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


COMPLAINT NO. CC006000000198959

PRANAV PRAVINCHANDRA DHRAFANI,

SIDDHI P DHRAFANI &

BHADRA P DHRAFANI


…COMPLAINANT/S


VS

1. SHREE SIDDHIVINAYAK
INFRASTRUCTURE & REALTY
A partnership firm through its partners herein as Respondent No.
3 & 4:

2. PIRAMAL CAPITAL & HOUSING FINANCE LTD
(formerly known as DHFL)

3. AMIT RUPAREL

4. SHREE SIDDHIVINAYAK REAL HOMES PRIVATE
LIMITED
…RESPONDENT/S


MAHARERA PROJECT REGISTRATION NO. P51800012513


INTERIM ORDER


February 12th, 2025
(Last Date of hearing 28.11.2024 - the matter was reserved on the issue of maintainability.)

Coram: Shri. Manoj Saunik, Chairperson, MahaRERA

Advocate Satish Dedhia present for complainants.
Advocate Anosh S. present for respondent no. 1.
None appeared for respondents no. 2 to 4.

1. The complainants are home buyers and allottees within the meaning of
Section 2 (d) of the Real Estate (Regulation and Development) Act, 2016
(hereinafter referred to as the “said Act”) of Real Estate Regulatory
Authority (hereinafter referred to as the “RERA”) and the respondent no.
1 is the promoter within the meaning of Section 2 (zk) of the said Act. The

respondent no. 1 is registered as the promoter of the project namely
“Ruparel Skygreens I” under section 5 of the said Act bearing

MAHARERA Project Registration No. P51800012513
(hereinafter
referred to as the “said Project”). Whereas the respondent no. 2 is a
financial institution/lender, and the respondent no. 3 & 4 are the
partners of the respondent no. 1’s partnership Firm.

2. On the MahaRERA project registration webpage the proposed
completion date is mentioned as 31.12.2021, the revised proposed date of
completion is
mentioned as 30.12.2022 and the extended date of
completion is mentioned as 30.12.2025.

3. The complainants are seeking the following reliefs:
(a) This Hon’ble Authority may not allow Respondents to take benefit of (1) the unfair/
unilateral/ one-sided clauses/ consents contained in the Subvention Agreement, Agreement for
Sale including Clause-37 of Agreement (2) the delay in execution of Agreement (3) other
wrongs and contraventions committed by the Respondents.
(b) This Hon’ble Authority may please to direct and order the Respondent Promoter to pay
interest for the entire delay period from the December’2019 to the actual date of possession of
the duly completed flat after receipt of full occupation certificate and completion of the project.
(c) This Hon’ble Authority may please to direct and order the Respondent Promoter not to deal
with the Flat and car parking space in any manner whatsoever.
(d) (d1)This Hon’ble Authority may please to direct and order the Respondent Promoter to
complete the project, building and flat along with promised amenities, adjust the interest
payable by the Promoter against balance amount if any and handover possession of the duly
completed flat by obtaining full occupation certificate and completion of the project in a time
bound schedule”. 38 (d2) This Hon’ble Authority may please to direct and order the Respondent
Promoter to provide complete set of approved plans confirming the carpet area of the flat and
in case of difference of carpet area in the approved plans and agreement for sale, the Promoter
shall execute rectification deed and revise the price as per the actual area mentioned in the
approved plans in a time bound schedule
(e) This Hon’ble Authority may please to direct and order the Promoter to reimburse the
expenses incurred by the Allottees in contesting the proceedings initiated by DHFL.
(f) This Hon’ble Authority may please to direct and order the Promoter to pay compensation as
per provisions u/s 12 & 18(3), to the Allottees for the following: (1) for loss for the delay in
living lifestyle as promised by Promoter & harassment & mental agony & adverse effect on
health: (2) for loss of income from Leave and License compensation: (3) for differential interest
rate.
(g) This Hon’ble Authority may please to direct and order the Promoter to comply with the
Orders passed by this Hon’ble Authority within a time bound schedule failing which the
Promoter shall pay penalty as per the provisions u/s 63 to 69 of RERA.
(h) Costs be provided for;

(i) For such other and further reliefs as the nature and circumstances of the case may require.

4. The captioned complaint was heard on 28.11.2024, wherein the
following roznama was recorded by this Authority:

“Both parties are present.
Parties are heard at length on issue of maintainability. Parties are at liberty to file written
submissions before 04.12.2024; subsequent to which the matter will be reserved for orders on
the limited issue of maintainability.”

5. The brief facts in the complaint are as follows:

COMPLAINT NO
&
DATE OF FILING
WING
&
FLAT NO
DATE
OF
AFS1
DATE OF
POSSESSIO
N AS PER
AFS
TOTAL
CONSIDER
A TION AS
PER AFS
TOTAL
AMOUN
T
PAID2
(As per the
documents/evi
d ence
provided for
proof of
payment)
DISBUSRSEMENT
AMOUNT &
DATE
CC006000000198959

08. 11.2021
A-2204

07. 02.2019
31 December,
2021
1,25,56,000/-
84,40,422/-
7734496/-

28. 07.2017

6. The brief submissions of the complainants are as follows:

(i) That the issue raised by the respondent no. 1 is only to pressurize the
complainants and to delay the proceeding of the complaint.
(ii) The respondent no.1 has not provided any documentation attesting to the
allottees agreement to refer any disputes to the arbitrator at the time the
flat was sold. As a result, the Arbitration Clause was included without
permission.
(iii) That between statutory remedies and contractual remedies, the former
shall prevail as arbitration is merely a product of the agreement whereas
RERA is a statutory right that cannot be curtailed.
(iv) Reliance is based on the Supreme court

JUDGMENT

in Emmar Mgf Land
Limited VS Aftab Singh, wherein it was held that the complainant has

liberty to approach Authority and is entitled to claim remedy under the
said act.
(v) That the objection raised by the respondent no. 1 on the issue of
maintainability should be dismissed with cost.

7. The brief submissions of the respondent no. 1 are as follows:
(i)
That the complainants had purchased a flat vide an agreement
for sale dated 07.02.2019.
(ii)
That the agreement for sale contains an arbitration clause
wherein both parties consented to explore the possibility of
arbitration in case any dispute arise between the parties.
(iii)
Due to the complainant's failure to comply with the Payment
Agreement, DHFL started arbitration proceedings. As a result,
on September 16, 2021, all disagreements and disputes
pertaining to the payment of sums owed and payable by and
between the parties, including interest, were referred to
arbitration.
(iv)
That once the arbitration proceedings are commenced, then the
RERA Act does not have jurisdiction to adjudicate the matter.
(v)
That the complaint is not maintainable, and the complainants
can seek relief under the Arbitration act.

8. It is observed that no submissions have been made/filed by the
respondent no. 2 to 4 in the said complaint.

9. From the facts and the submissions, the issues that need to be considered
is, Whether the complaint is maintainable in light of the arbitration clause
mentioned in the agreement for sale entered between the Parties herein?

10. The following observations are noteworthy:
a. That the Tripartite agreement was executed between the
complainant, Piramal Capital & Housing Finance Ltd. (formerly
known as DHFL) (respondent no.2) and the respondent no.1

wherein the complainant availed loan from the respondent no.2
and the same is on record.
b. The complainants have placed on record the arbitration notice
dated 16.09.2021 issued by the respondent no. 2 (DHFL). After
perusal of the notice, it is observed that the respondent no.2 has
initiated legal proceeding under an arbitration act as per clause 24
of the Tripartite agreement, against the complainants for the non-
payment of the amount dues.
c. From the material placed on record, it is observed that the first
hearing matter under arbitration act was fixed on 08.10.2021 which
was prior to filing of complaint under the RERA Act.

11. In the present case it is pertinent to note that the complainants booked a
flat under the 5:90:5 subvention system. That the allottee has paid a
substantial sum, and respondent no. 1 has received a significant share of
the money. The subvention scheme was in collaboration with DHFL, and
the scheme has now passed on to Primal finance. Arbitration proceedings
have already begun between the allotee, respondent no. 1 and 2, for non-
payment of monies due in accordance with the terms and conditions of the
loan agreement. That the respondent no. 1 has raised issue on
maintainability of the captioned complaint in light of the arbitration clause
in the agreement. Provisions are made in RERA to safeguard the interest
of consumers / home buyers, promoters i.e. builders and real estate agents.
In the case of Rashmi Realty builders Pvt. Ltd Vs Rahul Rajendrakumar
Pagariya & Ors the Bombay high court dealt with the issue of whether
disputes covered under the Real Estate (Regulation and Development )
Act, 2016 could be referred to arbitration despite the existence of an
arbitration clause in the agreement between the parties. The High court
examined the relationship between the RERA and Arbitration and
Conciliation Act, 1996 and held that disputes under RERA are non-

arbitrable. The court observed that RERA, as a special statue, provides an
exhaustive mechanism for protecting the rights of homebuyers and
ensures effective adjudication through its regulatory framework.

12. That the provisions of RERA, are unique in nature and the same is a special
legislation enacted to safeguardinterest of all the stakeholders in Real
Estate Project namely Apartment Purchaser, Promoters and Real Estate
Agent. In view of the above observations, the answer to the issue at para-
No.9 is answered in affirmative and the complaint is maintainable. No
order as to costs.


Manoj Saunik
Chairperson, MahaRERA

MANOJ
SAUNIK
Digitally signed by
MANOJ SAUNIK
Date: 2025.02.12
13:32:47 +05'30'