BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY
MUMBAI

1. Complaint No. CC0060a00000192987

Abhijit Birjepatil


... Complainant

Versus

M/s Siroya FM Constructions Pvt Ltd
Shrenik Siroya
Fatesh Mirchandani
(Navghar Yashashree Co-operative Housing Society)
... Respondents
Along with

2. Complaint No. CC006000000198351

Hirengiri D Goswami &
Hemina H Goswami


... Complainants

Versus

M/s Siroyafm Constructions Private Limited
(Navghar Yashashree Co-operative Housing Society)
... Respondents
Along with

3. Complaint No. CC006000000198350

Hirengiri D Goswami &
Hemina H Goswami


... Complainants

Versus

M/s Siroyafm Constructions Private Limited
(Navghar Yashashree Co-operative Housing Society)
... Respondents


MahaRERA Project Registration No. P51700008388


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

Ld. Adv. Anwar Landage appeared for the complainant at sr. no. 1.
Ld. Adv. Girish Tribhuvan appeared for the complainants at sr. nos. 2 and 3.


Complaint No. CC006000000192987
and 02 other Complaints

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Ld. Adv. Aniketh Poojary appeared for the Mulund Navghar Yashshree CHS
Ltd.


INTERIM ORDER


(Tuesday, 23rd April 2024)

(Through Video Conferencing)


1. The complainants above named have filed these 3 separate online complaints
before the MahaRERA on 16/02/2021, 24/09/2021 and 24/09/2021 mainly
seeking directions from MahaRERA to the respondent - promoter to handover
possession with occupation certificate, interest for delayed possession till the
date of actual possession, compensation and cost (amended prayer) 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 their respective flats / units (as mentioned in the table below) in
the respondent’s registered project known as “Yashashree” bearing
MahaRERA registration No. P51700008388 located at Thane.

2. These complaints were clubbed together and the same were heard on several
occasions 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. On the said dates of hearings,
the parties have appeared as per their appearances recorded in the roznamas
and made their respective submissions. The MahaRERA heard the
submissions of the parties as per their appearances and also perused the
available record.

3. After hearing the argument of the parties concerned (as per their appearances),
the following Roznamas were recorded in the said hearings in these


Complaint No. CC006000000192987
and 02 other Complaints

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complaints

i)
On 06/09/2022:
“The complainant is present. The respondent is absent. The complainant
avers that this is a redevelopment project and the society is in the process of
stepping into the shoes of the respondent under section 15 of the RERA as per
the orders of the MahaRERA dated 18-08-2021 and 03-12-2021 in other
complaints filed with respect to different projects. Meanwhile, the
complainant desires that no third-party interest be created with respect to
their flats till such time. Relevant pursis may be filed by the complainants to
that effect. The complainants are directed to file an application to bring the
society on record (if not already filed) within one week i.e. 13-09-2022 and
serve the same to the society as well. Subsequently, the matter may be reserved
for

INTERIM ORDER

regarding creation of third-party rights. The complainants
are directed to serve the society as well. Matter may be adjourned to the
subsequent date. List the matter for next hearing on 11-10-2022.”

ii)
On 11/10/2022:
“The complainants are present. The respondent (M/s Siroya FM Constructions
Pvt Ltd) is present. The complainants have filed amendment applications to
implead the society (Navghar Yashashree Co-operative Housing Society) as a
party respondent to these complaints (the respondent no. 4 in complaint at sr.
no. 14 and respondent no. 2 in complaints at sr. nos. 21 & 22) as well as
amendment to change their prayers from “refund with interest and
compensation” to “possession with interest for delayed possession and
compensation” (in sr. no. 14). The complainants at sr. nos. 21 & 22 are directed
to amend their prayers accordingly from “refund with compensation” to
“possession with interest for delayed possession and compensation” as
mentioned during the hearing by the said complainants. The respondent
promoter also points out that respondent no. 3 (one of the directions of the


Complaint No. CC006000000192987
and 02 other Complaints

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respondent promoter) in complaint at sr. no. 14 has unfortunately passed
away. In view of the above, notice may be issued to the newly impleaded
society (Navghar Yashashree Co-operative Housing Society) which is the
respondent no. 4 (in sr. no. 14) and respondent no. 2 in sr. nos. 21 & 22. The
complainants in sr. nos. 21 & 22 are also directed to file a purshis to amend
the prayers within a period of one week i.e. by 18-10-2022. The matters are
adjourned to a suitable date after 18-10-2022 for further hearing. List the
matters for final hearing on 01-12-2022.”

iii)
On 01/12/2022: -
“The complainants are present. The respondent is absent. However, the society
(Navghar Mulund Yashashree CHS Ltd) appears through its Advocate Mr.
Aniketh Poojari and Chairman Mr. Mokashi. However, the society has
challenged the previous Roznama vide which it was impleaded as a party to
these complaints in the Hon’ble High Court at Bombay. Notwithstanding, the
above fact, the complainants are directed to serve copies of the complaints
and associated documents on the Navghar Mulund Yashashree CHS Ltd as
requested by its advocate. This may be done vide email, physical, post or by
any other means possible. As the Hon’ble High Court is to hear the above
challenged petition on 13-12-2022 it would be in the fitness of things to take
up these complaints after the said hearing. The request of the complainants
are for possession alongwith interest and compensation for delayed
possession and to protect their rights as allottees vide registered agreements
for sale. The complainants are also directed to upload all necessary documents
i.e. the development agreement as well as cancellation deed in these
complaints. The matter is adjourned to a suitable date after 13-12-2022 for
further hearing. List the matters for next hearing on 19-01-2023.”

iv)
On 19/01/2023:-


Complaint No. CC006000000192987
and 02 other Complaints

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“The complainants are present. The respondent nos. 1,2 & 3 are absent. The
respondent no.4/society (in sr no. 10 i.e.
complaint No. CC006000000192987
) is
present. As per the previous Roznama dated 01-12-2022, the matter regarding
impleading the society as a party is before the Hon’ble High Court at Bombay.
Also, the complainants have served copies of the complaints and associated
documents on society viz Navghar Mulund Yashashree CHS Ltd. However, as
the matter is still pending before the Hon’ble Bombay High Court, it would be
in the fitness of things to take up these matters after the hearing and order in
the said writ petition. Accordingly, the matters are adjourned to a suitable
date for further hearing. List these matters for next hearing on 5-04-2023.”

v)
On 05/04/2023:
“The complainants are present. The respondent nos. 1, 2 and 3 are present (Sr
No. 1 - CC006000000192987) and the respondent nos. 1 and 2 are present (Sr.
No. 7 - CC006000000198350 and Sr. No. 8 - CC006000000198351). As per the
previous Roznama, the matter regarding impleading the society as party is
before the Hon’ble Bombay High Court and the next date of hearing is 20-04-

2023. Therefore, as the matter is still pending before Hon’ble High Court, it
would be proper to take up these matters after order is issued in the said writ
petitions bearing Writ Petition No. 201/2023, Writ Petition (Lodging) No.
36879/2022 and Writ Petition (Lodging) No. 36882/2022. Accordingly, these
matters are adjourned to a suitable date for further hearing. List these matters
for next hearing on 06-06-2023.”
vi)
On 06/06/2023
The complainant in Sr. No. 1 - (CC006000000192987) is present. The
complainants in Sr. No. 3 - (CC006000000198350) and Sr. No. 4 -
(CC006000000198351) are absent. The respondent no. 4 in Sr. No. 1 -
(CC006000000192987) and the respondent no. 2 in Sr. No. 3 -
(CC006000000198350) and Sr. No. 4 - (CC006000000198351) the society is
present. As per the previous Roznama, the matter regarding impleading the


Complaint No. CC006000000192987
and 02 other Complaints

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society as a party is pending before the Hon’ble High Court at Bombay and
both the parties informed that next date of hearing is 15-06-2023.
Accordingly, these matters be adjourned to a suitable date for further
hearing after 15-06-2023. Therefore, these matters are adjourned to a
suitable date after 15-06-2023 for further hearing. List these matters for next
hearing on 22-08-2023.
vii)
On 22-08-2023:-
“The complainants are present. The respondent no. 1, 2 and 3 are present.
As mentioned in the previous roznama, the matter before the Hon’ble High
Court at Bombay is now adjourned to 01-09-23. Therefore, these matters are
adjourned to a suitable date after 01-09-2023 for further hearing. List
these matters for next hearing on 29-11-2023”.

viii)
On :-29-11-2023:-
“The complainants are present. The respondents no. 1, 2 and 3 in the
complaint at Sr. No. 4 (CC006000000192987) and the respondent no. 1 in the
complaints at Sr. Nos. 5 (CC006000000198350) and 6 (CC006000000198351)
are absent. The Co-Operative Housing Society i.e. Navghar Mulund
Yashshree Housing. Society Limited (Society) is present through its
advocate.
The advocate for the society requests that the complainants may serve the
copies of the amendment applications filed by the complainants impleading
it as party respondent to these complaints along with all the annexures and
documents. Accordingly, one week’s time i.e. till 06-12-2023 is granted to the
complainants to serve the society and upload the proof of service on
MahaRERA website in the complaints along with application for
amendment in these complaints. The society is granted further 2 weeks’ time
i.e. till 19-12-2023 to file its reply on the issue of impleading the society as
party respondent in these complaints.


Complaint No. CC006000000192987
and 02 other Complaints

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These matters are adjourned to a suitable date after 19-12-2023 for further
hearing. List these matters for next hearing on 27-12-2023.
ix)
On 27-12-2023:-
“The complainants are present. The Society for whom the request for
impleadment was made by the complainant is present. The society has
also filed its reply to the application of the complainant for such
impleadment dated 08-09-2022 in the complaint at Sr. No. 17
(CC006000000192987) and 06-09-2022 in Sr. No. 18 (CC006000000198350)
and 19 (CC006000000198351). The copy of the said reply dated 19-12-2023
is received by the complainant. Therefore, the complainants may file their
rejoinder to the said reply of the society along with their written
arguments in support of their application for impleading the society
within a period of 2 weeks i.e. by 10-01-2024. Further 2 weeks’ time i.e. till
24-01-2024 is granted to the society to file sur-rejoinder, if any and written
arguments on the issue of its impleadment. Both the parties have argued
in the hearing today. The society avers that it has neither an area share
nor a profit/revenue share in the project and it is only a notional promoter
shown in the project registration on MahaRERA website by virtue of the
application made by the respondent - M/s. Siroya Constructions, which
was the erstwhile developer. Therefore, the society contends that it has no
formal responsibility as a promoter and therefore, should not be impleaded
as a party respondent in these complaints. However, the complainants
have refuted this contention of society and has pointed out to case law
vide which the society in redevelopment project have been held to be
promoter in project. Further the complainants also mention that an
additional area has been granted to the members of the society which in
turn benefits the society as well. Therefore, on these grounds the society
should be impleaded as a necessary party in these complaints. In view of
the above, the application filed by the complainants for impleadment of
the society is reserved for orders based on the arguments of both the sides


Complaint No. CC006000000192987
and 02 other Complaints

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as well as the reply of the society, rejoinder of the complainants and the
written arguments filed in these complaints suitably after 24-01-2024.
Needless to say both the parties may serve each other with the copies of
the rejoinder and written arguments.

4. Pursuant to the aforesaid direction issued by the MahaRERA, the
complainant at sr. no. 1 has uploaded amendment application along with
written arguments on 22-01-2024. The same is accepted and taken on record.
The MahaRERA has perused the available record.

5. The complainants by filing these online complaints have mainly prayed for
handover of possession with occupation certificate, interest for delayed
possession till the date of actual possession (sr. no. 1) and. refund along with
interest; compensation and cost; restraining from creating third party rights
till realisation of refund (sr. nos.2 & 3) . The information provided by them in
their online complaints is as follows -

Complaint No.
Name

of
the
Complainant
Flat Details
Total
Consideration
Consideration
Paid
Date of Agreement
for Sale
Date of Possession
as per AFS
Reliefs Sought
CC006000000192987

Abhijit Birjepatil

- Flat no. 103 on
1st Floor
Rs.33,00,000/-
Rs. 24,45,233/-
13-02-2010
–
executed.
15-02-2010
–
registered

18-02-2010
–
amenities
handover
possession
with
occupation
certificate,
interest
for
delayed
possession till the
date
of
actual


Complaint No. CC006000000192987
and 02 other Complaints

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agreement
(unregistered)
Clause 6 – on or
before October 2011
possession.
(amended prayer)
CC006000000198351

Hirengiri D Goswami
& Hemina H
Goswami

Flat No. 1103,
on
the
11th
Floor,

Rs. 44,55,000/-
Rs.15,31,053/-
02/02/2011
Clause 7 – on or
before
by
31/05/2013 with 90
days grace period

handover
possession
with
occupation
certificate,
interest
for
delayed
possession till the
date
of
actual
possession.
(amended prayer)
CC006000000198350
Hirengiri D Goswami
& Hemina H
Goswami

Flat No. 1101,
on
the
11th
Floor

Rs. 62,43,750/-
Rs. 27,05,022/-
02/02/2011

Clause 7 – on or
before
by
31/05/2013 with 90
days grace period

handover
possession with
occupation
certificate, interest
for delayed
possession till the
date of actual
possession.
(amended prayer)

6. The complainants (who are the allottees of this project registered by the
respondent no. 1 promoter) have filed these complaints mainly seeking reliefs
under section 18 of the RERA towards possession of their respective flats by
virtue of the registered agreements for sale as stated in the aforesaid table at
para no. 5.


Complaint No. CC006000000192987
and 02 other Complaints

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7. However, in the present case, as recorded in the aforesaid roznama dated 6-
09-2022 and 11-10-2022, the complainants herein have informed the
MahaRERA that the society viz Mulund Navghar Yashashree CHS Ltd has
undertaken this redevelopment project by assigning the development rights in
favour of the respondent no. 1 promoter viz. M/s Siroyafm Constructions
Private Limited and is stepping into the shoes of the respondent no. 1 under
section 15 of the RERA. Hence, they prayed to protect their rights as allottees
of this project. Accordingly, the complainants (as applicable) have also filed
amendment application for joining the society as party respondent to these
complaints.

8. Accordingly, the MahaRERA vide the aforesaid roznama recorded on 11-10-
2022 has allowed the said amendment applications filed by these complainants
and directed them to implead the said society viz Mulund Navghar
Yashashree CHS Ltd as party respondent no. 4 (in complaint at sr. no. 1 ) and
the respondent no. 2 ( in complaints at sr. nos. 2 and 3). It was further directed
to issue notice to the said society for next hearing.

9. However, being aggrieved by the aforesaid directions dated 11-10-2022 issued
by the MahaRERA, the said society had filed 3 separate Writ Petition bearing
No. 1870 of 2022, W.P. No. 201 of 2023 and W.P. (L) No. 36879 of 2023
(respectively) before the Hon’ble High Court at Bombay. In the said Writ
petitions, the Hon’ble High Court was pleased to pass an orders on 03-11-2023
and issued following directions:-

“i) Impugned order dated 11.10.2022 is quashed and set aside with a direction
to the Competent Authority to hear the amendment Application filed by the
original complainants afresh after giving notice of the same to the Society


Complaint No. CC006000000192987
and 02 other Complaints

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(Petitioner);
ii) Copy of amendment Application shall be served on the Society within 2
weeks from today by Applicants. Society shall be entitled to file its Affidavit-
in-Reply to the amendment application within a period of two weeks from the
date of receipt of the Amendment application;
iii) All contentions of the Society and the Complainants / Applicants before
Maha Rera to seek their impleadment as Promoter in place of the original
Developer are expressly kept open. Amendment Application shall be heard
afresh by the Competent Authority strictly in accordance with law within a
period of 8 weeks thereafter, after giving adequate opportunity to all parties
i.e. Society, original Complainants / Applicants and the Developer and a
reasoned order shall be passed thereafter”.

10. Pursuant to the aforesaid directions issued by the Hon’ble High Court at
Bombay, these complaints were scheduled for hearings on 28-11-2023 and 27-
12-2023 to hear the amendment applications filed by these complainants for
joining the society as party respondent. Accordingly, ample opportunity was
granted to both the parties to file their respective submissions on record of
MahaRERA till 24-01-2024 after which these matters were closed for orders for
passing a reasoned order on the said amendment application filed by these
complainants.

11. However, from the record, it appears that although these matters were heard
and closed for order after 24-01-2024, however the said society viz Mulund
Navghar Yashashree CHS Ltd has also filed a sperate online
Complaint No.
CC006000000428963
before the MahaRERA on 24-01-2024. In the said
complaint, the society has prayed for following reliefs:-

“a) That this Hon’ble Authority may be pleased to pass an Order revoking the
registration of Project Yashashree bearing Project Registration No.


Complaint No. CC006000000192987
and 02 other Complaints

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P51700008388;
b) That this Hon’ble Authority after passing of an Order revoking the
registration of Project Yashashree bearing Project Registration No.
P51700008388 may be pleased to pass an Order directing the Respondent No.2
Developer to apply for fresh registration of the redevelopment project with
new Project name and new Project Registration No. with the Respondent No.2
Developer as the Promoter of the said redevelopment project and that the
Complainant No. 1 Society not to be shown as Promoter in the online
registration application for the new Project to be made by the Respondent
No.2 Developer.
Alternatively
a) That this Hon’ble Authority may be pleased to pass an Order permitting
the registration of Project Yashashree with the Project Registration No.
P51700008388 to remain in force with direction to record the name of the
Respondent No.2 Developer as the Promoter of the said Project in place of the
Respondent No.1 Developer and further directing the office of MahaRERA to
record the correct address of the said Project at Mulund East, Mumbai .
b) That this Hon’ble Authority may be pleased to pass an Order holding
therein that the Complainant No.1 Society is not a Promoter under the
provisions of RERA in respect of the said redevelopment project if the said
Project is not revoked and continued with same Project Registration No. and
further directing the office of MahaRERA to update the same on the website
of the Project.
c) That this Hon’ble Authority may be pleased to pass an Order directing the
Respondent No.1 Developer to take up the liability of all those flat purchasers
who have booked flats through it and who fail to arrive at an agreement with
the Respondent No.2 Developer with regard to the amount of payment of the
additional consideration by the said flat purchasers to the Respondent No.2
Developer over and above the balance consideration payable as envisaged by
the terms of the Deed of Cancellation of the Development Agreement dated 3-


Complaint No. CC006000000192987
and 02 other Complaints

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1-2022”.

12. The aforesaid complaint filed by the society has direct bearing in these
complaints filed by these complainants allottees agitating their claim in this
project, which the society is seeking for revocation under section 7 of the
RERA. The said complaint filed by the society was heard by the MahaRERA
on 4-04-2024, when the parties therein appeared (as per the appearance
recorded by the MahaRERA) before the MahaRERA, when the following
roznama was recorded in the said complaint:-
“First Hearing Matter”
The complainant is present. The respondent no. 1 is absent. The respondent no.
2 is present.
Both the parties agree that this matter may be fixed for hearing on merits.
Therefore, this matter is to be fixed for hearing on merits strictly as per
seniority. Meanwhile, the Registry / Registration Section is directed to take -
up the issue of transferring the project registration from the respondent no. 1 -
erstwhile developer to the respondent no. 2, which is a new developer, as per
the CC issued in favour of the respondent no. 2.”

13. The aforesaid complaint filed by the society has direct bearing in these
complaints, as from the complaint filed by the society it appears that the
society has already terminated the development agreement executed with
M/s. Siroyafm Constructions Private Limited (respondent no. 1 in these
complaints) and appointed M/s. Trupti Buildcon LLP as new promoter and
the said new promoter has also obtained commencement certificate in its
name.

14. Hence, it was in the fitness of justice to hear the said complaint filed by the
society before dealing with the issue of impleadment of the society as party to


Complaint No. CC006000000192987
and 02 other Complaints

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these complaints raised by these complainants by virtue of the amendment
applications filed on record.

15. The complainants have also uploaded the amendment application in which
they sought permission to amend the complaint by adding society as
respondent no. 4 (in sr. no. 1) and respondent no. 2 (in sr. nos. 2& 3). The
complainant at sr. 1 uploaded the said application on 08-09-2022 and the
complainant at sr. nos. 2&3 have uploaded the said application on 06-09-2022.
The complainants have contended that the society viz Mulund Navghar
Yashashree CHS Ltd (hereinafter referred to as “the said Society”) somewhere
in 2008 decided to redevelop the building named “Yashashree” and in
pursuance thereof, entered into Development Agreement dated 29/04/2008
with respondent no. M/s. Siroyafm Constructions Private Limited i.e. the
respondents herein whereby the said society, sold, transferred and assigned
all its development rights in favour of the respondents herein. Thereafter, they
came to know that the society has terminated development agreement entered
into and between the said society and the respondent no.1 herein through
cancellation deed dated 03/01/2022 and the same is duly registered. Further,
the society is willing to appoint a new developer for completing the
redevelopment of the said project. However, the respondents herein or the
new developer to be appointed by the said society failed to complete the
project then the said society shall be liable to complete the said project and
handover possession to the complainants. Moreover, the said society is the
Landowner and therefore is the promoter of the said project as per the section
2(zk) of RERA. Hence, at present, these complaints are primarily being
amended to include the name of the said society as respondent to these
complaints. To support their claims, the complainants have also relied on
order passed by the RERA in case of Saturn Advisory Services Private Limited
V. M/S. Parthesh Developers / Mr. Nirav P. Shah bearing
Complaint No.

Complaint
No. CC006000000192987 and 02 other Complaints

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Page 15 of 26
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CC006000000057853
dated
18/08/2021
whereby
the

Hon’ble
Chairperson/MahaRERA has directed the said society to safeguard and
protect the interest of all aforesaid new flat purchasers of the said project by
adopting a course of redevelopment either by itself or by appointing a
developer for the said project. Needless to say, that the liabilities and rights
and responsibilities of each and every one associated with the said project as
on date shall be dealt with on as is where is basis. The MahaRERA had
observed that: “………. the said Society shall step into the shoes of the
Respondent from hereon and shall ensure the smooth completion of the said
Project safeguarding interest which shall include payment of interest on
delayed possession of all present Allotees and all new Purchasers if any in the
said Project and in no manner jeopardize their interest in terms of their
individual rights and interest in the said Project.” They further relied on the
order passed by the MahaRERA in Ramasubramanian R. Nadar V. Siroya Yug
Realtors and Ors. bearing
complaint no. CC006000000057249
dated
03/12/2021 whereby it is observed that the society shall take all steps
necessary to protect and safeguard all the bonafide liabilities and rights of the
allottees of the real estate project. The relevant portion of the said

JUDGMENT

is
reproduced hereunder: “Needless to say, till such time the permission is
granted to the Society for change in the Promoter, the said Society i.e.
Respondent No.2 being a primary Promoter shall take all steps necessary to
protect and/ or safeguard all bonafide liabilities and rights created by the
terminated Developer i.e. Respondent No. t herein. It shall also be ensured that
the obligations as Per the letter of allotments of each of the Complainants
herein shall be complied with and their rights and interests shall be
safeguarded, upon the transfer of the said Project from Respondent No.1 to
any other new Promoter / Developer.”

16. The complainants further stated that, now since the society has come into the
place of developer, they prayed for directions that the society should not


Complaint No. CC006000000192987
and 02 other Complaints

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create third party rights in respect of their flats booked in this project. The
complainants have also uploaded their application with amended prayers
from refund along with interest and compensation to handover possession
along with occupation certificate, interest for delayed possession till handing
over the actual possession, compensation and cost on 11-10-2022, 15-11-2022,
15-11-2022 respectively.

17. The said society has also filed its reply on record of MahaRERA to the
application for amendment on record of MahaRERA on 19-12-2023 (in hard
copy) , wherein the society has contended that; the present complaints are not
maintainable and deserve to be dismissed. It has stated that the name of the
society mentioned in the said registration application is wrongly mentioned.
It has further stated that the said application for amendment is not even signed
and or verified by the complainants but has been signed by their advocates. It
has further stated that, it is a co-operative society registered under the
provisions of Maharashtra Cooperative Housing Societies Act,1960 and
located on land that is leased to it by MHADA. It has appointed the respondent
no. 1 as the developer to redevelop its property and the development
agreement dated 29-04-2008 was executed and registered between the
respondent no. 1 and the society. Further as per clause 21 of the said
agreement, it was agreed between the parties that the developer shall construct
a building using the available FSI on the plot and provide permanent alternate
accommodation to the said 80 members free of cost and after allotment of flats
agreed to be given to the members of the society, the developer shall have sole
rights to sell the remaining premises constructed by it to prospective buyers
and the developer shall have right to use and appropriate the sale proceeds
thereof without rendering any account to the society. Further, as per clause 11
(n), it was agreed between the parties that, all the agreements for sale with
prospective purchasers of flat will be entered into by the developer alone and


Complaint No. CC006000000192987
and 02 other Complaints

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the developer alone shall be liable and responsible to the purchasers of flats
and the society and its member shall in no way be held liable and responsible
for any breach of contracts. It has also contended that, as per clause 29 of the
agreement, the developer alone shall be responsible for any claim made by the
third party in respect of any flat / parking places sold to prospective
purchasers and the developer hereby agrees to indemnify and keep
indemnified and harmless the society and its members from all cost, charges
and expenses and or damages caused to the prospective purchaser. After
necessary approvals and permissions, the respondent no. 1 began the
construction of new building of stilt + 2 podium + 17 floors as per the plan
sanctioned by MCGM authorities. Initially the respondent no. 1 constructed 3
floors of the new building and paid the monthly compensation amount to the
society’s 80 member. Since about 2013 the construction was stopped. It has
further followed up with the respondent no. 1’s director regarding stoppage
of work and non-payment of the monthly compensation amount when it was
learnt that the respondent no. 1 was in bad financial situation which adversely
affected the said redevelopment project. Moreover, the respondent on their
own did not disclose the details of the flat purchasers who had booked the flat
in the new building and their part payments received from the purchasers
including the complainants herein. The part payment received by the
respondent no.1 – developer was entirely retained by the respondent no. 1 and
there was no question of sharing any amount out of the consideration received
from the purchasers towards the sale of flats with the society. The said
respondent is not party to any of the agreements arrived between the
respondent no.1 and complainants herein. Thus, there is no privity of contract
between the society and the complainants. The respondent no. 1 is solely
responsible and liable. On account of failure of payment of the outstanding
property tax dues, the MCGM issued notice against the said property of the
respondent no. 1 developer. The said respondent also issued notice to the


Complaint No. CC006000000192987
and 02 other Complaints

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respondent no. 1 to pay the outstanding tax dues and on failure of the
respondent to do so, the respondent no. 1 with consent of General Body filed
arbitration petition no. 627/2018 before the Hon’ble Bombay High Court
under section 9 if the arbitration petition against the said respondent.
Thereafter the Hon’ble Bombay High Cout vide interlocutory orders directed
the respondent to pay the property tax amount and certain part payment was
made by the respondent no. 1 to MCGM. Meantime, the respondent got the
said project registered under the RERA. The said respondent further stated
that, due to additional FSI made available to the MHADA leased plots,
MHADA issued revised offer letter in March 2021 for the redevelopment of
the society’s said property. In spite of several reminders, the respondents did
not take any initiative whatsoever and they also orally expressed that they
were not at all interested in continuing with the said project. After getting
offers from new developers as per the said respondent’s wish, the said
respondent in July 2021 called general body meeting wherein resolution was
passed to terminate the development agreement dated 29-04-2008 and also
revoke the power of attorney. The said respondent also passed a resolution to
appoint M/s Trupti Buildcon LLP as the new developer for further
redevelopment. After much persuasion, the draft of deed of cancellation was
finalized and same could be registered and executed between the respondent
no. 2 and the respondent no. 1. Further, the said respondent after the
registration of cancellation deed has withdrawn the said arbitration petition
filed by it. Moreover, the Mumbai Board of MHADA issued a notice in April
2022 to 38 leased societies regarding the cancellation of NOC for
redevelopment due to delays in building new buildings. The said respondent
stated that M/s Trupti Buildcon LLP the new developer would be the
promoter of the redevelopment project under RERA and necessary application
in this regard will be submitted to RERA in due course. As M/s Trupti
Buildcon LLP would be the promoter of the redevelopment project, the


Complaint No. CC006000000192987
and 02 other Complaints

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application of the complainants to add the society as party respondent in the
capacity as promoter has now become infructuous and even otherwise
deserves to be dismissed. The said respondent has not even received any
revenue share generated from flats by the respondent no. 1. The respondent
no. 1 has not shared any area out of the total area developed by it for sale which
can be marketed and or sold by the said respondent. Therefore, it cannot be
considered to be ‘promoter’ under the provision of section 2(zk) of RERA as
clarified by RERA in its circular No. 12/2017 dated 04-12-2017. Further
respondent also relied on circular No. 13/2017 dated 04-12-2017 of RERA. The
said respondent further replied para wise to the complainants amendment
applications.

18. The complainant at sr. 1 has also uploaded the written arguments on 22-01-
2024
which
is
mere
repetition
of
what
he
has
stated
in
his
complaint/amendment application.

19. The society has also filed the written arguments in hard copy on 24-01-2024,
wherein it has sought specific date for submitting oral arguments before the
MahaRERA before passing an order on the said amendment application.
However, in its written arguments it has stated that during the time of the
online registration of the said project, the respondent no. 1 developer being the
promoter of the said project filed an application wherein the said respondent
was shown as co-promoter, which has come to the knowledge of the said
respondent just recently during the course of hearing before the MahaRERA.
Thus, to term it as co-promoter in the said application is on the face of it,
incorrect as the development agreement dated 29-04-2008 nowhere says that
the developer is to share any area developed for sale, with the society which is
to be further marketed and or sold by the society. The RERA has issued
registration certificate for the project on 18-08-2017 which is subject to certain


Complaint No. CC006000000192987
and 02 other Complaints

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conditions. It has also relied on

JUDGEMENT

passed by the MahaRERA as well
as the Hon'ble Maharashtra Real Estate Appellate Tribunal (hereinafter
referred to as ‘MahaREAT’) in the case between Samudra Darshan
Cooperative Housing Society Ltd. v/s Peter Almeida and Ors. wherein the
Hon'ble MahaREAT has held that in the absence of privity of contract, the
society and new developer cannot be held liable to allottees and consequently
allottees are not entitled to reliefs as claimed in complaint against the society
or new developer and the complaints were remanded to the MahaRERA for
considering and deciding the claim of allottees afresh to the extent of refund
of the amount against erstwhile developer after hearing the concerned parties.
Furthermore, the law laid down by the Hon'ble Bombay High Court in the case
between Vaidehi Akash Housing Pvt. Ltd. v/s New D.N. Nagar Housing
Society & Ors. and in the case between Goregaon Pearl CHSL v/s Dr. Seema
Mahadev Paryekar & Ors. which is followed by the Hon'ble MahaREAT in the
Judgments passed in the case between Udayanchal Goregaon CHSL v/s Manoj
Kumar Mistry, in the case between Neumee Developers and Builders v/s
Antop Hill Warehousing Company Ltd., in the case between New Sangeeta
CHS v/s Kaushal Haria & Ors. and which are referred to in the case between
Samudra Darshan Cooperative Housing Society Ltd. v/s Peter Almeida and
Ors.; the Society cannot in law be saddled with the liability that has been
undertaken by the developer alone on account of breach of the terms and
conditions of the agreement arrived between the developer and the flat
purchaser in absence of any privity of contract between the society and the flat
purchaser.

20. The MahaRERA has examined the rival submissions made by both the parties
viz. the complainants and the society on issue of amendment for joining the
society as party respondent to these complaints and also perused the available
record.


Complaint No. CC006000000192987
and 02 other Complaints

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21. The complainants herein have mainly contended that the society who causes
the development in the project by assigning the development rights to the
respondent no. 1 viz SiroyaFm Constructions Pvt. Ltd is also a ‘promoter ‘ as
defined under section 2(zk) of the RERA. Further, it is a redevelopment project
and the society is stepping into the shoe of the respondent no. 1 viz M/s.
Siroya Fm Constructions Pvt. Ltd under section 15 of the RERA. Further the
complainants also contended that an additional area has been granted to the
members of the society which in turn benefits the society as well. Therefore,
on these grounds the society should be impleaded as a necessary party in these
complaints. To support their contentions, they have relied upon various orders
passed by the MahaRERA as well as the Hon’ble High Court at Bombay as
stated hereinabove.

22. However, the society has assailed the aforesaid claims of the complainants
mainly contending that it has neither an area share nor a profit/revenue share
in the project and it is only a notional promoter shown in the project
registration on MahaRERA website by virtue of the application made by the
respondent no.1 viz. Siroya Fm Constructions Pvt. Ltd, which was the
erstwhile developer. Therefore, the society contended that it has no formal
responsibility as a promoter and therefore, should not be impleaded as a party
respondent in these complaints.

23. From the aforesaid submissions made by both the complainant allottees and
the said society, it is an admitted fact that the society is the owner of the project
land and by executing the development agreement on 29-04-2008 has assigned
the development rights in respect of the said land to the respondent no. 1
promoter viz. M/s. Siroya Fm Constructions Pvt. Ltd. By virtue of the said
development agreement, the respondent no. 1 has obtained various


Complaint No. CC006000000192987
and 02 other Complaints

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permissions from the concerned competent authority and started the
construction in this project. The respondent no. 1 has also created third party
rights in the project by selling flats in this project to the allottees including
these complainants. Further, after commencement of the RERA, it has
registered this project with the MahaRERA being an ongoing project by filing
registration application on 01-08-2017 and obtained the registration certificate
under sections 4 and 5 of the RERA. However, while registering this project
with the MahaRERA, it has shown the society as co-promoter having area
share in this project.

24. The society has mainly contended that it has neither area sharing in the project
nor is having any revenue share in the project. Hence, it is only a notional
promoter shown on the MahaRERA website. Further, as per the development
agreement executed between it and the respondent no. 1, it has no
responsibility as a promoter and therefore, it should not be impleaded as party
to these complaints.

25. In this regard, it is pertinent to peruse the order dated 14-10-2019 passed by
the Hon’ble Bombay High Court in Appeal From order (St) No. 22143 of 2019
(Goregaon Pearl CHSL vs Dr. Seema Mahadev Paryekar and Ors). In the said
order , the Hon’ble High Court has held that:-
“The provisions of RERA do not make any difference either. RERA has been
introduced to establish a regulatory authority for regulation and promotion
of the real estate sector and to ensure sales in the sector in an efficient and
transparent manner and to protect consumers of the sector. The definition
of 'promoter' in RERA, for our purposes, is on similar lines as
MOFA. Section 18 of RERA, on which strong reliance is placed by learned
Counsel for Respondent No.1, requires promoters to discharge their
obligations and provides remedies for the purchasers, without prejudice to


Complaint No. CC006000000192987
and 02 other Complaints

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the purchasers' other rights, in the event of the promoters' failure to
discharge the obligations. Section 19, which follows, entitles the allottee to
obtain possession of the fat or apartment. Any grievance of the
purchaser under RERA is redressed by the regulatory authority appointed
under it. None of these provisions either make the owner of the freehold or
leasehold interest in the land, who enters into a development agreement
with a developer (who, in turn, enters into fat purchase agreements with
third parties on the basis of such development agreement), liable for
complying with the obligations of the developer under RERA. In fact, if at
all there is any doubt in respect of the position of landowners vis-a-vis
development projects registered under RERA, particularly where such
landowners are entitled to a share in the total revenue generated from sale
of apartments, the same has now been clarified by Maharashtra Real Estate
Regulatory Authority that only such individuals/organizations would fall
within the definition of 'promoter' in RERA, on account of being
landowners, as would be specified as such at the time of on-line registration
with the Authority. It is nobody's case that the Appellant society is such
specified promoter in the on-line registration. Besides, grievance, if any, in
this behalf must be addressed to the regulatory authority thereunder, and
not to a civil court. There is, thus, no merit in any of the submissions of
learned Counsel based on RERA.”

26. From the aforesaid order passed by the Hon’ble High Court at Bombay, it is
amply clear that if any such landowner is entitled to a share in the total
revenue generated from sale of apartments it would fall within the definition
of 'promoter' in RERA. However, in this case, the complainants have
contended that the society is having area sharing in this project as its members
are entitled to get additional area in their flats in this project. In this regard,
the MahaRERA is of the view that whether the society falls within the
definition of the ‘promoter’ as defined under section 2(zk) of the RERA, is not


Complaint No. CC006000000192987
and 02 other Complaints

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the issue which the MahaRERA can deal with in the amendment application
filed by these complainants. It is ostensibly because the same is a substantive
issue which needs to be decided by the MahaRERA after granting an
opportunity to the society to prove its case in view of the aforesaid
observations made by the Hon’ble Bombay High Court in the matter of
Goregaon Pearl CHS Ltd.

27. Moreso, in this case as can be seen from the submissions made by the society,
it appears that there is cancellation deed executed between the society and the
respondent no. 1 promoter on 3-01-2022, whereby the said development
agreement dated 29-04-2008 executed between the society and the respondent
no. 1 stood cancelled. It also appears that thereafter, the society has also
appointed new promoter viz M/s. Trupti Buildcon LLP as new promoter of
this project and has also executed fresh development agreement with the new
promoter on 19-12-2023. It shows that the said cancellation deed and fresh
development agreement were done during the pendency of these complaints.

28. In addition to this, as stated hereinabove, the society has also filed online

Complaint No. CC006000000428963
before the MahaRERA on 24-01-2024
seeking revocation of this project registration granted in favour of the
respondent no. 1 (erstwhile promoter). Admittedly, these complainants are
having registered agreements for sale duly signed by the respondent no. 1 in
the year 2010 and 2011 (as mentioned in the aforesaid table at para-no. 5) and
they have also made payments towards the consideration of their respective
flats to the respondent no. 1. Hence, while considering the request made by
the society for revocation of this project the MahaRERA prima facie feels that
the rights of these complainants in this project need to be considered.
However, without granting an opportunity of hearing to the society, it would
not be possible for the MahaRERA to take appropriate decision in that regard.


Complaint No. CC006000000192987
and 02 other Complaints

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Hence, the MahaRERA prima facie feels that the society needs to be joined as
necessary party to these complaints. Needless to state here that the issue
whether the society is liable for the said allotment of the said flats done by the
respondent no. 1 to these complainants, would be decided at the time of final
decision in these complaints on merits and after granting an opportunity of
hearing to all the parties concerned.

29. In addition to this, in view of the subsequent incidence such as i) execution of
cancellation deed dated 9-01-2022 and ii) execution of fresh development
agreement dated 17-12-2023 between the society and new promoter viz. M/s.
Trupti Buildcon LLP, the MahaRERA is of the view that these complaints need
to be clubbed along with the aforesaid
Complaint No. CC006000000428963

filed by the society.

30. In view of these facts, the following order is passed:-

a. The amendment applications filed by these complainants are hereby
allowed.
b. The society viz. Mulund Navghar Yashashree CHS Ltd be joined as
party respondent no. 4 (in complaint at sr. no.1) and no. 2 (in
complaints at sr. nos. 2 and 3). The complainants are directed to take
appropriate action for joining the society as respondent to their
respective complaints.
c. The complainants are also directed to serve the copies of complaints
to the society within a period of 2 weeks from the date of this interim
order.
d. The society is directed to file its reply to the substantive issue raised
by these complainants in their respective complaints within a further
period of two weeks.


Complaint No. CC006000000192987
and 02 other Complaints

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e. The Registry of this Bench is directed to club these complaints along
with the
Complaint No. CC006000000428963
filed by the society
and list it for next hearing as per the seniority.
f. The Registry of this Bench is also directed to serve the copy of this


INTERIM ORDER

to all the parties including the society on their
registered email addresses given on record.


(Mahesh Pathak)
Member – 1/MahaRERA