Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY
AUTHORITY, MUMBAI

1. Complaint No. CC006000000197897

Antara Ashra


... Complainant/s

Versus

Sandeep Runwal


... Respondent/s

Along with

2. Complaint No. CC006000000198391

The Reserve By Runwal CHS Ltd

... Complainant/s

Versus

Runwal Developers Pvt Ltd


... Respondent/s

Along with

3. Complaint No. CC006000000396389

Runwal Developers Pvt Ltd


... Complainant/s

Versus

Antara Gautam Ashra


... Respondent/s


MahaRERA Project Registration No. P51900000383


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

The complainant-allottees appeared in person in the complaint at Sr. No. 1 and
the Respondent in the complaint at Sr. no. 3.
Ld. Adv. Abir Patel appeared for the promoter – For the respondent in the
complaint at Sr no. 1 and the complainant in the complaint at Sr. No. 3.
Ld. Adv. Nimay Dave appeared for the complainant-society at Sr no. 2.


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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Ld. Adv. Abir Patel appeared for the respondent at Sr. no. 2


INTERIM ORDER


(Tuesday, 30th April 2024)

(Through Video Conferencing)


1. The complaints at sr nos. 1 & 3 are the cross-complaints filed by the allottees
and the promoter. The allottees and the complainants in the complaint at Sr.
No. 1 have filed the complaint bearing no. CC006000000197897 on 05-08-2021
mainly seeking directions from the MahaRERA to the respondent-promoter
to transfer the balance to the society, to submit the accounts to ensure a
complete handover, no amount from complainant’s advance maintenance to
be adjusted for any other resident’s dues and the complete balance to be
transferred to the society so they can avail credit for our maintenance paid
and no back dated increase of maintenance from Rs 15 to Rs.24 should be
permitted as per the provisions of the Real Estate (Regulation &
Development) Act, 2016 (hereinafter referred to as ‘RERA’) in respect of the
flat bearing no. 2102 (“said Flat”), admeasuring 1290.28 Square Feet (carpet
area) (“the said flat”), in the respondent-promoter’s registered project known
as “RUNWAL RESERVE” bearing the MahaRERA registration No.
P51900000383 (“said project”) situated at Malad, Mumbai (For the sake
brevity these complainant be called and referred to hereinafter as the
“allottee”).

2. The promoter and the complainant in the complaint at Sr. No. 3 have filed
another complaint bearing no. CC006000000396389 on 25-09-2023 and sought


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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directions to the respondents from MahaRERA to pay outstanding amount
towards maintenance along with GST and interest for delay. (For the sake of
brevity this respondent be called and referred to hereinafter as the ‘promoter’).

3. The complaint at sr no. 2 is the complaint filed by the society against the
promoter. The complaint-society at sr. no. 2 has filed the complaint bearing no.
CC006000000198391 on 30-09-2021 mainly seeking directions from MahaRERA
to the respondent-promoter to pay damages for incomplete work under RERA.
(For the sake of brevity this complainant be called and referred to hereinafter
as the ‘society’ and respondent be called and referred to hereinafter as the
‘promoter’).

4. These complaints were clubbed together and the same were heard on several
occasions and finally on 20-12-2023 by the MahaRERA as per the Standard
Operating Procedure dated 12-06-2020 issued by the MahaRERA for hearing
complaints through Video Conferencing. Both the parties have been issued
prior intimation of this hearing and they were also informed to submit their
written submissions if any. Accordingly, both parties appeared for the said
hearing and made their respective submissions. The MahaRERA heard the
submissions of both parties and also perused the available record.

5. After hearing the arguments of both parties, the following Roznama was
recorded in these complaints–
“Both the parties are present. The matters were kept today for the arguments
on the issue of amendments prayed for by the complainant in sr. no. 25 and the
issue of maintainability raised by the respondent. Both the parties have filed
their replies and rejoinders to the said 2 issues. On the issue of amendment,


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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the said complainant has contended that the amendments should be liberally
allowed as per the case law and in fact any prayers which are mentioned in
the amendments are i) - updating the amounts with respect to the
complainant’s claim are responsibility of the respondent and ii) they are as
per the provisions of section 11 (f) and 11 (g) of the RERA. If at all, these
amendments are sought because the society itself has filed this complaint at
the initial stage and subsequently an advocate / counsel was engaged by the
society, so the prayers are in fact an expansion of general theme of the prayers
raised earlier of praying for the incomplete work, executing the conveyance of
the said property, for delivering audited accounts and true and correct proper
audited accounts to reimburse the advance maintenance, to carry out
rectification and repair work etc., to pay for the same which has been incurred
by the society and also for payment of other dues during the construction by
the respondent - developer. The respondent - developer on the issue of
amendment has contended that such amendment should not be allowed as
they change the very nature of the prayers in the complaint and the nature of
the complaint itself. Moreover the said prayers raised by the complainant are
only to avoid the issue of seniority and in fact, new complaints should be filed
for the amendments. The amendment as per the Regulation 42 of the
MahaRERA (General) Regulation , 2017 of the RERA would only deal with
any defects / errors or any question or issue which arises during the hearings
of the complaint. Therefore, the said amendment does not fall within the said
Regulation 42 which has been issued by the MahaRERA itself. However, the
complainant has refuted this contention of the respondent and has pointed out
Section 35 to 38 of the RERA which gives vide powers to the MahaRERA as
well to regulate its own procedure. Therefore, the said complainant has prayed
for allowing the amendments. On the issue of maintainability of this
complaint (sr no. 25), the respondent has questioned the Sections of RERA


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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under which the said complaint has been filed and, also the fact that the by
laws of the society itself mentions that such disputes as raised by the
complainant would be raised before the appropriate civil court of law and not
before the RERA. Therefore, as there is no violation of RERA pointed out by
the complainant and under section 31 this complaint is not maintainable.
Further, the respondent has also pointed out that on the issue of
maintainability, its own complaint against the allottees is maintainable
because of section 19 (6) and 19 (7) of the RERA, which specifies duties of the
allottees. The complainant has refuted these contentions of the respondent -
promoter on the grounds on maintainability of this complaint claiming that
as per section 11 (f) and 11(g) of the RERA and as per the other provisions of
the RERA, the prayers which have been raised by the complainant are squarely
maintainable before the RERA and not before the Civil Court of law and to
save the efforts, time of the Authority, the complainant has also amended the
prayers. The complainant at Sr No. 41 (CC006000000396389) is in fact a cross
complaint filed by the promoter against the respondent - allottee who is the
complainant in Sr. No. 24 (CC006000000197897). The complainant at sr. no. 25
has reiterated that the by-laws would not prevent the filing of the complaint/s
before the MahaRERA. In view of the above, both the sides may file their
written arguments on the issue of amendment as well as maintainability of
this complaint along with necessary case law and documents within a period
of 2 weeks i.e. by 03-01-2024. Accordingly, these matters are reserved for orders
suitably after 03-01-2024 first on the issue of amendment and second on the
issue of maintainability of the complaint based on the arguments of both the
sides as well as reply, rejoinder, written arguments and documents uploaded
in the complaint at sr. no. 25.”

6. Pursuant to the aforesaid directions issued by the MahaRERA, the society in


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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complaint at sr. no. 2 has uploaded its written submission on records of
MahaRERA on 12-01-2024. The promoter in complaint at sr. no. 2 has also
uploaded its written submission on records of MahaRERA on 17-02-2024. Both
the written submissions are filed on record beyond the stipulated time,
however, the same are taken on record in compliance of the principles of
natural justice. The MahaRERA has perused the available record.

Details of Complaint at sr. no. 1 filed by the Allottees:-

7. It is the case of allottees that she has booked the said flat in the said project
vide agreement for sale dated 01-07-2019. The promoter has collected
Rs.4,65,501/- as 24 months advance maintenance charges from the date of the
agreement. As per the agreement, the promoter agreed to pay the balance
advance maintenance to the society at the time of handover. The society has
been formed on 31-03-2020. However, the promoter failed to handover the
accounts and advance maintenance were not transferred to the society. As per
the agreement, the members of the society are not liable to pay anything till
01-08-2021. Further, the society has been raising invoices for maintenance on
the said flat demanding dues to be paid. She is compelled to pay maintenance
twice over a. First time of advance maintenance collected at Rs15/sq. ft by the
promoter up to 30th Sept 2021. b. Second time for the advance maintenance
demanded by the newly formed society for the period from 1st April onwards.
The society is unwilling to give her ‘credit’ citing that the promoter will need
to make a transfer to the society account. In the above-mentioned background,
the allottee has filed this complaint for the reliefs mentioned above.

8. The promoter on the other hand has refuted the contentions of the allottee by
filing its reply on 01-05-2023 on the record of the MahaRERA and also filed a


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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cross complaint which reflects the same contentions as mentioned in its reply
to the allottee. The promoter stated that, as per clause 19.1 of the said
agreement, the allottee had agreed to bear and pay their proportionate share
of outgoings in respect of their flats for maintenance of the said project. At the
time of execution of the said agreement, since there was no certainty as to what
the exact amount of outgoings would be, the parties had agreed to a
‘provisional’ maintenance amount payable in advance for 24 months, which
was provisionally quantified at Rs.15 per square feet. Further, the allottee was
aware that the share of outgoings being collected was provisional and the same
would eventually be payable at actuals, in proportion to the amount spent by
the promoter. As per clauses 20(b) and 20(f) of the said agreement, the allottee
had specifically agreed to bear and pay any additional amount towards
increase in the maintenance outgoings. The possession of the said flat was
offered to the allottee under possession letter dated 29-07-2019 and that she is
in use and occupation of the said flat. As per clause 4 of the above-stated letter,
the allottee agreed and confirmed to pay monthly outgoings and property
taxes with effect from 01-08-2019 being the commencement date from when
the promoter had started levying maintenance charges on the allottee. The
promoter began utilising the sum of Rs. 4,64,501/- collected from the allottee
at the time of possession as provisional advance maintenance for 24 months.
The provisional maintenance charges collected for the 24-months period in
advance was not sufficient for the entire 24-months period, therefore it was
deemed provisional in the first place, and given the nature of the project and
the quality and magnitude of amenities and services being provided since the
said project was a premium one and there was also the Covid 19 pandemic to
deal with in between which led to soaring of costs. The society was formed on
11-01-2021 and the management of the affairs of the said project was handed


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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over to the society on 31-03-2021. The audited accounts statement dated 21-09-
2021 was prepared by the auditors whereby the amounts spent / incurred by
the promoter from inception till date of hand over to the society i.e. 31-03- 2021
were audited. Further the promoter stated that the sum of Rs.1,69,07,824/- was
borne and paid by it out of its own pocket therefore the promoter was entitled
to the reimbursement of the same. Thus, the allottee is a defaulter as per section
19 (6) of the RERA. Therefore, the promoter submitted that the allottee be
directed to pay the outstanding maintenance along with interest and the
complaint by the allottee be dismissed with cost.

9. Thereafter, the allottee has uploaded rejoinder on records of the MahaRERA
on 03-05-2023 which is mere repetition of the facts mentioned in her complaint.

Details of the complaint at sr no. 2 filed by the Society:-

10. It is a case of the society that it being a Co-operative Housing Society Ltd., it’s
members are flat purchasers/allottees in the promoter’s present project and it
is formed under the provisions of Maharashtra Co-operative Societies Act,

1960. The promoter was supposed to complete the project by 31-12-2018,
however, it failed to do so. It has not applied for further extension of the
project. The promoter is liable to pay all outgoings until it transfers the
physical possession however, it failed to pay such outgoings along with
outgoings of unsold flats and has also failed to handover books of accounts,
records and documents to the society. The promoter handed over the
responsibility to manage the affairs of the project to the society on 31st March

2021. However, it did not provide any corpus, savings from 24 months
advance maintenance paid by the members or balance lying to the credit from
the members who had not completed 24 months from date of possession to


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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31st March 2021 to the society. There are incomplete work of amenities by the
respondent which in total amounts to Rs. 5.57 crores. The parking plan
uploaded on the RERA website is incorrect, it has been modified and the
respondent has failed to upload the revised plans. Moreover, till date the
parking layout of the building has not been shared presumably as the
promoter is still allotting some parking spaces and the promoter has allotted 3
parking spaces to flat no 2901 in September 2021 in contravention of the Bye
Laws of the society. The promoter has failed to provide the details of car
parkings allotted to flat purchasers and those available for guest parking. It
has failed to intimate the members of increase in maintenance charges and it
has further failed to provide satisfactory accounts towards maintenance
charges so collected by them. It has collected estimated property tax of Rs 1.2
crores from allottees. However, it has failed to deposit the property tax with
the Municipal Corporation and has failed to provide any receipt of such
amount being deposited. Being aggrieved by this, the society has filed this
complaint and sought reliefs of Rs. 5.57 Cr towards incomplete work and to
put the corpus in the society account, Rs 18 lacs towards unpaid maintenance
charges, unknown amounts of balance advance maintenance collected etc. In
addition, to give indemnity that there are no outstanding dues to BMC from
promoter on account of property tax for common areas and for flats
constructed in second phase from 25th Floor upwards.

11. The society has uploaded an amendment application on the record of the
MahaRERA on 15-12-2020, wherein it has stated that the earlier complaint has
been filed without proper guidance. Therefore, the society wishes to amend
its complaint. The society wished to add directors of the respondent viz.
Pallav Matkari, Sanjay Daga and Kishor Jain as respondent nos. 2,3 and 4.


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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Further, the society has inserted detailed facts in respect of its grievances. The
society stated that the promoter failed to hand over possession of some flats
within the agreed timeframe, causing a delay in the possession of the flats. The
society alleged that the promoter did not fulfil its obligations as per the
agreement for sale. It failed to provide the statement of accounts, execute a
deed of conveyance, and handover all the necessary documents to the society.
The society further claimed that the promoter mis-utilized the maintenance
funds collected from the flat purchasers. Moreover, there were discrepancies
in the statement of accounts provided by the promoters and that the promoters
diverted the funds for other purposes. The society stated that there are several
defects in the construction of the project, such as leakages, seepages, and
collapse of installations. It also claimed that there is incomplete work that
needs to be carried out by the promoter. The society alleged that the promoter
has not paid the property taxes and other statutory dues to the concerned
authorities, which may lead to legal consequences. The society accused the
promoter of fabricating accounts and submitting incomplete and incorrect
information regarding expenses incurred. The society claimed that the
promoter has not refunded the advance maintenance charges collected from
the flat purchasers, even for those who have not completed 24 months from
the date of possession. The society further stated that the promoter has not
provided warranty papers and guarantees for various aspects of the project,
such as waterproofing and installation of machines. The society alleged that
there have been frequent breakdowns of lifts, posing a risk to the residents.
They also claimed that the promoter has unlawfully allotted car parking spaces
without obtaining the necessary NOC from the society. The society accused
the promoter of violating the provisions of the Real Estate (Regulation and
Development) Act, 2016 (RERA) and engaging in unfair trade practices.


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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12. Thus, the society sought various reliefs, including execution of conveyance,
submission of audited accounts, reimbursement of expenses, rectification of
defects, payment of outstanding dues, and penalties against the respondents.
The detailed prayers mentioned by the society in the complaint are as follows:
a. Rs.5.57 cr towards incomplete work and to put a corpus in the society PLUS
Rs18 lacs towards unpaid maintenance charges PLUS unknown amounts of
balance maintenance collected. In addition, indemnity that there are no
outstanding dues to BMC from Runwal on account of property tax for
common areas and for flats constructed in second phase from 25th Floor
upwards.
b. That this Hon’ble Authority be pleased to pass an Order directing the
Respondent No.1 to execute and admit execution of the Conveyance for
transfer of the said Property in favour of the Complainant Society;
c. That this Hon’ble Authority be pleased to pass an Order directing the
Respondent Nos.1 to 4 to handover all documents, permissions, plans,
receipts, vouchers, accounts, contracts, warranty certificates and all
documents that are in their possession to the Complainant as required under
the Act, including but not limited to documents listed at Exhibit A;
d. That this Hon’ble Authority be pleased to pass an Order directing
Respondent Nos.1 to 4 to submit true, correct and proper audited accounts
along with supporting documentary evidence in respect of the advance
maintenance charges collected by the Respondents from the members of the
Complainant.
e. That this Hon’ble Authority be pleased to pass an Order directing the
Respondent Nos.1 to 4 to reimburse to the Complainant such amounts being
atleast a sum of Rs.37,46,166/- (Rupees Thirty Seven Lakhs Forty Six
Thousand One Hundred and Sixty Six Only) together with interests thereon or
such other amounts (which shall be ascertained only upon Respondents
providing true and proper accounts) as may remain deposited with the
Respondents towards advance maintenance charges.
f. That this Hon’ble Authority be pleased to pass an order directing the
Respondent Nos.1 to 4 to carry out rectification / repair work / cure the defects


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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in its work in the Project as per the details mentioned in the list at Exhibit D
hereto
g. That this Hon’ble Authority be pleased to pass an order directing the
Respondent No.1 to withdraw and recall the Invoices raised upon the members
of the Complainant Society demanding payment of additional sums towards
maintenance charges for period up to 31st March, 2021;
h. That this Hon’ble Authority be pleased to pass an Order directing the
Respondent Nos.1 to 4, jointly and//or severally, to pay the outstanding
property tax payable for the period during which the Project was under
construction being a principal amount of Rs.11,23,504/- (Rupees Eleven Lakhs
Twenty Three Five Hundred and Four Only) along with interests, penalties,
etc to the appropriate authority;
i. That this Hon’ble Authority be pleased to pass an order directing the
Respondent Nos.1 to 4, jointly and/or severally, to reimburse to the
Complainant an aggregate sum of Rs.1,30,50,000/- (Rupees One Crore Thirty
Lakhs and Fifty Thousand Only) comprising of a sum of Rs.1,50,000/- per
member that Respondent had taken from each of 87 members towards property
taxes during the construction period;
j. That this Hon’ble Authority be pleased to pass an order directing the
Respondent Nos.1 to 4, jointly and/or severally, to reimburse to the
Complainant a sum of Rs.85,00,000/- (Rupees Eighty Five Lakhs Only)
together with interest towards the expenses incurred by the Complainant
towards rectification of the defective handover and carrying out the repair
work;
k. That this Hon’ble Authority be pleased to pass an order directing the
Respondent Nos.1 to 4, jointly and/or severally, to reimburse to the
Complainant an amount of Rs.32,91,175/- (Rupees Thirty Two Lakhs Ninety
OneThousand One Hundred and Seventy Five Only) being the expenditure
incurred by Complainant towards waterproofing of the basement Nos.1 and
2, podium and ground floor and carrying out necessary work in the incomplete
ventilation system;
l. That this Hon’ble Authority be pleased to pass an order directing the
Respondent Nos.1 to 4, jointly and/or severally, to pay to the Complainant a
sum of Rs.35,00,000/- (Rupees Thirty Five Lakhs Only) for carrying out the
repair work of the defective designs of the service floor.


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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m. Strictly in the alternate to prayer (g), the Respondent Nos.1 to 4 be directed
to themselves carry out the repair work in the defective designs of the service
floor.
n. That this Hon’ble Authority be pleased to pass an order directing the
Respondent Nos.1 to 4, jointly and/or severally, to pay to the Complainant
amounts together with interest thereon that have wrongly shown by
Respondent No.1 as expenses incurred in the said Fabricated Accounts
o. That this Hon’ble Authority be pleased to pass an order directing
Respondent Nos.1 to 4, jointly and/or severally, to settle all disputes with
NINA Percepts as per their letter dated 31st May, 2022 and obtain a No Dues
Letter from NINA Percepts and confirmation that their Warranty for
Waterproofing dated 14th November, 2019 is valid, subsisting and binding
upon NINA Percepts;
p. That this Hon’ble Authority be pleased to pass an Order restraining
Respondent No.1 from selling / allotting and/or otherwise in any manner
dealing with any car parking spaces to any member of the Complainant or to
any third party;
q. For such compensation as deemed fit by the Hon’ble Authority to be paid by
the Respondent Nos.1 to 4, jointly and/or severally, to the Complainant for
the inconvenience, mental harassment, torture and hardship faced by the
Complainants due to the unlawful and arbitrary acts of the Respondents;
r. For initiating appropriate action against Respondent Nos.1 to 4 for
violation of the provisions of the said Act, levying such penalty and taking
such action including debarring the Respondent Nos.1 to 4, directly and/or
indirectly, solely or in partnership or joint venture, from carrying on,
continuing or undertaking any New Projects for such time as this Hon’ble
Authority may deem fit.
s. For such other reliefs as this Hon’ble Authority may deem fit from time to
time;
t. For costs of the present Complaint and other legal costs expanded by the
Complainant.

13. The promoter has uploaded its reply to the said amendment application filed
by the society on records of MahaRERA on 09-02-2023 stating that the said


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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Page 14 of 25
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amendment application sought to alter and amend the entire complaint which goes
beyond the original case filed by the society. The promoter submitted that on
perusal of the schedule it can be noted that various new issues are being raked up
and new reliefs are sought and thus a completely new complaint is being filed in
place of the original one. The said amendment application has neither been signed
by the authorised person nor any supporting affidavit has been filed by the society.
It further stated that the society seeking liberty to add its directors cannot be
allowed as it is in contravention of section 31 of the RERA. The promoter is a
separate legal entity and its office bearers cannot be made parties. Therefore, the
promoter alleged that the society has misused the amendment provision. The
promoter has further denied the contention of the society in toto.

14. The promoter uploaded dismissal of application on records of the
MahaRERA on 07-04-2023. The promoter stated that the society failed to show any
violations as per the provisions of the RERA by the promoter. The society shall be
governed by the bye laws of the cooperative housing bye-law and bye-law no 173
clearly states that the disputes like, a. noncompliance of the terms and conditions
of the agreement by and between the builder/developer, (specific performance), ii.
Substandard constructions, iii. Conveyance deed in favour of the society, iv.
Escalation of construction cost, v. Any other, like, disputes which fall within
jurisdiction of the civil court which shall be decided by a civil court. The same has
been adopted by the society in its Bye law 174 (C). The society is neither an allottee
nor a promoter nor a real estate agent therefore the present complaint is not liable
for any relief. Further, the promoter stated that the society has also filed a suit no.
6502 of 2023 before the Hon’ble Bombay High Court seeking compensation of Rs.
1,50,00,000/- and the issues raised therein largely overlap the issues raised in this


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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complaint. Hence, the complaint filed by the society is liable to be dismissed being
not maintainable.

15. The society has uploaded its reply on the dismissal application on record of
the MahaRERA on 15-05-2023, stating that the said dismissal application was an
afterthought as the promoter never raised any objection on maintainability before.
The promoter is raising frivolous complaints /FIRs against the society and is trying
to exhaust the society of their financial resources. The society further denied the
contentions in toto. In respect of the pending suit before the Hon’ble High Court,
the society submitted that the cause of action is different in the said suit and the
reliefs in the said suit is limited to seeking injunction against the promoter from
filing any illegal/false frivolous complaints and FIRs.

16. The promoter has uploaded its rejoinder on records of MahaRERA on 22-06-
2023 reiterating the contentions mentioned in its reply. Further it stated that, the
society has encroached and committed criminal trespass upon parking spaces
attached to unsold units and has vandalised the signboard and has done multiple
criminal activities. It further stated that the society has already admitted that all
issues raised in its complaint have arisen from the individual agreements entered
into by the members. The society is not a party to the agreement and therefore there
is no privity to enforce the agreement or file proceedings. Therefore, the society has
no locus standi to file this complaint.

17. The society has uploaded affidavit and rejoinder to the reply of the promoter
on record of the MahaRERA on 04-09-2023 reiterating the contentions mentioned
in the amendment application. In addition to that, it stated that the interim prayers
and amendment application has been made as per the RERA and the provisions of
Civil Code of Procedure, 1908 do not apply to the RERA.


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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18. The society has uploaded its written submission on records of MahaRERA
on 12-01-2024 wherein the society stated that the bye law (173) on which the
promoter is relying upon clearly stated that the members may approach civil court
in the disputed matters, however the word ‘may’ gives liberty to the member to
choose which forum they want to approach. Further, the society submitted in detail
how the promoter has violated provisions of RERA. Other contentions of the said
written submission are mere repetition of what was stated in its amendment
application.

19. The promoter has uploaded their written submission on records of
MahaRERA on 17-02-2024. It stated that, the present complaint filed by the society
is not maintainable as some issues are arising out of individual agreements for sale
and the society has no privity of contract with the promoter, therefore, it cannot
make any claims. Issues in rem which are applicable to common issues are not even
covered under any provisions of RERA. No provisions of RERA have been violated.
The promoter in support of its claim relied upon the order passed in the case of
Sandip D Gorad & Ors. Vs. Pristine Properties. The promoter further submitted that
it has already initiated the process of transfer of title and shared the draft of
conveyance. Therefore, the present complaint is liable to be dismissed.

20. The MahaRERA has examined the rival submissions made by all parties
herein viz the allottee, society and the promoter and also perused the available
record.

21. The allottee in complaint at sr. no. 1 has filed the said complaint mainly
seeking following reliefs:-


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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“1. Developer to transfer our balance to the earliest to the society. 2. Developer to submit the accounts
to ensure a complete handover is taken place. 3. No amount from our advance maintenance to be
adjusted for any other resident’s dues and the complete balance to be transferred to the society so we
can avail credit for our maintenance paid. 4. No back dated increase of maintenance from Rs 15 to 24rs
should be permitted as neither were we informed nor was our permission taken. It is also illogical to
accept that during ‘Covid’ lockdowns the cost to operate the building and amenities has gone up by 60%
for such a charge to be believed.”

22. The society in complaint at sr. no. 2 has filed the said complaint mainly seeking following directions to
the promoter:-
“Rs 5.57 Cr towards incomplete work and to put a corpus in the society PLUS Rs 18 lacs
towards unpaid maintenance charges PLUS unknown amounts of balance advance
maintenance collected. In addition , indemnity that there are no outstanding dues to BMC
from Runwal on account of property tax for common areas and for flats constructed in
second phase from 25th Floor upwards.

23. The promoter has filed the complaint at sr. no. 3 which is cross a complaint to
the complaint filed by the allottee (sr. no. 1). In the said complaint, the promoter
is seeking following directions to the allottee:-
“i. This Hon’ble Authority be pleased to direct the Respondent Nos. 1 to 4 to pay the Complainant
outstanding amount of Rs.43,680.93/- (Inclusive of GST) towards maintenance charges with respect
of the Flat No. 2102, Runwal Reserve, having MahaRERA Registration No. P51900000383 with
interest calculated at the prevailing rate of the State Bank of India Highest Marginal Cost of Lending
Rate plus 2% from the due date i.e. from 19th May, 2022 till realization of the above said amount. ii.
This Hon’ble Authority be pleased to award Costs for the complaint; and iii. For such further and other
reliefs as this Hon’ble Authority may deem fit.”

24. All these 3 complaints were clubbed together along with other similarly placed
complaints filed by the promoter against the other allottees of this project. In the
said complaints also the promoter is seeking similar directions to the said
allottees (in other complaints). In the said complaints, after hearing the
arguments of the parties concerned, the following roznama was recorded on 20-
12-2023:-


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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“The complainant - promoter is present. The respondents - allottees are absent except in Sr. No. 28
and 30. As recorded in the previous Roznamas dated 22-06-2023 and 09-09-2023, these complaints
were filed by the promoter against the allottees on identical issues raised by the society in its

complaint no.CC006000000198391
filed before the MahaRERA. However, the issue of maintainability
as well as amendments in the
complaint no. CC006000000198391
filed by the society are yet to be
decided. Since these complaints are related to the said complaint filed by the society, the said decision
in the society’s complaint would be applicable in these complaints as well. Hence, these complaints
would be heard thereafter.”

25. On bare perusal of the aforesaid roznama recorded by the MahaRERA, as far as
the individual complaints filed by the promoter against the allottees under
section 19(6) and 19(7) of the RERA (as per the promoter), vide the aforesaid
roznama dated 20-12-2023(as well as the roznama recorded in these complaint’s
on 14-09-2023), the MahaRERA has clarified that the main issue in these
complaints is about the enhancement of the past maintenance charges as well as
handing over of the accounts to the society. Meaning thereby the decision which
would be taken by the MahaRERA in the aforesaid complaint filed by the society
has bearing in the said complaints filed by the promoter against the allottees.
Hence, the MahaRERA has already directed that the hearing on the said
complaints would be taken up only after the decisions in the complaint filed by
the society.

26. Be that as it may, in the present case, as far as the complaint filed by the allottee
at sr. no. 1 is concerned, the MahaRERA has prima facie noticed that the said
allottee is also raising similar issue as raised by the society in its complaint at sr.
no. 2. Moreso, the said allottee by filing such individual complaint is raising
common sort of reliefs, which the society should raise and in fact, in complaint
at sr. no. 2, the society is also raising same sort of reliefs. Meaning thereby, the


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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reliefs sought by the society covers the reliefs sought by the allottee in her
complaint.

27. Furthermore, as stated hereinabove, the promoter has also filed cross complaint
at sr. no. 3 against the allottee at sr. no. 1. Further, as recorded in the other 14
complaints filed by the promoter, the MahaRERA has already deferred the
hearing on the said complaints, after the decision is taken on the complaint filed
by the society.

28. In view of these facts, and in the fitness of justice, the MahaRERA prima facie
feels it just and proper to defer the hearing as well as the decision on the
complaint filed by the allottee and the promoter till the decision on the
complaint filed by the society is taken by the MahaRERA.

29. Hence, now in complaint at sr. no. 2 filed by the society, as recorded in the
roznama dated 20-12-2023, the MahaRERA needs to decide the two issues in this
order viz. i) amendment application filed by the society on record of
MahaRERA on 15-12-2020 and ii) the issue of maintainability raised by the
promoter in respect of the complaint filed by the society vide a dismissal
application dated 7-04-2023.

30. The MahaRERA has perused the submissions made by the society and the
promoter on both the issues as stated above.

31. As far as the issue at (ii) raised by the promoter about the maintainability of the
complaint filed by the society, the promoter has mainly contended that the
society shall be governed by the bye laws of the cooperative housing and bye
law no 173 clearly states that the disputes like, a. noncompliance of the terms


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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and conditions of the agreement by and between the promoter, (specific
performance), quality of the constructions, execution of conveyance deed in
favour of the society, escalation of construction cost, etc which fall within
jurisdiction of the civil court and hence the same shall be decided by the
appropriate civil court of law. The society has adopted the said Bye law 174 (C).
Hence, the society needs to file a suit before the Civil Court and hence the
present complaint is not maintainable under the provisions of the RERA.
Further, the society is neither an allottee nor a promoter nor a real estate agent
therefore the present complaint is not liable for any relief as there is no violation
of any of the provisions of the RERA by the promoter. Also, the society has
already filed a Suit No. 6502 of 2023 before the Hon’ble Bombay High Court
seeking compensation of Rs. 1,50,00,000/-. Hence, the issues raised in the said
Suit largely overlap the issues raised by the society in this complaint. Hence, it
has prayed for dismissal of the complaint filed by the society.

32. The society in reply to the said maintainability issue raised by the promoter has
mainly contended that the issue pending before the Hon’ble High Court at
Bombay is different from the issue raised by it in this complaint as it has filed
this complaint seeking reliefs under section 11(f) and (g) of the RERA. Further,
the bye laws of the society cannot prevent it from filing this complaint before
the MahaRERA under section 31 of the RERA. Hence, it has prayed for dismissal
of the said maintainability application filed by the promoter.

33. As far as the issue of maintainability raised by the promoter, the MahaRERA has
prima facie noticed that the same is raised by the promoter at a belated stage
and not the initial stage of hearing. Meaning thereby, the promoter has not
raised the said issue at a preliminary stage when the said complaint was heard


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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by the MahaRERA for the first time, however, the same is filed after more than
3 years from the date of filing of the said complaint by the society. Moreso, the
society has claimed reliefs under section 11(f) and (g) of the RERA. Hence,
without granting fair opportunity of hearing to the society on the said
provisions of the RERA, the MahaRERA cannot brush aside the said complaint
filed by the society at such a preliminary stage. Furthermore, the promoter has
failed to show any supportive document on record of MahaRERA to show that
the issues involved in the pending Suit No. 6502 of 2023 and the present
complaint are same. Moreso, the said suit is filed subsequent to the filing of this
compliant before the MahaRERA, hence, the MahaRERA prima facie feels that
the said compliant is maintainable under the provisions of the RERA and hence
the same needs to be decided on merits. In view of these facts, the MahaRERA
does not find any merits in the dismissal application filed the promoter and
hence the same stands rejected. Moreover, from a reading of the said buy law
no. 173 relied upon by the promoter, it appears that it is related and applicable
solely to the members/complaints.

34. As far as the issue at (i) about the amendment application filed by the society,
the MahaRERA has noticed that the society has mainly raised an issue that the
said complaint was filed in its individual capacity and without taking proper
advice from the advocate. It has also contended that the said amendment is
nothing but expansion of the main prayer sought in this complaint such as
incomplete work, executing the conveyance for the said property, for
delivering audited accounts and true and correct (proper) audited accounts to
reimburse the advance maintenance, to carry out rectification and repair work
etc., to pay for the same which has been incurred by the society and also for
payment of other dues during the construction by the respondent - developer.


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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The society therefore contended that the same can be allowed by the MahaRERA
under Regulation 42 of the MahaRERA (General ) Regulation, 2017 and section
38 of the RERA.

35. The promoter has assailed the claim agitated by the society in the said
amendment application mainly on the ground that the same has changed the
very nature of the complaint. Further, instead of filing such an amendment
application, the society should file fresh complaint, as admittedly, there is no
error apparent in the said
complaint nor
there is any question of law involved
in the said complaint, due to which such amendment can be allowed by the
MahaRERA. Hence, the promoter prayed for dismissal of the said amendment
application filed by the society.

36. In this regard it is pertinent to peruse the relevant provisions of Regulation 42
of the MahaRERA, (General ) Regulation, 2017, which reads as under:
“Further the provision of Regulation 42 of the MahaRERA General
Regulation reads as under :

42. The Authority may, at any time and on such terms as to costs or otherwise, as
it may think fit, amend any defect or error in any proceedings before it (including
any clerical or arithmetical error in any order passed by the Authority), and all
necessary amendments, rectifications shall be made for the purpose of
determining the real question or issue arising in the proceedings. ̈
Provided that if the Authority desires to make amendments or rectifications in
order to determine the real question or issue arising the Authority shall provide
an opportunity to the parties affected by such amendment or rectification
touching the real question or issue to make representations and submissions with
respect to the proposed amendment or rectification.”


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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37. Further, the provision of section 38 of the RERA which reads as under:

38. (1) The Authority shall have powers to impose penalty or interest, in regard to
any contravention of obligations cast upon the promoters, the allottees and the
real estate agents, under this Act or the rules and the regulations made
thereunder.
(2) The Authority shall be guided by the principles of natural justice and, subject
to the other provisions of this Act and the rules made thereunder, the Authority
shall have powers to regulate its own procedure.
(3) Where an issue is raised relating to agreement, action, omission, practice or
procedure that—(a) has an appreciable prevention, restriction or distortion of
competition in connection with the development of a real estate project; or(b) has
effect of market power of monopoly situation being abused for affecting interest
of allottees adversely, then the Authority, may suo motu, make reference in
respect of such issue to the Competition Commission of India.39. The Authority
may, at any time within.”

38. The aforesaid provisions of Regulation 42 of the MahaRERA General
Regulation, 2017, clearly provides that the MahaRERA can allow to amend any
defect or error in any proceedings filed before it including any typographical or
arithmetical error in any order passed by the MahaRERA for the purpose of
determining the real question or issue arising in the proceedings. However, the
provisions of section 38 of the RERA, in which the society is seeking an order on
this amendment application, empowers MahaRERA to regulate its own
procedure in compliance of the principles of natural justices.

39. In the present case, the society formed in the project, has admittedly filed this
complaint mainly seeking reliefs under section 11(f) and (g) of the RERA, which


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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pertains to the duties and liabilities of the promoter of the project registered
under the provisions of the RERA. Hence, even if there is no defect/ error in the
main complaint filed by the society, the said amendment sought by the society
can be considered by the MahaRERA in compliance of the principles of natural
justice by exercising powers vested with it under section 38(2) of the RERA.
Moreso, , even if the MahaRERA allows the said amendment application sought
by the society at this stage, it would not amount to allowing the main
complaint. It is ostensibly because, the MahaRERA needs to decide the said
complaint (after amendment) on merits as per the provisions of the RERA.

40. Considering these facts, and in compliance of the principles of natural justice,
the MahaRERA feels it proper to allow the said amendment application dated
15-12-2020 filed by the society.

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

a) The hearing on the complaints filed by the allottee and promoter at sr. nos. 1
and 3 respectively stands deferred till decision on the complaint filed by the
society at sr. no.2.
b) The application filed by the promoter for dismissal of the complaint filed by
the society stands rejected in view of the observations made in the aforesaid
para-no.33.
c) The amendment application filed by the society in complaint at sr. no. 2 is
hereby allowed.
d) The society is directed to serve the copy of the amended complaint to the
promoter within a period of two weeks and upload the same in the
complaint.


Complaint No. CC006000000197897
, CC006000000198391 &
CC006000000396389

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e) The promoter is directed to file its reply to the said amended complaint
within a period of two weeks from the date of receipt of the amended
complaint from the society.
f) Both the society and the promoter are directed to complete the pleadings
before the next date of hearing.
g) The Registry of this Bench is directed to list this complaint for next hearing
as per seniority.


(Mahesh Pathak)
Member – 1/MahaRERA