execution of the agreement for sale and interest for delayed possession as
well as formation of society and adding of landowners and Super
Construction as promoters. The respondent no. 1 has refuted these
contentions of the complainants and has pointed out that it is Super
Constructions, the respondent no. 2 herein, which terminated the allotment
of the complainants in March 2018. The letter issued by the respondent no. 1
in 2019 on which the complainants are relying is actually an offer for
continuation in the project on new terms and therefore, it cannot be said that
the complainants have privity with the respondent no. 1. In fact the
complainants have pointed out that the case law and earlier orders of the
MahaRERA which the complainants are relying upon, are subject to appeal
before the Hon’ble Appellate Tribunal. Moreover, the respondent no. 1 has
also pointed out that in another matter of an allottee by the name - Maniben
as the flat was not shown in the sanctioned plan and it was not available,
the MahaRERA has contended that an order for execution of the agreement
for sale is not tenable. Therefore, the respondent no. 1 relies on section 56 of
the Contract Act and pleads that the contract if at all with the complainants
is frustrated as there is no flat no. 807 in the buildings constructed in the
project and neither the flat admeasuring 795 sq. ft. is available. The
respondent no. 1 has also contended that in any case, the respondent no. 1
purchased the FSI from the respondent no. 2 in the said plot which is of large
area and constructed the project therein after settling the respondent no. 2
vide a development agreement. The complainants are also relying on the said
development agreement to contend that all the responsibility of the
respondent no. 2 have been taken over by the respondent no. 1 including the
allotment issued in favour of the allottees and slum dwellers. Moreover, the
complainants have also pointed out that even though there is no


Complaint No. CC006000000079000


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commencement certificate issued in favour of the respondent no. 2, as the
said allotment was done in the MOFA regime, there was an LOI issued in
favour of the respondent no. 2 which was as per the law. Moreover, the
landowners continue to be mentioned as promoters in the commencement
certificate issued by the competent authority in the project. On the issue of
formation of society, the respondent no. 1 has contended that the society
formation of the allottees of the respondent no. 1 is in the process.
Accordingly, this matter is reserved for orders based on the arguments of
both the sides in the hearing today as well as reply and additional reply of
the respondent no. 1 and the rejoinder and written submissions filed by the
complainants.”

7. It is the case of the complainants that the respondent no.2 are owners cum
developers of land being developed under Slum Rehabilitation Scheme,
wherein the respondent no.1 has acquired development rights for valuable
consideration. The complainants purchased flat no. 807 adm. 795 sq.ft in wing
B of the project then known as ‘Sun Gates’ from respondent no.2 (now
renamed as ‘Sethia Imperial’ by respondent no.1) for the consideration of Rs.
43,72,500/- under construction linked payment scheme on ownership basis
and have paid 40% of the price. The respondent no.2 promised to complete the
project within 18 months plus grace period i.e. maximum within 25 months
and handover possession latest by 23-6-2012. Despite much follow up,
respondent no.2 avoided executing the agreement for sale in favour of the
complainants. Moreover, to their shock and surprise the respondent no.2 vide
its letter dated 23-3-2018 expressed its inability in carrying out the construction
and asked to contact respondent no.2 for refund, to whom it had handed over
the project. The complainant refused to accept the refund and informed their
desire to continue with the project. However, the respondent no.2 kept on
giving false promises but did not execute the agreement for sale in their favour


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but by letter dated 30-1-2019 threatened to terminate the said allotment letter
for no fault on their part. Further, the respondents anticipated increase in FSI
of project from 2.50 to 3.00 which could be availed only by delaying
construction. In the circumstances, the complainants have prayed to direct the
respondents to pay compensation till actual completion of the project and for
issuance of full OC and BCC alongwith all amenities failing which to pay
interest; to pay the amount equivalent to price for differential carpet area plus
differential stamp duty and GST; execute agreement for sale; to form society
and execute necessary conveyance; take cognizance of the unfair trade
practices or fraudulent acts of the respondent and for legal costs. The
complainants have further prayed for

INTERIM ORDER

to furnish readable copies
of all approvals, deposit such amounts to secure payment of compensations
payable to the complainants and furnish a copy of draft agreement for sale.

8. The respondent no. 1 on the other hand refuted the contentions of the
complainants by filing its reply on 18-10-2020 as well as 20-10-2020 on the
record of MahaRERA. The respondent no. 1 vide its letter dated 30.1.2019 has
offered to refund a sum of Rs.17,49,000/- paid by them to the respondent no.
2 along with interest @ 10.55% per annum with a view to bring closure to the
entire issue. Further, they did not disclose any violation of provisions of RERA
by respondent no.1 in the said project. However, they have not booked or
made any payment for allotment of any flat in the said project. Admittedly,
their booking and allotment letter pertains to the project “Sun Gates” to be
constructed in Building no.8 of the layout by the respondent no. 2 which is not
registered with the RERA. As the said project is a development under
Regulation 33 (1) of DCR where priority is given to the slum rehab and
development, there is delay in relocating and rehabilitating the slum dwellers.
Therefore, the respondent no.1 has vide letter dated 30.1.2019 intimated them


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and has also requested them to collect refund of payments with interest @

10. 55% p.a. Moreover, they themselves relied upon the letter dated 23.3.2018
addressed by the respondent no.2 to the complainants informing them about
the inability of respondent no.2 to carry out construction activity in the project
“Sun Gates” due to delay in getting permission and paucity of funds.
However, they have not challenged the said letter. The termination letter dated
30-01-2019 is legal, bonafide and valid and is not liable to be interfered with.
Further, the Development Agreement dated 17.10.2017 clearly provides the
status of the complainants as “investors” which they have disclosed in their
complaint. They were aware of the Development Agreement prior to the filing
of the present complaint. Furthermore, the construction on the project is as per
the layout. The IOD is dated 7.2.2005 and the CC is dated 9.8.2012. The layout
plan reflects Building No.8 where the proposed construction of the building
“Sun Gates” was to be carried out. Therefore, there is no misrepresentation in
the RERA plans, on the website of RERA. The stand of the respondent no.1
has all along been to refund payment to the complainants as an investor in the
project “Sun Gates” which was supported by the clauses of the Development
Agreement dated 17.10.2017 and the termination letter dated 30.1.2019. The
project “Sun Gates” is different from the said project “Sethia Imperial Avenue”
and there is no basis to connect both the projects. Thus, there is no privity of
contract between the complainants and respondent no.1. They were aware that
they have not made any payment to it and the respondent no.1 has not
received any payment from the complainants towards the consideration of the
said flat. Further, the termination letter dated 30.1.2019 is valid and subsisting
and has not been challenged by them. There is no correspondence or material
on record to show any connect of the complainants with the said project. They
have also not produced any documents supporting such allotment to them in
the said project. The complainants attempted to link the said project “Sethia


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Imperial Avenue” with the project “Sun Gates” without any basis, material,
document or records and purely as speculation and conjuncture. Further, they
have stated about difficulties faced regarding rehabilitation of slum dwellers.
Therefore, the construction work has not started. Therefore, termination letter
was issued to them with a request to take refund of payment with interest
@10.55% per annum. Hence it has prayed for dismissal of the present
complaint.

9. The respondent no. 1 further uploaded additional affidavit of reply on 18-10-
2020 on the record of MahaRERA reiterating what has been mentioned in its
reply hereinabove.

10. The complainants have filed their rejoinder on 18-10-2020 to the reply of
respondent no.1 denying the averments thereof and stating that the allotment
letter itself is a concluded contract and execution of agreement was treated as
a formality. Hence, the allotment letter is valid, subsisting and capable of
specific performance The complainants have denied that the respondent no.1
can terminate the allotment letter on any ground. Further effect of section 15
of the RERA is that the transfer under the said development agreements dated
20-4-2013 and 17-10-2017 without prior consent of the complaints does not
affect the allotment/sale of the said flat to the complainants made by
respondent no.2. The complainants further deny that they have purchased the
flat in Building no.8 as falsely alleged and there are sufficient documents
confirming that the building in which the flat is sold to the complainants is
Building no.9 and further deny that the project ‘Sun Gates’ is different than
‘Sethia Imperial Avenue’. The complainants have hence prayed that the
complaint be allowed in the interest of justice and to protect them.


Complaint No. CC006000000079000


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11. The complainants have filed their written arguments on 18-10-2020 stating that
the respondent no.1 has entered into the shoes of respondent no.2 by taking
over the project and has specifically undertaken to discharge liabilities of
respondent no.2. Moreover, the complainants’ claims are not disputed by the
respondent no.2 and in fact under the development agreement and by letter
dated 30-01-2019 the respondent no.1 has admitted claim of the complainants
and also expressed readiness to allot flat and adjust the amounts already paid
by the complainant to respondent no.1. In this regard, the complainants have
relied upon several judgements including that of the High Court in case of
Nathani Supariwala and

JUDGEMENT

of the Supreme Court in the matter of
Kollipara Sriramulu vs T. Aswatha Narayana. Further, the complainants have
stated that as per Doctrine of Priority, the right of first in time prevails over the
others and therefore after selling the flat to the complainants, respondent no.2
and now respondent no.1 did not have right to sell the flat to any third party.
Since the said development agreement is entered into on 17-10-2017 i.e. after
implementation of RERA and therefore the same is governed by the provisions
of RERA. The respondents have given two options viz. to accept refund under
clause 10 and to continue with the project under clause 11 which provisions
are contrary to MOFA and RERA. The respondent no.2 attempted to
pressurise the complainants by letter dated 23-3-2018 to accept the refund
from it which was refused by the complainants.

12. The respondent no. 1 has also uploaded its written submission on 20-10-2020
on the record of MahaRERA. It has stated that, vide prayer clause (d) of the
present complaint in which they sought relief from the Adjudicating Officer to
direct the respondent no. 1 to execute necessary agreement for sale in their
favour. Moreover, this authority has no jurisdiction to decide the quantum of
compensation as per sections 12,14,18 and 19 of the RERA. Further, to claim


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relief under section 18 of the RERA on the basis of allotment letter, the
respondent no.1 stated that the said allotment letter should have all the trails
of a valid agreement for sale including the date of possession provided in the
allotment letter dated 29-05-2010. It is settled position in law that in the absence
of the date of possession, the letter of allotment cannot be considered to be
concluded agreement for sale and accordingly, no reliefs under section 18 of
the RERA can be granted in such cases. They have failed to demonstrate the
failure of the said respondent to comply with any provision under the said Act.
The respondent no. 1 further relied on the order passed by the Hon’ble
Appellate Tribunal in the matter of Pankaj Kishore Agarwal & Anr. Vs Real
Gem Buildtech Pvt Ltd. & Ors., appeal bearing no. AT006000000052524 and
appeal no. AT0060000000052543 wherein the Hon’ble Authority has held that
this authority shall have the jurisdiction to adjudicate a complaint seeking
multiple relief including the relief of compensation (like the present
complaint). The purported brochure provides only a typical floor plan of the
building Sun Gates, which is not a sanctioned floor plan. The complainants
further did not even address one single correspondence to the respondent no.
2 to ascertain the status of the said building Sun Gates. Only after 9 years they
realized the purported delay in the construction of the said building. The said
building Sun Gates, is the original building no. 8 on the said property and the
said project is the original building 9 on the said property. Intimation of
approval of building no. 9 i.e. the said project was obtained on 12-11-2012 and
the commencement certificate was obtained in the year 2014. It was the
original building no. 8 for which the IOA was obtained in the year 2005 and
accordingly the respondent no. 2 had made the purported representation to
start the construction of the building Sun Gates (which is the original building
no. 8) within 4 to 6 months from the date of the purported letter of allotment.
They have to rely upon the said development agreement as a whole. Hence,


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they are mere investors. Moreover, due to the Covid-19 pandemic, the said
respondent has faced various difficulties. Despite the same, it has taken all the
requisite steps to complete the project in order to rehabilitate the slum dwellers
and to handover the possession of the flats to the bonafide purchasers in the
said project.

13. The respondent no. 1 has uploaded its additional written arguments on 11-04-
2024 reiterating the facts stated in its reply. Further the complaint is hopelessly
time barred since the allotment letter appears to have been issued in the year
2010 while the complaint seeking specific performance and enforcement thereof
is filed 9 years later. The respondent no.1 has further referred to certain case laws
in its support.

14. The MahaRERA has examined the rival submissions made by both the parties
and also perused the available record. In the present case, the complainants
claiming to be allottees of the said project, by filing this complaint have
approached the MahaRERA mainly seeking reliefs under the provisions of
sections 11 (4) (e), 12, 13, 14 and 19 of the RERA.

15. The complainants have contended that they have booked the said flat in the
project undertaken by the respondent no. 2 vide the allotment letter dated 29-05-

2010. As per the said allotment letter the possession was to be handed over to
them on or before 30-06-2012 (orally). However, the possession was not given to
them on the said date. Also, since the respondent no. 1 has taken over the said
project by signing the development agreements, all the liabilities of the
respondent no. 2 are taken over by the respondent no. 1. Further, the respondent
no. 1 has terminated the said allotment letter in the month of January, 2019,
which shows that it has accepted them as the allottees of the said project. They
have also contended that although in the said allotment letter the building


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number is not mentioned, however, the flat number is mentioned as 807 having
an area admeasuring 795 sq.ft and the CTS numbers are also matching. They
further contended that this complaint is filed within the limitation period as the
respondent no. 1 has terminated the said allotment letter dated 29-05-2010 in
January, 2019 and they have filed this complaint on 29-04-2019.

16. In addition to this, they have also stated that the as no date of possession is
mentioned in the said allotment letter, period of 3 years needs to be considered
as reasonable period for completion of the said project. Hence, they have alleged
violation of section 18 of the RERA by the respondents. They further contended
that the respondent no. 2 being a landowner has not been shown and disclosed
as promoter-landowner in the project registration details on the MahaRERA
website. Furthermore, although 51% of the booking has been done in the said
project, the respondent no. 1 has not formed a society in the said project as per
section 11(4) (e) of the RERA. Hence, they have prayed to allow this complaint.
The complainants have also relied upon the orders dated 23-02-2022 (wrongly
mentioned as 3-08-2021 in the roznama dated 12-06-2024 and hence, the same
stands corrected accordingly) passed by the MahaRERA in the matters of
similarly placed complainants in complaints bearing nos. CC006000000078286
and CC006000000078287. The complainants therefore prayed for similar order in
this complaint.

17. The respondent no. 1 has refuted the aforesaid claim raised by the complainants
mainly on the ground of privity of contract between it and the complainants. It
has contended that the respondent no. 2 viz M/s. Super Constructions, has
terminated the said allotment of the complainants in the month of March 2018.
However, the letter issued by it, (which is relied upon by the complainants of
January, 2019) is actually an offer for continuation in the project given by it to


Complaint No. CC006000000079000


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the allottees of the respondent no. 2 (including these complainants) on new
terms. Therefore, it does not denote that the complainants have privity with it as
alleged by the complainants. It has further contended that the complainants have
pointed out that the case law and earlier orders passed by the MahaRERA in the
said project which the complainants are relying upon, are subject to appeal
before the Hon’ble Appellate Tribunal. Moreover, in another matter of an allottee
by the name - Maniben - as the flat was not shown in the sanctioned plan and
was not available, the MahaRERA has contended that an order for execution of
the agreement for sale is not tenable. Therefore, it has relied upon section 56 of
the Indian Contract Act and contended that the contract if at all with the
complainants is frustrated as there is neither any flat no. 807 (in the buildings
constructed) in the said project, nor there is any flat having an area admeasuring
795 sq. ft. which is available. However, it has contended that in this case, it has
purchased the FSI from the respondent no. 2 in the said plot which has a larger
layout. Further, it has constructed the said project after settling the respondent
no. 2 as per the terms stipulated in the said development agreement. As far as
the issue of formation of society as raised by the complainants is concerned, it
has stated that it has already started the said process. Further, as far as the earlier
order passed by the MahaRERA in the said project relied upon by these
complainants, it has stated that the same are subject matter of the pending
appeals. Hence, it has prayed for dismissal of this complaint.

18. Be that as it may, in the present case, after perusing the available record as well
as from the submissions made by both the parties, the MahaRERA has noticed
that in this particular project the Ld. Erstwhile Member-1/MahaRERA has
passed two distinct orders in the matters of other similarly placed complainants
filed by the other complainant-allottees. Admittedly, the said complainant-


Complaint No. CC006000000079000


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allottees have also sought similar reliefs (substantive in nature) under sections 13
and 18 of the RERA.

19. However,
while
deciding
the
said
earlier
complaint
bearing
no.
CC006000000057896 filed by one Mrs. Sangeeta Punjabi, the Ld. Erstwhile
Member-1 /MahaRERA has passed an order on 03-08-2021. The relevant portion
of the said order reads as under:-
“37 . The MahaRERA has noticed that the allotment letter has been issued to
the complainant in the year 2010. However, till filling of this complaint, the
complainant has not taken any action against the respondent no. 1, with
whom she has privity of contract and to whom she has paid money even
though the agreement for sale was not executed for such a long time. Hence,
the terms and conditions of the development agreement dated 17/10/2017 are
binding upon the parties. Keeping silent for such long period of 9 years, the
complainant at a belated stage has approached MahaRERA seeking relief
under section 13 of the RERA which seems to be hopelessly time barred. The
complainant has not submitted any proof on record of MahaRERA to justify
the said delay.

38. the present case, the said registered development agreement dated
17/10/2017 provides two options / choices to the allottees/ investors either to
take back their money paid to the respondent or to continue in the project as
per the aforesaid terms and conditions mentioned in clause no. 11 of the said
development agreement. Hence, in absence of any documentary proof with
regard to the privity of contract with the respondent no. 8, the MahaRERA
cannot go beyond the liabilities taken over by the respondent no. 8, of the
respondent no.1 by executing the development agreement dated 17/10/2017
Order.

39. In view of the aforesaid facts, the MahaRERA directs both the parties to
act in accordance with the terms and conditions of the said development


Complaint No. CC006000000079000


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agreement dated 17/10/2017 and the respondent no. 8 is directed to either
refund the entire amount to the complainant along with interest or to execute
the registered agreement for sale with the complainant as per the provisions
and agreed terms and conditions of the development agreement.

40. With these directions, the complaint stands disposed of.”

20. However, being aggrieved by the aforesaid order dated 03-08-2021 passed by
the MahaRERA, the said complainant allottee viz Mrs. Sangeeta Punjabi has
preferred an Appeal No. AT006000000053426 before the Hon’ble Appellate
Tribunal on 25-10-2021. The said Appeal is pending for consideration before the
Hon’ble Appellate Tribunal.

21. In the meantime, the other 4 complaints bearing nos. i) CC006000000078286
(Ankush Jindal), ii) CC006000000078287 (Sahil Jindal), iii) CC0060000000192229
(Sandesh Nalawade) and iv) CC0060000000090006 (Shweta Akella) filed by the
other similarly placed complainant-allottees were heard and decided by the Ld.
Erstwhile Member-1/MahaRERA vide a common order dated 23-02-2022 (in
sr. nos. (i) and (ii) ) and on 28-02-2022 (in sr. nos. (iii) and (iv)). Vide the said
common orders, the following directions were issued :-
“15. In the year 2017, when the subsequent development agreement was
entered into between the respondent no. 5, respondent no. 6 and 7 and
respondent no. 1, the status of the allottees who had booked their flats were
shown and taken into consideration in Annexure VII attached to the said
registered development agreement and the names of the present complainants
were also reflected in it. Obviously, it’s evident from the said development
agreement dated 17/10/2017, that the right of the allottees who had booked
their flats/ units had been recognised and the respondent no. 1 while entering
into the said development agreement has accepted the liability of the


Complaint No. CC006000000079000


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respondent no. 5 and it is revealed from the clauses nos. 10, 11 & 12 of the
registered development agreement dated. 17/10/2017, which reads as under:
“Clause 10: That it is mutually agreed and understood between the first
developer and second developer that with effect from 1st April 2016, the first
developer in consultation with the second developer will settle all the claims
of all the investors as per the list amended herewith as “Annexure VII”, herein
referred to as “the list to whom they have given allotment in writings of their
respective investments or otherwise.” The funds as may be required for such
settlements ____ as defined in clause 4(a) will be provided by the second
developer along with any additional amount payable to them as may be
settled with the second developer and such investor with consultation of the
first developer. Such claims shall be settled by the second developer within
period of 12 months from the date of this deed and that the second developer
shall provide proof of payment settled to the first developer.”
“Clause 11: It is agreed by the parties hereto that in the event the investors of
the first developer as per list announced herewith desire to continue of
his/her/their investment with the second developer, then the balance
receivable consideration and all other charges under the MOFA shall be
receivable by the second developer on such terms and conditions which may
agree upon between such investors and the second developer and further
writing, MOU and agreement will be executed between the second developer.
It is agreed, admitted and confirmed by the second developer that the owners/
first developer or their nominees has made payment of ₹ 21,69,500 /- for such
settlement on behalf of second developer and that the second developer shall
reimburse the same to the owners/ first developer or their nominees or
confirmation of the same on execution of this agreement. The second developer
do hereby agree and undertake to indemnify and keep indemnified the owner/
first developer including their respective heirs, executors, administrators and/
or successors against any loss, damage, fine, penalties, legal proceedings and


Complaint No. CC006000000079000


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expenses that may be suffered by, imposed on or taken against the owners/
first developer by any of the investors/ creditors mentioned in Annexure VII.”
“Clause 12: The owners/ first developer hereby confirms and record that there
are no other investors save and accept shown in investors list being Annexure
VII hereto and the first developer further undertakes that if any investor left
or whose names is not in the list shall be settled by the first developer only at
their own cost and expenses.”

16. On perusal of documents submitted on MahaRERA website by the
respondent no. 1, it appears that the respondent no. 5 is not party to this
project under the present name. However, the entire FSI of the previous project
has been sold by the erstwhile developer, i.e. respondent no 5 to the present
promoter or respondent no 1. Moreover, the money paid by the
allottees/investors including the present complainants was utilised by the
erstwhile developer or respondent no 5 for the construction of six buildings.
Hence, the stake of complainants in the project remains undisputed and can’t
be denied. The new developer (respondent no 1) has shown the development
related permissions taken by the earlier developer while registering the
present project. Only the project name and the developer have changed.
Furthermore, the aforesaid clauses of the development agreement (supra)
clearly recognise the rights of the complainants as investors or allottees in the
project land. Both the promoters have accepted all the liabilities of the
complainants by virtue of the development agreement dated 17-10-2017.
Therefore, the rights of the complainants are very well protected in the said
development agreement.

17. The sum and substance of the above discussion in light of the development
agreement signed and executed between the respondent no. 5 (erstwhile
promoter) and the respondent no. 1 (new promoter) dated 17-10-2017 takes one
to the conclusion that the rights of these complainants as allottees are very
well recognised and accepted by both the promoters and accordingly, their


Complaint No. CC006000000079000


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names along with flat numbers and payment made by them were included in
the said development agreement. Further, by signing the said development
agreement, the respondent no. 1 viz the new promoter has taken over all the
liabilities of the erstwhile promoter. Moreover, the said development
agreement was signed and executed on 17-10-2017 after commencement of
RERA and the complainants are not signatory of the said development
agreement dated 17-10-2017. Hence, the MahaRERA feels all the conditions
thereof can’t be enforced upon the complainants. This document only
establishes that that the complainants were allottees of this project on the
date of commencement of RERA on 01-05-2017. Hence, the MahaRERA is of
the view that the respondent no. 1 by taking over the project kept incomplete
by the respondent no. 5 cannot deny the liabilities of the respondent no. 5.
Needless to states here that by virtue of the development agreement dated 17-
10-2017 all liabilities of the respondent no. 5 passed on to the respondent no.

1. 18. Further, after commencement of RERA, the respondent no. 1 new promoter
started terminating the allotment letter issued by the respondent no. 5 by
issuing termination letter to the said “investors/ allottees” of the respondent
no. 5 including the present complainants. It also shows that till the year 2019,
the complainants were allottees of this project and by treating them as an
allottee the said termination was done by the respondent no.1. However, since
the said termination was done without citing any valid reasons, it has no
substance in the eyes of law. However, if these allotment letters issued in
favour of the complainants would have been terminated prior to
commencement of RERA, in that event, it might have been difficult for the
complainants to claim their rights as an allottees in this project. This crucial
aspect has not been brought to the notice of MahaRERA in the earlier case
decided by the MahaRERA in complaint filed by the other allottee of this
project.


Complaint No. CC006000000079000


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19. . In view of the aforesaid facts, the MahaRERA directs that the rights of
the complainants as allottees of this project stands protected and hence it is
held that they are entitled to seek reliefs under the provisions of RERA.

20. As far as claim agitated by the complainants for interest for the delayed
possession under section 18 of the RERA, the MahaRERA is of the view that
there is no agreement for sale showing any agreed date of possession and hence
the complainants are not entitled to seek interest for the delayed possession
under section 18 of the RERA. Hence, their claim for interest stands rejected.

21. Considering these facts, the respondent no. 1 is directed to execute the
registered agreements for sale with the complainants as per the provisions of
section 13 of the RERA within a period of 30 days from the date of this order.

22. With these directions, both the complaints stand disposed of.”
In orders dated 28-02-2022 passed in complaints at sr. nos. (iii) and (iv) similar
observations have been made.

22. However, being aggrieved by the aforesaid two separate common orders
dated 23-02-2022 and 28-02-2022, the new promoter had filed 4 separate review
applications in the form of fresh complaints bearing nos. CC006000000220955,
CC006000000220958, CC006000000220959 and CC006000000220961 before the
MahaRERA on 25-04-2022 seeking review of the said common orders passed
by the Ld. Erstwhile Member-1/MahaRERA in the original complaints filed by
the said complainant allottees under Regulation 36 of the MahaRERA
(General) Regulation, 2017.

23. In the said 4 review applications, the MahaRERA has passed a common order
on 16-01-2024. The said order reads as under: -

17. “In this regard, it is pertinent to note that there are two distinct orders
passed by the MahaRERA in this particular project in the matter of similarly
placed complainant allottee viz Ms. Sangeeta Punjabi. In the said
complaint
no. CC006000000057896
, the Ld. Erstwhile Member -1 passed an order on 03-


Complaint No. CC006000000079000


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08-2021 and dismissed the said complaint on the ground of privity.
Admittedly the said order in this project dated 03-08-2021 is subject matter
of an appeal bearing no. AT006000000053426 filed before the Hon’ble
Appellate Tribunal by the similarly placed allottee viz Ms. Sangeeta Punjabi.

18. Be that as it may, on bare perusal of the submission made by the applicant -
promoter in these review applications, it appears that the applicant -
promoter has agitated similar issues again as raised by him in the
complaints filed by these respondent-allottees vide which the said impugned
orders came to be passed. Further, from these rival submissions made by both
the parties and before going into the merits of the earlier order passed by the
Ld. Erstwhile Member-1/ MahaRERA, the only issue MahaRERA has noticed
in the impugned orders dated 23-02-2022 (sr. nos. 1 and 2) and 28-02-2022 (in
sr. nos. 3 and 4), that fair opportunity of hearing was given to the applicant
-promoter. Accordingly, the applicant-promoter appeared for the said
hearings and argued the matters at length by citing various clauses of the
said development agreement signed by and between the applicant promoter
and the erstwhile promoter. Hence, now the applicant-promoter cannot
contend that no opportunity has been granted to him before passing the said
orders.

19. Further, the said orders clearly record that the applicant -promoter has taken
over the liability of the erstwhile promoter by signing the said development
agreement as the names of these respondent allottees are listed in the said
development agreement. Hence, the applicant-promoter cannot term it as an
error apparent on the face of the record for the findings given in the said
orders for which the applicant-promoter can seek review of the same as it is
a well-reasoned order passed by the Ld. Erstwhile member-1/MahaRERA.
Moreover, the applicant-promoter has pleaded the grounds of appeal which
are to be agitated before the Hon’ble Appellate Tribunal and hence the same


Complaint No. CC006000000079000


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cannot be taken into consideration by the MahaRERA while deciding these
review applications within the ambit of section 39 of the RERA and
Regulation 36 of the MahaRERA (General ) Regulation, 2017.

20. In addition to this, the applicant-promoter has neither brought any new fact
on record of MahaRERA to seek review of the said order nor has shown any
error apparent in the said orders as contemplated in Regulation 36 of the
MahaRERA (General) Regulation ,2017 and section 39 of the RERA. Hence,
the MahaRERA is not inclined to grant any reliefs to the applicant in these
review applications. Needless to state here that whatever order which would
be passed by the Hon’ble Appellate Tribunal in the said pending appeal no.
AT006000000053426 filed by the allottee Ms. Sangeeta Punjabi would be
binding upon all the parties concerned including the MahaRERA.
Consequently, these 4 review applications stand dismissed for want of
merits.”

24. However, in the present case on bare perusal of the available record, the
MahaRERA has noticed that the said new promoter being aggrieved by the
aforesaid common order dated 16-01-2024 has filed the appeals bearing nos.
AT006000000214961 (on 24-02-2024), AT006000000245176 (10-05-2024),
AT006000000275236 (11-06-2024) and AT006000000235067 (on 28-03-2024)
before the Hon’ble Appellate Tribunal. The said appeals are sub-judice
before the Hon’ble Appellate Tribunal as on date.

25. During the course of hearing, the complainants allottees have prayed for
similar order in these complaints passed by the Ld. Erstwhile Member-
1/MahaRERA on 23-02-2022. However, the respondent no. 1 has mainly
contended that the said orders are under consideration before the Hon’ble
Appellate Tribunal.


Complaint No. CC006000000079000


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26. Be that as it may, in the present case, as stated hereinabove, there are two
distinct orders which seem to have been passed in this project in the matters
of similarly placed complainants. No doubt that the very first order dated 3-
08-2021 passed by the MahaRERA which is challenged by the said
complainant allottee has bearing in the other 4 complaints subsequently
decided by the MahaRERA vide orders dated 23-02-2022 and 28-02-2022
meaning thereby, if the said order dated 3-08-2021 is set aside by the Hon’ble
Appellate Tribunal, in that event the subsequent orders dated 23-02-2022 and
28-02-2022 would stand confirmed and vice versa.

27. Admittedly, all these orders of 2021 and 2022 are under consideration before
the Hon’ble Appellate Tribunal and hence, the decision on this complaint at
this stage would amount to prejudging the issue pending before the Hon’ble
Appellate Tribunal which may also lead to multiplicity of proceedings.

28. As far as the issue of formation of society under section 11(4) (e) of the RERA
raised by the complainants, the MahaRERA is of the view that the captioned
project is still incomplete and the respondent has not yet obtained the full
OC for this project. Further, as per registration details, it seems that more
than 51 % booking has been done in the project and hence, the respondent
no. 1 is under statutory obligation to enable the process of formation of
society as contemplated under section 11(4) (e) of the RERA.

29. In view of these facts and in compliance of principles of natural justice, the
following order is passed:-
a. The present complaint is adjourned sine die till final disposal of the
pending appeal no. AT006000000053426 filed by Mrs. Sangeeta
Punjabi before the Hon’ble Appellate Tribunal.


Complaint No. CC006000000079000


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b. However, liberty is granted to the complainants to approach
MahaRERA after final disposal of the said pending appeal if need
be.


(Mahesh Pathak)
Member – 1/MahaRERA