BEFORE THE MAHARASHTRA REAL ESTATE
REGULATORY AUTHORITY, MUMBAI
Virtual Hearing held through video conference as
per MahaRERA Circular No.: 27/2020

Complaint No. CC006000000197443


Mrs. Kalpana Jagdish Misra & Anr. ..Complainants

Vs

Rare Townships Pvt. Ltd ..Respondent


MahaRERA Project Registration No.P51800000937


O R D E R


On Miscellaneous application of Respondent

(Date of Hearing: 07.08.2024)


Coram: Shri. Ravindra Deshpande, Hon’ble

Member 2, MahaRERA
Adv. Amit Singh for Complainant
Adv. Ali Antulay for Respondent

1. The Respondent has preferred the present Miscellaneous Application
challenging the maintainability of the captioned Complaint hereinabove:

2. It is the contention of the Respondent that the Complainant entered into
an Agreement for Sale purchasing Flat No. 1106 in the project of the
Respondent. According to the said Agreement for Sale 24. 09. 2015, the date
of completion of the said Project was 31. 12. 2018.

3. Clause 58 of the said Agreement stipulates that in case of disputes, the
same would be settled through mediation failing which it would be settled
by arbitration.

4. When the said Agreement was executed, the Real Estate (Regulation and
Development) Act 2016 ("said Act") had not come into force. A bare perusal
of the aforesaid clause shows that the parties had agreed to resolve their
disputes through arbitration.

5. Respondent further submits that the Hon'ble Chairperson has taken a
similar view in orders in
Complaint No. CC006000000197166
(Madhuri
Rungta & Anr. V/s Rare Townships Pvt. Ltd.) as well as
Complaint No.
CC006000000194835
(Ayyaz Khan & Anr. Vs. Era Realtors Pvt. Ltd. & Ors.)

6. The Respondent prayed for the dismissal of the present complaint as it is
premature and bound by the arbitration clause.

7. The Complainant has replied the application and opposed the same.

8. It is the contentions of the Complainant that the present application has
been filed by the respondent only to harass the complainant further and to
compel him to surrender before the illegal demands of the respondent. The
complainant states that the respondent has filled the present application
with an ulterior motive to misguide this Hon'ble Forum and to obtain
orders by falsely claiming alternate adjudication.

9. It is the contention of the Complainant that the present application is filed
after a lapse of time the respondent was served with the notice/summons
in the year 2021 and the present application has been filed by the
respondent after about 3 years. The complainant will suffer serious
prejudice, irreparable harm and loss if the application is allowed.

10. . That the respondent has mischievously contended that the jurisdiction of
this forum is ousted merely because of the fact in the agreement
Arbitration clause is mentioned, this fact in itself nowhere leads to the
conclusion that only mode of adjudication left for any unresolved issue is

only via Arbitration. That such misleading interpretation goes directly
against sub-clause 3.1, 39, 52.4 of the Agreement. From the wordings of
clause no.58, it can be easily deciphered that the same is and one-sided
clause that tries to facilitate unfair advantage to the respondent and such
lopsided clauses are very much opposed the public policy. That
complainant is relying on the citation of Rajasthan RERA, at Jaipur in
Harsha Chanana V/S Sepset Real Estate Ltd-

“That it is expressly agreed between the parties all subsequent enactment are
binding on them and when the respondent choses to seek extension (benefits) via
RERA then it has no voice to challenge the jurisdiction of this Hon’ble forum”.

11. That it will be wrong to accept the proposition that Arbitration ousts every
other law and Arbitration is the only course left to the parties. It is therefore
prayed that this Hon'ble forum may be pleased to dismiss the present
application with exemplary cost.

12. Heard advocates of both. I have stated above the brief facts of the
miscellaneous application of the Respondent and the defense of the
Complainant in its reply. In my opinion, the jurisdiction of RERA where
the agreement for sale contains a clause of arbitration has been clarified by
the Hon’ble Bombay High in Appeal No. 434 of 2023 M/s. Rashmi
Builders Pvt. Ltd. V/s Mr. Rahul Rajendrakumar Pagariya & Ors.

13. In the said order of the Hon’ble Bombay High in Para 54 the following has
been stated:
“ It is settled legal position when arbitration cannot enforce and apply such rights
or the awards cannot be implemented and enforced in the manner as provided and
mandated by law, the right of election to choose arbitration in preference to the
courts or public forum is either completely denied or could be curtailed as per the
settled legal position, it is necessary to examine if the statue creates the special
rights or liabilities and provides for the determination if each right and liabilities
by the specified court of public forum. So, constituted, and whether the remedies
beyond the ordinary domain of the civil courts are prescribed and when the answer
is affirmative, arbitration in the absence of special reason is contradicted and the
dispute is non-arbitrable. The provisions of RERA has set out herein above and

analysis of the same clearly shows that special rights are created and enforcement
of the same special forum is also established for ensuring enforcement of this rights
and specific provisions are made for executions of the orders passed by the special
forums that are the Authority and Appellate Tribunal, thus the dispute covered
under the RERA are non-arbitrable”.

14. Thus, the dispute between an allottee and a promoter covered by RERA is
non-arbitrable. The Jurisdiction of the RERA is not ousted even if the
Agreement between the allottee and the promoter contains an arbitration
clause.

15. Further, as per section 89 of the RERA, it has an overriding effect on
anything inconsistent with the Act and MahaRERA has time and again
passed the order stating that RERA supersedes arbitration.

16. Section 89 of the RERA
“The provisions of this Act shall have effect, notwithstanding anything
inconsistent therewith contained in any other law for the time being in
force.”

17. Further on the issue of prematurity raised by the Respondent prima facie
it can be seen that the Complaint was filed on 24.12.2021 and the
possession date as per the agreement was 31.12.2018. Hence, it can be
concluded that the complaint is not premature as it is necessary to consider
the possession date mentioned in the agreement for sale.

18. In the above reported case of M/s. Rashmi Builders Pvt. Ltd. V/s Mr.
Rahul Rajendrakumar Pagariya & Ors the Hon’ble High Court has
observed that the dispute between the individual allottee and the
promoter or the dispute between the association of the allottees and the
promoter covered under RERA is non-arbitrable in nature. The jurisdiction
of RERA under section 20 is not ousted, even if the agreement between the
promoter and the allottee contains an arbitration clause. In lieu of the
above observation, in my opinion, the present miscellaneous application
deserves to be rejected.

19. Hence, I pass the following order.

ORDER

1. The application of the Respondent is dismissed.

2. No order as to cost.


(Ravindra Deshpande)
Member-2, MahaRERA.

Date: 07.01.2025


RAVINDRA
PADMAKARAO
DESHPANDE
Digitally signed by
RAVINDRA PADMAKARAO
DESHPANDE
Date: 2025.01.07 17:25:44
+05'30'