Complaint No. CC006000000303283
& 3 Other

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BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY
AUTHORITY, MUMBAI

1. Complaint No. CC006000000303283

1) Ritika Manoj Makhijani
2) Nidhi Manoj Makhijani


... Complainant/s

Versus

Ms/ Surana Construction


... Respondent
Alongwith

2. Complaint No. CC006000000303294

Jatin K Gandhi


... Complainant

Versus

M/s Surana Construction


... Respondent
Alongwith

3. Complaint No. CC006000000303293

1) Anil K Nebhnani & Ors
2) Vijay A Nebhnani


... Complainant/s

Versus

M/s Surana Construction


... Respondent
Alongwith

4. Complaint No. CC006000000303292

1) Vimla A Nebhnani & Ors
2) Anil K Nebhnani
3) Vijay A Nebhnani


... Complainants

Versus

M/s Surana Construction


... Respondent


MahaRERA Project Registration No. P51800012437


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

Ld. Adv. Lakshmi Murali appeared for complainants at (sr.nos. 1 to 4)
CA. Ashwin Shah appeared for the respondent.


Complaint No. CC006000000303283
& 3 Other

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INTERIM ORDER
(Order pronounced on Friday, 14th February 2025)
(Matter reserved for order on 19th November 2024)

(Through Video Conferencing)


1. The complainants above named have filed these 4 separate online complaints
before the MahaRERA on 14-11-2022 (all 4 complaints), mainly seeking
directions from MahaRERA, to the respondent – promoter, to handover the
possession of their commercial units along with amenities/occupancy
certificate and also to pay interest and costs for the delayed possession as
prescribed under the provisions of section 18 of the Real Estate (Regulation &
Development) Act, 2016 (hereinafter referred to as ‘RERA’), in respect of the
booking of their respective commercial units (hereinafter referred to as the
said units) in the respondent - promoter’s registered project known as “Tulsi
Chambers” bearing MahaRERA registration no. P51800012437, located at
Kurla, Dist. Mumbai Suburban (hereinafter referred to as the said project).

2. These complaints were clubbed together ( being filed with respect to the said
project) and heard by the MahaRERA on several occasion and the same were
finally heard on 19-11-2024 as per the Standard Operating Procedure dated 12-
06-2020 issued by MahaRERA for hearing of complaints through Video
Conferencing. Both the parties have been issued prior intimation of this
hearing. On the said dates of hearing, both the parties have appeared as per
their appearances recorded in the Roznamas and made their respective
submissions. The MahaRERA heard the submissions of both the parties as per
their appearances and also perused the available record.

3. After hearing the submissions of both the parties, the following Roznamas
were recorded in these complaints:-


Complaint No. CC006000000303283
& 3 Other

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i)
On 31-07-2024:
“The complainants are present. The respondent is absent. However, the
respondent has filed its reply on 22-01-2022 to the complaint raising the issue
of maintainability of these complaints on the ground that as the agreements
for sale were signed in MOFA regime, there is an arbitration clause
mentioned in clause no. 41 of the agreement for sale. Therefore, the
complainants may file a rejoinder on the said issue of maintainability of
these complaints because of the arbitration clause in their respective
agreements for sale. This may be done by the complainants within a period
of 4 weeks i.e.by 28-08-2024 along with written arguments. The respondent
may file a sur-rejoinder, if any and written arguments within a further period
of 4 weeks i.e. by 25-09-2024. These matters are adjourned to a suitable date
after 25-09-2024 for final arguments on the issue of maintainability of these
complaints. List the matter for next hearing on 16-10-2024.”

ii)
On 16-10-2024:
“Both the parties are present. Although the respondent has raised the issue
of maintainability of these complaints and filed a reply accordingly, the
complainants have not been able to file rejoinders to the said replies
although these matters were kept for arguments on the issue of
maintainability today. Therefore, the complainants are granted two weeks’
time i.e. till 30-10-2024 to file their rejoinder on the issue of maintainability
of this complaint along with written arguments. The respondent may file
written arguments within a further period of two weeks i.e. by 13th
November, 2024. Accordingly, these matters are adjourned to a suitable date
after 13-11-2024 for arguments on the issue of maintainability of these
complaints. List the matters for next hearing on 19-11-2024.”



Complaint No. CC006000000303283
& 3 Other

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iii)
On 19-11-2024:
“Both the parties are present. These matters were kept today for arguments
on the issue of maintainability of these complaints on the grounds that there
is an arbitration clause since the agreements for sale have been signed in the
MOFA regime. Accordingly, the respondent has raised the said objection in
January 2023 and the complainants have filed their rejoinder on the said
issue in October 2024. The respondent has pointed out to case law that the
Authority has held in a couple of matters that such arbitration clauses in
agreements for sale prior to the RERA would be applicable, in case of
disputes between the allottees and the promoter. However, the Hon’ble
Appellate Tribunal has deferred with the findings of the Authority and the
said matters are now before the Hon’ble Bombay High Court in 2nd appeal.
The complainants refute the contentions of the respondent on the ground that
as the project is registered with MahaRERA under the provisions of RERA,
as per Neelkamal

JUDGEMENT

of the Hon’ble Bombay High Court, any
complaint of allottees in a registered project, has to be adjudicated by the
MahaRERA irrespective of presence of arbitration clause in the agreements
signed under the MOFA regime, and hence, the MahaRERA should adjudicate
the prayers of the complainants for possession along with interest and
compensation for delay. Both the parties may file their written submissions
within a period of one week 26-11-2024. Accordingly, these matters are
reserved for order on the issue of maintainability of these complaints
suitably after 26-11-2024 based on the arguments of both the sides as well as
the reply, rejoinder and written submissions filed in these complaints. The
future course of action in these matters would be decided once such an order
is issued.”

4. Pursuant to specific directions issued by the MahaRERA, the respondent has
uploaded its written submissions on record of MahaRERA on 25-11-2024 ( in
all 4 complaints). The same has been accepted and taken on record. However,
despite directions, the complainants have failed to upload any further


Complaint No. CC006000000303283
& 3 Other

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submission on record of MahaRERA after 19-11-2024. The MahaRERA has
perused the available record.

5. In the present case, during the course of hearing, the respondent has raised
the issue of maintainability of these complaints, on the ground that in view of
the arbitration clause mentioned in the agreements for sale signed by these
complainants (prior to the commencement of the RERA), these complaints are
not maintainable under the provisions of the RERA.

6. Accordingly, both the parties have been heard on the said issue of
maintainability raised by the respondent and these matters were closed for
orders on the said issue of maintainability.

7. In the present case, as far as the aforesaid issue of maintainability of these
complaints raised by the respondent-promoter, the MahaRERA has perused
the recent

JUDGEMENT

passed by the Hon’ble Bombay High Court in its order
dated 25-10-2024 passed in Second Appeal No. 434 of 2023, wherein it is held
that “The dispute between the individual allottee and the promoter or the
dispute between the Association of the Allottees and the Promoter covered
under Real Estate Regulation and Development Act, 2016 is non-arbitral in
nature.” The Hon’ble Court further held that “The jurisdiction of Real Estate
Regulatory Authority established under Section 20 of the Real Estate
Regulation and Development Act, 2016 is not ousted, even if the agreement
between the promoter and the allottee contains arbitration clause.”.

8. In view of the aforesaid law laid down by the Hon’ble Court, the MahaRERA
is of the view that the said issue of maintainability raised by the respondent
does not survive and hence, the same stands rejected.

9. Consequently, these complaints are held to be maintainable under the


Complaint No. CC006000000303283
& 3 Other

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provisions of the RERA and the same need to be decided on their own merits
under the provisions of the RERA.

10. With these directions, the Registry of this bench is directed to list these
complaints for next hearing on 25-03-2025.

(Mahesh Pathak)
Member – 1/MahaRERA