Complaint No. CC006000000209708
and 3 Other Complaints

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Page 1 of 25
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BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY
AUTHORITY, MUMBAI

1. Complaint No. CC006000000209708

Mrs Smita B Patel Mr Dharmesh B Patel Mr Basu B Patel
... Complainants

Versus

Sailee Developers


... Respondent

2. Complaint No. CC006000000209906

Mr Sadashiv Shetty


... Complainant

Versus

Sailee Developers


... Respondent

3. Complaint No. CC006000000209919

Mr S Ramesh Acharya and Mrs R Laxmi Acharya

... Complainants

Versus

Sailee Developers


... Respondent

4. Complaint No. CC006000000209944

Mr Atul S Pathak and Mrs Kamalini A Pathak


... Complainants

Versus

Sailee Developers


... Respondent


MahaRERA Project Registration No. P51800018914


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

Ld. Adv. Priyanka Pathak i/b Godfrey Pimenta appeared for the complainants.
Ld. Adv. Rochelle Fernandes appeared for the respondent.


INTERIM ORDER


(Tuesday, 25th June 2024)

(Through Video Conferencing)


1. The complainants above named have filed these 4 separate online complaints
before the MahaRERA on 17-01-2022 (Sr. No. 1), on 04-02-2022(Sr. No. 2), on
05-02-2022(Sr. No. 3), and on 08-02-2022(Sr. No. 4) mainly seeking directions


Complaint No. CC006000000209708
and 3 Other Complaints

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from MahaRERA to the respondent - promoter to handover the possession of
their flats and to pay interest for the delayed possession as prescribed under
the provisions of the Real Estate (Regulation & Development) Act, 2016
(hereinafter referred to as ‘RERA’) in respect of booking of their respective flats
(as mentioned in the table below) in the respondent - promoter’s registered
project known as “PRATHAMESH GALAXY” bearing MahaRERA
registration No. P51800018914 located at Kopari, Taluka. Kurla, Mumbai
Suburban.

2. These complaints were heard by the MahaRERA on 22-08-2023, 29-11-2023 and
finally on 28-02-2024 along with other two connected complaints filed with
respect to this project as per the Standard Operating Procedure dated 12-06-
2020 issued by the MahaRERA for hearing of complaints through Video
Conferencing. Both the parties have been issued prior intimation of this
hearing. 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 both the parties, the following Roznamas were
recorded in the complaints -
On 22-08-2023:” Both the parties are present. The respondent is directed to file
a reply to these complaints within a period of two weeks i.e. by 5-9-2023. The
complainants may file their rejoinder to the reply of the respondent within a
further period of three weeks i.e. by 26-9-2023. These matters are adjourned to
a suitable date after 26-9-2023 for further hearing. List these matters for next
hearing on 29-11-2023.”

On 29-11-2023: “The complainants are present. The respondent is absent. At
the outset, the complainants have mentioned in the hearing that there are


Complaint No. CC006000000209708
and 3 Other Complaints

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appeals pending before the Hon’ble MahaRERA Appellate Tribunal filed by
the respondent-promoter challenging the registration of the project. The said
challenge arises out of an order passed by the Hon’ble erstwhile
Chairperson/MahaRERA directing the respondent to register the project in a
source complaint. These appeals are numbered as AT006000000052792,
AT006000000052794 and AT006000000053194 according to the complainants
and the matters are at an advanced stage of hearing. Therefore, the
complainants contend that the final orders in these appeals would have a
direct bearing on these complaints and request that these complaints may be
heard subsequent to passing of the final orders in the said appeals before
MahaRERA Appellate Tribunal. Be that as it may, the complainants are
directed to amend the prayers in sr. no. 16 (CC006000000209708) and in sr. nos.
20 (CC006000000251330) & sr. no. 21 (CC006000000251332) to include the
prayer of execution of the agreement for sale as the complainants in these
sr.nos. have allotment letters only. Further, the respondent has already filed
its replies to these complaints. Therefore, the complainants may file rejoinders
to the said replies. The matters are adjourned to a suitable date for further
hearing as requested by the complainants. List these matters for next hearing
on 28-02-2024”

On 28-02-2024: “Both the parties are present. There is a long history to this
project and four orders have been issued by the MahaRERA as well as by the
Hon’ble MahaRERA Appellate Tribunal. Vide the last order dated 27-10-2023
passed by the Hon’ble Chairperson/MahaRERA, the project registration had
been kept in abeyance and all the complaints in the said project were supposed
to be tagged together and fixed for hearing. Although the respondent has filed a
reply to these complaints in September, 2023, this order of the MahaRERA came
to be issued after the said reply. There is also a matter pending before the
Hon’ble High Court at Bombay which is filed by the association of allottees for
specific performance of the agreement for sale as the project is not progressing.
The complainants may file rejoinders to the reply of the respondent along with


Complaint No. CC006000000209708
and 3 Other Complaints

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their written arguments within a period of two weeks i.e. by 13-3-2024. Further
two weeks’ time i.e. till 27-3-2024 is granted to the respondent to file sur-
rejoinder if any, along with written arguments. All the complainants are
praying for possession along with interest and compensation for delay. The date
of booking and the allotment letter/agreement for sale, the flat details, the total
consideration, and the total amount paid, as well as the date of possession is
as per the table given below :
Sr.No./

Complaint No.
Allotment

Letter/
Agreemen
t for Sale
Flat
detail
s
Total
consideratio
n
Total
Amount
paid
Date of
possessio
n

17. CC00600000020970
8
20/01/2003
(DOB)
A-
2001

16,74,000/-
4,76,500/-
on or
before
December,
2005

18. CC00600000020990
6
27/06/2001
17/03/2003
(Allotmen
t letter)
A-802
&
Shop
no. 3
13,48,500/-
8,12,500/-
7,30,400/-
NA

19. CC00600000020991
9
23/11/2004
(AFS)
1404
23,45,125/-
13,44,607/
-
NA

20. CC00600000020994
4
19/06/2004
(AFS)
A- 703 28,27,000/-
16,12,500/
-
on or
before
December,
2005


Complaint No. CC006000000209708
and 3 Other Complaints

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21. CC00600000025133
0
28/02/2003
(Booked)
A-
2203
26,25,000/-
26,25,000/
-
NA

22. CC00600000025133
2
28/02/2003
(booked)
A-
1304
16,06,250/-
16,06,250/
-
NA

The respondent in its reply has admitted that the project is inordinately delayed
due to various litigations regarding the project as well as the project land. The
respondent has therefore admitted that the agreements for sale or the allotment
letters are frustrated and the respondent is unable to handover possession to the
complainants moreso, because of the existence of a status quo order issued by
the Hon’ble High Court at Bombay on 19-11-2007. Therefore, the respondent is
able and willing to refund the amount of consideration paid by the
complainants with interest upto the said date when the status quo came to be
issued. Needless to mention that both parties may serve copies of the replies,
rejoinders, sur-rejoinder on each other. Accordingly, these matters are reserved
for orders suitably after 27-3-2024 based on the arguments of both sides as well
as the replies, rejoinders, written arguments filed in the complaints.”

4. Pursuant to the aforesaid directions issued by the MahaRERA, the
complainants at sr. nos. 1, 2 and 4 have uploaded their written submissions in
the record of the MahaRERA on 11-03-2024. The respondent has only uploaded
its written submissions on 27-03-2024. The said submissions are accepted and
taken on record. The MahaRERA has also perused the available records.

5. The complainants by filing these 4 separate online complaints have prayed for
possession of their flats along with interest and compensation for the delay.
The details of the flats booked by them, dates of agreements for sale, dates of


Complaint No. CC006000000209708
and 3 Other Complaints

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possession, total consideration and consideration paid are as per the table
given below –


Complaint No.
Complainant
’s
name.
Details
of
the
Flat
Booked
Date
of
Agreement
for Sale
Date
of
Possession
Total
Consideration
Consideration
Paid
CC006000000209708
Mrs Smita B Patel
Mr
Dharmesh
B
Patel Mr Basu B
Patel
A- 2001

20-01-2003
(Allotment
letter)
Not
mentioned
(on or before
December
2005 at
the
time
of
booking)
Rs. 16,74,000/-

Rs. 4,76,500/-
Rs.1,22,670/-
(stamp duty)
CC006000000209906
Mr Sadashiv Shetty
A-802 &
Shop no. 3
24-12-2003 (flat)
28-08-2004
(shop) (AFS)
Not
mentioned
Rs. 13,48,500/-
Rs. 8,12,500/-

Rs. 7,30,400/-
CC006000000209919
Mr
S
Ramesh
Acharya and Mrs R
Laxmi Acharya
A- 1404
23-11-2004
(AFS)
Not
mentioned
Rs. 23,45,125/-
Rs. 13,44,607/-
CC006000000209944
A- 703
19-06-2004
Rs. 28,27,000/-


Complaint No. CC006000000209708
and 3 Other Complaints

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Mr Atul S Pathak
and Mrs Kamalini A
Pathak
(AFS)
Not
mentioned
Rs. 16,12,500/-

6. It is the case of the complainants that they purchased their said flats in the
respondent’s said project vide agreement for sale and allotment letters (as
applicable) for which they had paid substantial amounts to the respondent as
mentioned in the abovementioned table. These complaints were filed pursuant
to grant of liberty to file fresh compliant vide order dated 22-12-2021 passed
by Hon’ble Chairperson, MahaRERA. As, the said complaints filed by the
complainants lacked all the necessary details, the complainants withdrew the
complaints on 22-11-2021, with liberty to file fresh complaints seeking interest
on delayed possession of the flat. The complainants further submitted that
they are members of ‘Prathamesh Galaxy Members Welfare Association’
which has filed a suit being Suit No.2547 of 2010 against the respondent and
others before Hon’ble Bombay High Court, seeking various reliefs therein. The
Hon’ble Bombay High Court vide an order dated 28-10-2015 passed in the said
suit framed various issues save and except compensation for delayed
possession of the respective flats purchased in the said project. The
complainants further stated that the respondent by its actions, played fraud
on them inasmuch as the respondent even though on receipt of substantial
payment of the said flats which was in excess of 20% value of the said flat as
per MOFA and more than 10% of the value of the said flat under RERA did
not register the agreement for sale under the provisions of the Registration Act,
1908, (as applicable). As such there is continuing breach of section 13 of RERA
on the part of the respondent in non-execution of the registered agreement for
sale in favour of the said complainants. The complainants at sr. no. 1 submitted
that the respondent initially allotted and collected payments for a lake facing
flat no. A2002 however, subsequently sold the original allotment A-2002 and
allotted new flat no. A-2001 which was non lake facing and thus cheated the


Complaint No. CC006000000209708
and 3 Other Complaints

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complainants. The complainants at sr. no. 1 submitted that the Collector and
Competent Authority under Urban Land Ceiling Act vide its letter dated 07-
03-2019 has called upon the respondent to pay a sum of Rs. 2,37,75,546/- as
ULC Premium charges.

7. In addition the complainants have further stated that the possession of the
said flats was to be delivered to them on or before December 2005 as was
promised by the respondent to the complainants at the time of booking of the
said flats. However, the respondent in the complaints at sr. nos. 2 and 3 have
not mentioned the date of possession in the said letter of allotment and
agreement for sale. In absence of date of possession, the reasonable period of
possession is 3 years (Fortune Infrastructure v/s. Trevor D’Lima (2018)5 SCC
442). As such, the complainants are entitled to interest on delayed possession
since January 2006 till the receipt of OC for the said flats. It was submitted by
the complainants that the respondents as the promoters of the said project have
failed to complete the construction of the said project for almost 15 years now
from the date of possession of their respective said flats. The complainants
stated that recently the Government of Maharashtra announced concessions in
stamp duty with regard to the purchase of flats and all such agreements for
sale, if executed on or before 31-12-2020 will have to pay stamp duty at
concessional rate of 2% and thereafter, the said stamp duty rate will be
enhanced to 3% from 01-01-2021 up to 31-03-2021. The complainants at sr. nos.
1 and 2 stated that they wished to take advantage of the said concessions in
payment of stamp duty on agreement for sale for the purchase of their said
flats. Accordingly, the complainants stated that due to non-cooperation by the
respondent, the agreement for sale could not be executed by aforesaid dates,
as such it has caused immense loss to the complainants. The complainants
despite regularly following up with the respondents and demanding
possession of the said flat, the same has been failed to be delivered by the
respondent. The complainants at sr. nos. 1 and 2 have been demanding


Complaint No. CC006000000209708
and 3 Other Complaints

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execution of the agreement for sale in respect of their said flat to the
respondent, however the respondent never paid heed to the same. The
complainants submit that in terms of section 18(1) of RERA the respondent is
liable to pay interest for every month of delay till handing over of the
possession of the said flats to the complainants from January 2006 till grant of
possession of the said flats with Occupation Certificate. Therefore, being
aggrieved by the actions of the respondent, the complainants have filed these
present complaints before the MahaRERA as prescribed under the provisions
of the RERA seeking interest for every month of delay till the actual date of
handover of possession of the said flats and the respondent be directed to pay
the difference in stamp duty as complainants could not avail the concessions
in stamp duty at a reduced rate and for compensation.

8. The respondent uploaded its reply on the record of MahaRERA on 09-09-
2023(sr. no. 1), and on 08-09-2023(sr. nos. 2, 3 and 4). In the said reply the
respondent has denied each and every contention made by the complainants
in their respective complaints. It has further mentioned all the information of
the respective land comprehensively. Further, the respondent had given a
detailed description related to land and the deeds or development agreements
encumbrance and how the said land became a disputed land. The respondent
further stated that the area of the said project land was distributed among the
builder and developers vide a deed dated 03-05-2001 and 04-07-2004
(hereinafter referred to as ‘twin deeds’). In the meantime, while commencing
the work in the said project, the respondent received a stop work notice and
from MCGM on 09-09-2004. Hence, being aggrieved by the MCGM the
respondent had approached the ULC department to set aside the said notice
to resume the work on the said project. Further, the respondent submitted that
the said erstwhile builders have terminated the twin deeds. Thereafter, the
respondent submitted that due to various issues and disputes the land title is
not clear. Further, it submitted that aggrieved by the said action of one of the


Complaint No. CC006000000209708
and 3 Other Complaints

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builders (M/s. Chandiwala), the respondent filed a suit vide a bearing no. 1864
of 2009 against M/s. Chandiwala. However, the Hon’ble Bombay High Court
has passed an order dated 18-12-2009 wherein the High Court has ordered
status quo in respect of the land and directed the parties to maintain the same.
Nevertheless, the respondent filed another suit bearing no. 1408 of 2009 against
one of the builders (Shivalik) before the City Civil Court Mumbai to restrain
the builder from entering the suit property. However, the said suit is still
pending. The commissioner’s report dated 13-07-2009 states that the
respondent owns the possession of entire property. Nevertheless, the Great
Deal Developer then filed a substantive suit in the High Court, vide suit no.
2202 of 2009. In the meanwhile, they took out a notice of the motion 3105 of
2009 wherein the order was passed dated 02-09-2009 and it was recorded as
such that the respondent shall not create any further third-party rights, nor
part with possession, alienate, or encumber the suit property in any manner.
The respondent further submitted that according to the minutes of the order
dated 21-10-2010 it was mentioned that the two orders as above have been
consented. However, the final disposal of the arbitration petition is still
pending before the arbitrator. Nevertheless, a suit bearing no 1418 of 2012
came to be filed by one of the builders (Kamal Sheth) against one of the
builders (Varshraj Realtors Pvt. Ltd.) vide a notice of motion no. 1481 of 2012
taken out by Kamal Sheth which has been suspended. Nevertheless, the parties
requested to adjourn the proceeding till the issue of the inter se dispute is
resolved. However, the notice of motion no. 1481 of 2012 is still pending as of
date. It further stated that the claim petitions no. 1, claim petitions no. 2, claim
petitions no. 3, claim petitions no.4, and claim petitions no. 5 are pending
before Hon'ble Bombay High Court. Nevertheless, the arbitrator has resigned
as the sole arbitrator vide letter dated 13-02-2023. Hence, the status of the
arbitration petitions is now in limbo. The respondent mentioned that in view
of the above, there has been a considerable delay since the year 2012.
Furthermore, the respondent submitted that the complainant agreed that they


Complaint No. CC006000000209708
and 3 Other Complaints

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are members of the Prathamesh Galaxy Welfare Association Co-Operative
Housing Society Ltd. formed for the flat purchasers who have purchased the
flats and the shops in the said projects. However, these complainants filed a
suit no. 2547 of 2010 before the Hon’ble Bombay High Court. However, it is
observed that the complainants are seeking similar remedies in two separate
forums. Moreover, the respondent has filed its reply in the said suit.
Thereafter, in the year 2010, the status quo orders were already operating on
the suit properly and it was further set out that the respondent shall honour
the allotments and agreements entered into by the respondent subject to all the
proceedings. However, the respondent is ready to pay all the amounts along
with interest which was received by the respondent. Nevertheless, in the said
suit the Hon'ble Bombay High Court appointed a court receiver who gave the
possession of certain shops. The respondent further submitted that the project
was not registered by it and the same lacks validity of IOD and CC. Hence, it
lapsed due to the status quo concerning the said project. Further, it submitted
that a complaint bearing no. SC10000348 was filed by Mr. Hitesh Chovatia
against the respondent for seeking the registration of the said project. Further,
it alleged that the direction was passed by the MahaRERA without following
the due process of law and failing to follow the provisions vide rule 6 and rule
7 by violating the principle of natural justice. Further, in the said source
complaint the MahaRERA has passed an impugned order dated 28-11-2018
wherein the respondent was directed to register the said project failing which
the respondent shall be made to bear heavy penalty charges. Hence out of fear
of facing heavy penalties, the respondent registered the said project under
protest as per the aforesaid impugned direction of the said order dated 28-11-

2018. Furthermore, the respondent alleged that despite informing the issues
that the respondent had obtained the permissions from the statutory
authorities which had already lapsed, as well as there were certain
injunctions/status quo orders of the Hon’ble Bombay High Court., however,
the MahaRERA forcibly directed the respondent to register the said project.


Complaint No. CC006000000209708
and 3 Other Complaints

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The respondent further stated that the project land title is not clear as there are
lot of disputes. Further, it stated that the regulations set out in sections 3 and 4
of the RERA read along with rules 3 and 4 of the Maharashtra Regulation and
Development Rules 2017 are outdated and invalid and as the New DCPR of
Greater Mumbai 2034 had came into force and the sanctioned plans like fire
norms, etc. cannot be strictly followed and constructed in the same manner.
Further, it submitted that the doctrine of impossibility will be applied in the
present case. Section 4 of the RERA is fulfilled by submitted layout plans,
sanctioned plans, specifications of the project sanctioned, etc. and application
of the project cannot be entertained by the MahaRERA. Further, under section
48 of the Maharashtra Regional and Town Planning Act, 1996 every permission
for the development granted or deemed to be granted under the said Act shall
remain in force for one year from the date of receipt of such grant and
thereafter it shall lapse. Nevertheless, the complainants filed a complaint
bearing no. CC006000000192714 of 2020 under section 5 of the RERA wherein
they prayed for cancellation of the registration granted to respondent no. 1
under section 5 of the RERA. However, it was declared void ab initio and
cancelled as the said project has no valid IOD and CC as the same has lapsed.
Hence, the registration carries no legal value as it is null and void, in violation
of law and liable to be quashed and set aside. Further, the said complaint was
dismissed by the MahaRERA vide an order dated 01-04-2020 by not
considering various orders passed by the Hon’ble Bombay High Court. Being
aggrieved by the said order, the respondent promoter filed an appeal bearing
no. AT006000000052755 before the Hon’ble Appellate Tribunal. In the said
appeal, the Hon’ble Appellate Tribunal was pleased to pass an order on 16-12-
2021 by setting aside the said order dated 01-04-2020 and remanding the
matter to MahaRERA to hear the said complaint afresh. Accordingly, the said
complaint was heard and decided by the MahaRERA.

9. It has further stated that the project has reached a dead end, and the doctrine


Complaint No. CC006000000209708
and 3 Other Complaints

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of frustration has come into play as the contracts signed by it with the allottees
cannot be performed. Hence, it has stated that it is ready and willing to refund
all the consideration amounts paid by the said allottees/flat purchasers along
with interest up to the date of the status quo order i.e. 19-11-2007.
Nevertheless, it relied on the statements of amount and interest calculation as
produced. Further, the respondent prayed to allow it deposit the consideration
amount along with interest up to the status quo order and to give directions to
terminate the agreements and allotment letters.

10. The complainants at sr. no. 1 has uploaded an amendment application on the
record of the MahaRERA on 27-02-2024, amending para (4) and adding a new
prayer of execution of agreement for sale in the said complaint.

11. The complainants at sr. nos. 1, 2 and 4 on 11-03-2024 have uploaded their
written submissions in the record of the MahaRERA wherein they submitted
that provisions of section 18 are clear that if the respondent fails to handover
possession by the specified date as mentioned in the agreements for sale or as
the case may be i.e. as per RERA, the respondent shall either be liable to pay
interest to the complainants for delayed possession of the flat or the
complainants have a choice to exit from the project. This provision does not
provide for any waiver or disclaimer or exception and is an absolute provision.
Further, even though there are complexities involved in executing and
constructing the said project, however there was nothing new in these
complexities and every developer taking up such projects are well aware of
them. Thus, while declaring a date, the respondent was required to conduct
due prudence on the said project. The complainants had no means to know the
issues and problems involved. This was the very reason that section 18 remedy
does not come with any caveats. This remedy has been made available to
ensure that promoters make doable commitments and not frivolous promises,
which they then try to wriggle out of by appropriating blame on other entities.


Complaint No. CC006000000209708
and 3 Other Complaints

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It was further submitted by the complainants that, reasons for delay as stated
by the respondent can be grounds for consideration with regard to seeking
extension of the completion date under the said act for the said project and not
otherwise. The respondents were aware of the challenges faced in the said
project and the same cannot be cited for denying exit from the project. The real
estate projects do carry risks of litigations. It is for the respondent to cover and
carry these risks through meticulous prudence checks. The complainants on
payment of consideration should be assured of delivery of the premises as
promised and on the date promised. It is not for the complainants to ascertain
the risk and apportion the same upon themselves. In fact, the essence of the
RERA has been to de-risk the project as far as the allottee is concerned. Thus,
the reasons cited by the respondent for delay even if correct and valid cannot
be used as a mitigating circumstance to reduce the liability of the respondent
towards the complainants. The complainants submitted that, even otherwise
on account of Covid-19 Pandemic, the MahaRERA had issued order
No.14/2020 dated 18-05-2020, whereby the dates of possession mentioned in
the already registered agreement for sale have deemed to be extended by Force
Majeure period, which was for period of 6 months. In any case since the date
of possession in respect of the complainants’ flat was much before Covid-19
Pandemic the subsequent delay was solely attributable to the respondent.
Every project has various glitches and hiccups however, as an experienced
promoter executing real estate projects one always factors such issues in the
project timelines and based on in depth study by the competent professionals
engaged by the respondent the timelines are conveyed to the flat purchasers
in the form of confirmed possession date. However, the respondent as a
promoter was required to communicate such instances to the complainants. In
the instant case, no such extension was ever sought by the respondents from
the complainants. The complainant further relied upon the Hon’ble Apex
Court

JUDGEMENT

in the matter of Imperia Structure Ltd. vs. Anil Patani. as
under: "In terms of Section 18 of the RERA Act if a promoter fails to complete or is


Complaint No. CC006000000209708
and 3 Other Complaints

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unable to give possession of an apartment duly completed by the date specified in the
agreement, the Promoter would be liable, on demand, to return the amount received by
him in respect of that apartment if the Allottee wishes to withdraw from the project.
Such right of an Allottee is specifically made 'without prejudice to any other remedy
available to him'. The right so given to the Allottee is unqualified and if availed, the
money deposited by the Allottee has to be refunded with interest at such rate as may
be prescribed. The proviso to Section 18(1) contemplates a situation where the Allottee
does not intend to withdraw from the project. In that case he is entitled to and must be
paid interest for every month of delay till the handing over of the possession. It is up
to the Allottee to proceed either under Section 18(1) or under proviso to Section 18(1).
The case of Himanshu Giri came under the latter category. The RERA Act thus
definitely provides a remedy to an Allottee who wishes to withdraw from the project or
claim return on his investment. " "It is true that some special authorities are created
under the RERA Act for the regulation and promotion of the real estate sector and the
issues concerning a registered project are specifically entrusted to functionaries under
the RERA Act, but for the present purposes, we must go by the purport of Section 18
of the RERA Act, Since it gives a right "without prejudice to any other remedy
available in effect, such other remedy is acknowledged and saved subject always to the
applicability of Section 79." The above position has been reiterated by the
Hon’ble Appellate Tribunal in the matter of Mrs. Jyoti K Narang and Anr. vs.
CCI Projects Pvt. Ltd. Therefore, the complainants prayed for the reliefs sought
in their complaints.

12. The respondent uploaded its written submissions on records of MahaRERA
on 27-03-2024. The respondent has repeated all the facts which are already
mentioned in the affidavit in reply to the respondent. Furthermore, the
respondent submitted that the status quo orders are creating a full stop on the
work of the said project. However, till date, it is in operation. Notwithstanding,
the said project is dealing with various disputes, litigations and stays and these
are the major reasons for all delay which are beyond the control of the


Complaint No. CC006000000209708
and 3 Other Complaints

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respondent. The respondent further stated that the construction work of the
said project is at a standstill and the permission has lapsed. Hence, the
respondent has approached MahaRERA to challenge the registration and
direct to keep the project in abeyance. The respondent stated that it cannot be
ordered to pay interest for an indefinite amount of time because the project is
on hold. Further, it prayed for similar prayers which are already prayed in the
affidavit in reply.

13. The MahaRERA has examined the rival submissions made by both the parties
and also perused the available record. In the present case, the complainants
claiming to be the allottees of this project by filing these complaints have
approached the MahaRERA mainly seeking reliefs towards execution of
agreement for sale (amended relief in sr. no. 1) and possession of their flats
along with interest and compensation on account of delay under section 18 of
the RERA. The complainants are agitating the aforesaid reliefs by virtue of
allotment letter/ registered agreements for sale ( as mentioned in the aforesaid
table at para no. 5.

14. The respondent has assailed the aforesaid reliefs sought by the complainants
by filings its detailed reply on record of MahaRERA. It has mainly contended
that the project is at a standstill in view of the status quo order dated 19-11-
2007 passed by the Hon’ble Bombay High Court in in Appeal (L) No. 862 of
2007 in Arbitration Petition No. 396 of 2007 filed by one M/s. Zoom Trade &
Realty Limited. Due to the said pending litigation the respondent has admitted
that the project is inordinately delayed. The respondent has further stated
that as the agreements for sale/ the allotment letters issued in favour of these
complainants are frustrated and the respondent is unable to handover
possession to the complainants, hence, it has shown its willingness to refund
the entire money paid by these complainants along with interest from the date
of payment till the date of the said status quo order is passed by the Hon’ble


Complaint No. CC006000000209708
and 3 Other Complaints

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Court i.e. till 19-11-2007.

15. The complainants herein during the course of hearing held on 29-11-2023 have
informed
the
MahaRERA
that
there
are
Appeals
bearing
nos.
AT006000000052792, AT006000000052794 and AT006000000053194 filed
against the order dated 11-03-2020 passed the MahaRERA in review
application filed the respondent herein in
Complaint no. CC006000000057314

filed by other similarly placed complainant-allottee viz Mr. Hitesh Chovatia.
The said appeals have direct bearing on these complaints. Hence, the
complainants prayed that these complaints be heard after final disposal of the
said pending appeals.

16. However, in the present case, on bare perusal of the available record, the
MahaRERA has prima facie noticed that as per the order dated 28-11-2018
passed by the MahaRERA in Source
Complaint No. SC10000348
filed by one
Mr. Hitesh Chovatia, the respondent has registered this project with the
MahaRERA by filing a registration application on 7-12-2018. Accordingly, the
MahaRERA has issued the registration certificate in favour of the respondent
promoter under section 5 of the RERA.

17. However, the respondent had thereafter filed a Complaint bearing No.
CC00600000192714 before the MahaRERA mainly seeking cancellation of the
said registration certificate issued by the MahaRERA under section 5 of the
RERA and the same be declared as void ab-initio.

18. The
said
complaint
was
heard
by
the
Hon’ble
Erstwhile
Chairperson/MahaRERA and the Ld. Erstwhile Member-2/MahaRERA and
accordingly an order dated 01-04-2020 came to be issued by the MahaRERA
whereby, the following directions was issued in the same:-


Complaint No. CC006000000209708
and 3 Other Complaints

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“6.
It is an admitted fact that pursuant to the grant of commencement
certificate, the promoters have commenced construction and carried out
substantial construction in the project. Thereafter, due to multiple litigations, the
project has remained stand still for quite some time. In view of condition no. 5 of
the Commencement Certificate, the promoters, at an appropriate stage, can always
approach the competent authority for renewed permissions.

7. The status quo order against the parties in the litigations pertaining to the
project should not come in the way of the promoters registering the said project
under the provisions of the Act. Further, the Respondent has also created third
party rights in the said project. In the Neel Kamal Realtors Suburban Pvt. Ltd. and
anr. Vs. Union of India and others, the Honourable High Court in para 115 of its
order has held that the object and purpose of this Act is to complete the
development work within the stipulated time frame. Hence, the incomplete project
has been rightly registered with MahaRERA.

8. In view of the above facts, at this stage it would not be appropriate to deem
the project registration as void ab initio. The parties are advised to endeavour to
resolve the litigation pertaining to the said project at the earliest and complete the
project work in the stipulated time”.

19. However, being aggrieved by aforesaid order dated 01-04-2020 passed by the
MahaRERA, the respondent herein had preferred an Appeal No.
AT006000000052755 before the Hon’ble Appellate Tribunal. In the said appeal
, the Hon’ble Appellate Tribunal was pleased to pass an order on 16-12-2021
and it set aside the aforesaid order dated 01-04-2020 passed by the MahaRERA
and remanded the matter to MahaRERA for deciding the said complaint
afresh.


Complaint No. CC006000000209708
and 3 Other Complaints

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20. Pursuant to the aforesaid directions, issued by the Hon’ble Appellate Tribunal,
the Hon’ble Chairperson/MahaRERA has heard the said
complaint No.
CC00600000192714
filed by the respondent herein seeking cancellation of the
registration granted by the MahaRERA under section 5 of the RERA. In the
said complaint, the allottees have also intervened and hence, they were also
heard in the matter.

21. After hearing the submissions made by the parties concerned, the Hon’ble
Chairperson/MahaRERA was pleased to pass an order on 27-10-2023. The said
order reads as under:-
“Thus, in view of the above the Authority observes the following:
a. That there are allottees in the said Project who have filed complaints before this
Authority which are pending as on date.
b. That there are disputes between the present Respondent and the association of
allottees in the said Project which are pending adjudication before Hon’ble
Bombay High Court.
c. That the date of completion of the said Project is yet to arrive i.e. 30.12.2026.
d. That the said Project registration has been taken pursuant to a specific direction
vide a roznama dated 28.11.2018 of this Authority in a source complaint bearing
No. SC10000348.
e. Since the said Project registration, the Respondent Promoter herein has created
rights in the said Project by selling apartments to home buyers. Out of these 7
allottees have sought to intervene in the captioned complaint.
f. Further the Hon’ble Bombay High Court has directed the Promoter herein to
complete the said Project

9. Thus, from the observations it is clear that the said Project is an ongoing
project which is pending completion and there are allottees who have an interest


Complaint No. CC006000000209708
and 3 Other Complaints

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in the said Project. The matter has now come up before the Authority pursuant to
the order dated 16.12.2021 passed by the Hon’ble MahaREAT. The Hon’ble
MahaREAT remanded the captioned complaint back to MahaRERA to decide it
afresh. This order of the Hon’ble MahaREAT was passed as a consequence of
setting aside the order dated 01.04.2020 of the Erstwhile Chairperson, MahaRERA.
The order dated 01.04.2020 passed by the Erstwhile Chairperson, MahaRERA
upheld the registration of the said Project and advised the Parties to resolve the
litigation pertaining to the said Project. The said Project registration was granted
by MahaRERA on 12.12.2018. On perusal of the matter, it is clear that the grant of
this registration was done subsequent to the direction of the Authority vide a
roznama dated 28.11.2018 in source
complaint No. SC10000348
. The issue that
arises today is whether all documentation required to be completed to seek
registration were complied with at the time of grant of registration. The Authority
before examining whether compliances have been met before grant of the
registration would have to consider the fact that the registration was granted
subsequent to directive of the Authority in source
complaint No.SC10000348
.

10. In this regard it would be pertinent here to examine the provisions of grant
of registration under Section 5 of the said Act which is reproduced hereinbelow for
ease of reference:
“Section 5 - Grant of registration:
(1) On receipt of the application under sub-section (1) of section 4, the Authority
shall within a period of thirty days. (a) grant registration subject to the provisions
of this Act and the rules and regulations made thereunder, and provide a
registration number, including a Login Id and password to the applicant for
accessing the website of the Authority and to create his web page and to fill therein
the details of the proposed project; or (b) reject the application for reasons to be
recorded in writing, if such application does not conform to the provisions of this
Act or the rules or regulations made thereunder: Provided that no application shall


Complaint No. CC006000000209708
and 3 Other Complaints

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be rejected unless the applicant has been given an opportunity of being heard in the
matter.
(2) If the Authority fails to grant the registration or reject the application, as the
case may be, as provided under sub-section (1), the project shall be deemed to have
been registered, and the Authority shall within a period of seven days of the expiry
of the said period of thirty days specified under sub-section (1), provide a
registration number and a Login Id and password to the promoter for accessing the
website of the Authority and to create his web page and to fill therein the details
of the proposed project.
(3) The registration granted under this section shall be valid for a period declared
by the promoter under sub-clause (C) of clause (1) of sub-section (2) of section 4 for
completion of the project or phase thereof, as the case may be.”

The grant of registration by the Authority is subject to provisions of the act, rules
and regulations. The Authority is required to examine these at the time of granting
the registration for any given real estate project. Subsequent to this examination
and due diligence the Authority under section 5 can either grant the registration or
reject the application by recording the reasons for the same in writing. The said Act
and the relevant provision do not provide for any event where subsequently it
comes to the notice of the Authority that the registration granted does not comply
with the provisions laid out for grant of registration. The registration once granted
remains valid for period declared by the Promoter as per section 5(3) of the said
Act.

11. Thus, the Promoter having been given a registration number subsequent to
the directive of the Authority went ahead and took bookings in the said Project.
This has therefore led to a situation where there are now Allottees who have paid
a part of the consideration and now have rights and interests in the said Project.
The situation that has now arisen is that on one hand there is a need to examine


Complaint No. CC006000000209708
and 3 Other Complaints

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the grounds and the documents based on which the registration of the said Project
was granted while on the other hand the said Act does not provide for revisiting a
registration once granted and investigate the ground of its grant. To compound
matters the Promoter has gone ahead and also taken bookings in the said Project.
The Authority cannot overlook the fact that it has been mandated with the duty to
not only protect the Allottees but also ensure that the said Project is completed in
an efficient and time bound manner. This is the very essence of the said Act (RERA)
and also as clearly laid out in its preamble.

12. In such a circumstance, the Authority would seek to examine section 7 which
deals with revocation of the registration namely Section 7(3) of the said Act which
is reproduced hereinbelow for ease of reference:
“Section 7 (3): The Authority may, instead of revoking the registration under sub-
section (1), permit it to remain in force subject to such further terms and conditions
as it thinks fit to impose in the interest of the allottees, and any such terms and
conditions so imposed shall be binding upon the promoter.”
Here the paramount objective of the Authority is to protect the interest of the
Allottees, and the cancellation of the said Project registration will not be in the
interest of the Allottees at this juncture as they would be rendered remediless in
terms of the reliefs and remedies provided under the said Act. It is also further
observed that a number of matters relating to the said Project and its various stake
holders are pending adjudication before the Hon’ble Bombay High Court. It is also
observed that the Hon’ble Bombay High court has directed the Promoter to
complete the said Project. At this juncture the Authority would have to rule in
manner that it not only protects the interest of Allottees but also does not tread
the areas which are pending resolution before the Hon’ble Bombay High Court. This
twin aim would have to be achieved by issuing such directives and terms and
conditions which protect the interest of the Allottees.


Complaint No. CC006000000209708
and 3 Other Complaints

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13. Thus, in view of the above the Authority is constrained to put the said
Project registration number in abeyance till such time that the grievances of the
Allottees pending before the Authority are settled and also the various litigation
before the Hon’ble Bombay High Court reach determination. The Respondent
Promoter shall not be entitled to advertise, market, book, sell or offer for sale, or
invite person/s to purchase in any manner any apartment in the said Project.

14. The Secretary, MahaRERA to put the said Project registration number in
abeyance. The Secretary MahaRERA is hereby directed to take a stock of and
review all returns filed till date and ensure that the same are in safe custody. All
complaints in the said Project pending adjudication before the Authority be tagged
together and fixed for hearing. Further on the website pertaining to the said Project
registration this order should be displayed.”

22. On bare perusal of the aforesaid order passed by the Hon’ble
Chairperson/MahaRERA, it appears that the captioned project (in which these
complaints have been filed) is kept in abeyance till the grievances of the
allottees pending before the MahaRERA are settled and also various litigation
before the Hon’ble Bombay High Court are concluded.

23. However, in this case admittedly, the pending litigation (Suits/Writ Petitions)
filed by various parties with respect to the project land is still pending and the
status quo order dated 19-11-2007 passed by the Hon’ble Bombay High Court
is still in operation (as per both the parties). Also, the Association of the
allottees formed in the project viz ‘Prathamesh Galaxy Members Welfare
Association’ has also filed Suit No. 2547 of 2019 before the Hon’ble High Court
at Bombay mainly seeking specific performance of the agreements for
sale/allotment letters issued by the respondent promoter with its members
and the same is also pending for consideration before the Hon’ble Bombay


Complaint No. CC006000000209708
and 3 Other Complaints

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High Court. In fact, the said suit has direct bearing in these complaints, it is
ostensibly because the complainants herein are also seeking similar sort of
reliefs in these complaints and the project is in fact not progressing. However,
in this case, it is difficult to ascertain whether these complainants are the
members of the said association formed in the project.

24. In addition to this, as stated by the complainants during the course of hearing
held on 29-11-2023, the other allottee of this project viz Mr. Hitesh Chovatia
(similarly placed complainant allottee) has also filed appeals before the
Hon’ble Appellate Tribunal and the same are still pending for adjudication
before the Hon’ble Appellate Tribunal. Hence, the complainants themselves
have prayed to hear these complaints after final decisions on the said pending
appeals.

25. Meaning thereby even the complainants have admitted the crucial fact that the
said pending appeals before the Hon’ble Appellate Tribunal have bearing on
these complaints filed by the complainants herein. However, in this case as on
date, the project is at a standstill and it is not progressing, although the Hon’ble
High Court has directed respondent herein to complete the project. It is
ostensibly because of various pending litigations before the Hon’ble High
Court. However, the project is now kept in abeyance by the MahaRERA till the
final disposal of the pending litigations filed in this project.

26. In such scenario, the decision on these complaints at this stage would not only
amount to prejudging the issue pending before the Hon’ble High Court as well
as before the Hon’ble Appellate Tribunal, but also it may lead to multiplicity
of proceedings.

27. In view of these facts and in the interest of natural justice, the following order
is passed: -


Complaint No. CC006000000209708
and 3 Other Complaints

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a) These complaints are adjourned sine die till final disposal of the pending
litigations before the Hon’ble Bombay High Court as well as before the
Hon’ble Appellate Tribunal.
b) The rights of the complainants being the allottees of this project shall
remained protected till the final decision on these complaints are taken by
the MahaRERA on merits.
c) Both the parties are directed to approach the MahaRERA after compliance
of the aforesaid direction at para (a) above.

(Mahesh Pathak)
Member – 1/MahaRERA