Complaint No.: CC006000000303557


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

CORAM: Ravindra Deshpande, Member II, MahaRERA


COMPLAINT NO.: CC006000000303557

M/S. AS-SIMNA CONSTRUCTION …APPLICANT

In the matter between

1. SHRAVAN GANDHI

2. DIMPLE SHRAVAN GANDHI …COMPLAINANTS

Versus

M/S AS-SIMNA CONSTRUCTION
BUILDER DEVELOPERS …RESPONDENTS


MahaRERA Project registration No. P51900017724

24. 09.2025
(Date of Hearing: 16.07.2025)

Coram: Shri. Ravindra Deshpande, Hon’ble Member 2, MahaRERA

Adv. Ritu Shrivastav for Complainant
Adv. Kulsum Idrissi for Respondent

1. The Respondent (Applicant herein) has filed the present application dated

05. 10.2024 in
Complaint No. CC006000000303557
seeking directions from this
Authority to refund the entire amount received from the Complainant for the
subject flat, together with interest, in terms of Section 18 of the Real Estate
(Regulation and Development) Act, 2016.

In short, the contentions of the application are as follows:

2. It is submitted by the Applicant that the Complainant had originally filed the
captioned complaint seeking interest for delay in possession from December
2017 or from 01.01.2020 until possession is handed over, along with other
reliefs. At the outset, the Applicant has denied all allegations and claims in the
complaint but has, in the interest of the Complainant and the completion of the


Complaint No.: CC006000000303557


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project, decided to refund the monies paid, so that the interests of the other
allottees are not prejudiced.

3. The Applicant submits that although the project is physically completed, the
Occupancy Certificate is still pending due to reasons beyond its control, and
this Authority has already granted an extension of registration until 30.06.2025.
It is submitted that the unit allotted to the Complainant has been reserved for
the Competent Authority, MHADA, under DCPR Rules 33(7), and there are no
other unsold units available for allotment, as all flats in the project have been
sold. Further, it is pointed out that the unit had been mistakenly shown as
saleable in the approved layout plan, though it was in fact reserved for
MHADA. This error, described as a bona fide oversight without mala fide
intent, is being corrected by way of revision of the layout plan.

4. The Applicant highlights that the Covid-19 pandemic also gravely impacted
the progress of construction, causing lockdowns, reverse migration of
labourers, shortage of materials, price escalations, and defaults in payments
from allottees, all of which severely disturbed cash flows and delayed the
project. Despite these challenges, the project stands completed except for the
issuance of the Occupancy Certificate, and the Applicant presently has the
means to secure the OC but seeks to avoid further financial strain from
continued litigation.

5. It is further contended that under the Agreement for Sale, possession timelines
were subject to extension upon the occurrence of mitigating events, and hence
there is no contractual delay attributable to the promoter. However, to avoid
multiplicity of litigation and in the larger interest of the project and its allottees,
the Applicant has opted to refund the Complainant’s monies with interest as
per Section 18 of RERA. Reliance is placed on the

JUDGMENT

of the Hon’ble
Bombay High Court in Neelkamal Realtors Pvt. Ltd. vs Union of India (W.P. No.
2737/2017), which recognizes that where possession cannot be handed over for
reasons beyond the promoter’s control, a refund with interest is an appropriate
remedy.

6. Accordingly, the Applicant prays that this Authority be pleased to dispose of
the complaint by permitting the Respondent to refund the sums received from
the Complainant with interest under RERA and direct the Complainant to
execute all formalities and documents for cancellation of the registered
Agreement for Sale dated 31.12.2014 upon receipt of such refund.


Complaint No.: CC006000000303557


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7. The Complainant has filed a reply to the present application of the Respondent
dated 28.10.2024 and stated that the Complainants deny each and every
statement, contention, and allegation made by the Respondent in the present
application. The Complainants state that the application filed by the
Respondent is illegal, fraudulent, frivolous, and a sheer misuse of the process
of law.

8. The Complainants submit that there is no provision under the Real Estate
(Regulation and Development) Act, 2016, which permits the filing of such an
application. The Respondent has failed to disclose the specific provision under
which the application has been filed. Hence, the present application is not
maintainable and is liable to be dismissed at the threshold as it has been filed
only with the intent to delay and prolong the present proceedings.

9. The Complainants further submitted that the grounds raised by the
Respondent are baseless and unsustainable. It is also submitted that the subject
flat is reserved for MHADA under DCPR 33(7) and was mistakenly shown as
saleable, which is false, frivolous, and an afterthought. The Agreement for Sale
was duly registered in 2014, and after nine years, the Respondent cannot evade
responsibility by raising such belated and fraudulent pleas, particularly when
the present complaint is pending before this Hon’ble Authority.

10. The Respondent has suppressed material facts, including the fact that they had
demanded illegal cash payments from the Complainants. On the
Complainants’ refusal, an F.I.R. (Exhibit A) was lodged against the
Respondent. The application is thus filed with mala fide intent to harass the
Complainants. It is further submitted that, having executed a registered
Agreement for Sale, the Respondent cannot shirk their statutory obligation of
delivering possession. Any discrepancy in the sanctioned plans is entirely the
Respondent’s liability, and the Complainants cannot be made to suffer for the
Respondent’s fraudulent acts.

11. The plea of delay due to COVID-19 is irrelevant and untenable. The Agreement
was registered on 30.12.2014, and as per settled law, possession ought to have
been handed over within a reasonable period of three years. The project
completion date before the Authority was 31.12.2019. Both timelines fall prior
to the pandemic; hence, COVID-19 has no application in this case.

12. It is also submitted that the Respondent has also illegally sublet Flat No. 1804
and generated rental income therefrom despite the project being incomplete. A
police complaint was filed by the Complainants, and a Non-Cognizable
complaint (Exhibit B) was registered against the Respondent. The Respondent


Complaint No.: CC006000000303557


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has already handed over fit-out possession to several other allottees without
obtaining an occupancy certificate. These allottees are currently residing in the
project. The present application is thus a vindictive measure against the
Complainants, as they refused to make unlawful cash payments.

13. The Complainants further submit that the signature of the Respondent’s
signatory, Mr. Ashraf Ali Mohammed Qureshi, on the present application is
forged. Mr. Qureshi is in abroad, yet the application has been shown as
notarized. On inquiry, the Notary confirmed that verification was done only
through video call, which is an improper and unfair practice amounting to
fraud and perjury. The application is also defective and invalid since it is not
signed by the advocate for the Respondent. This further demonstrates that the
application is bogus, forged, and liable for strict penal action.

14. Therefore, the Complainant prays that this Hon’ble Authority to dismiss the
present application with heavy costs, initiate proceedings for revocation of
registration under Section 7 of the RERA Act for unfair trade practices and
impose a penalty.

15. On careful consideration of both the parties' submissions and pleadings, this
Authority is of the view that the Act provides remedies to an allottee under
Sections 18, but does not contemplate or empower a promoter to independently
move an application seeking directions for refund of monies to an allottee
during the pendency of a complaint filed by such allottee.

16. The Respondent has failed to disclose any provision of law under which the
present application has been preferred. The defence sought to be raised on
merits, namely the alleged reservation of the subject flat for MHADA, the plea
of force majeure due to Covid-19, or revision of sanctioned plans cannot be
entertained at this stage in a collateral proceeding and are issues to be
adjudicated in the main complaint itself.

17. It is further noted that the Agreement for Sale was executed in 2014, and the
committed possession timeline expired prior to the onset of COVID-19, thereby
rendering the plea of pandemic-related delays unsustainable. The attempt of
the Respondent to unilaterally seek cancellation of a registered Agreement for
Sale through this application is contrary to the statutory obligations cast upon
a promoter under Section 18 of the Act. I have gone through the section 18 of
RERA Act, the said section allows the allottees either to withdraw from the
project without prejudice to any other remedy available, at the same time it is
choice of allottee that if he does not intent to withdraw from the project, he is
entitle to claim interest for every month of delay, till handing over of the


Complaint No.: CC006000000303557


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possession, thus, section 18 gives choice to the allottees weather to withdraw
from the project and ask promoter to return the amount paid by him or
continue with the project and to claim interest for every month of delay till
handing over of the possession.

18. Therefore, in my opinion, it is purely a choice of the allottee either to withdraw
from the project and claim a refund or continue with the project and claim
interest for every month of delay, till the handing over of the possession. In
such circumstances, the request of the Applicant to allow the Respondent to
refund the amount obtained by the Respondent from the allottee, i.e,
Complainants, and to dispose of the present complaint cannot be allowed.
Hence in my considered opinion, the present application deserves to be
rejected; therefore, I pass the following order.


O R D E R

1. The Miscellaneous Application dated 05.10.2024 filed by the Respondent
stands rejected.

2. Cost in cause.


Ravindra Deshpande,
Member II, MahaRERA
Date:- 24.09.2025
RAVINDRA
PADMAKARA
O DESHPANDE
Digitally signed by
RAVINDRA PADMAKARAO
DESHPANDE
Date: 2025.09.24 16:47:48
+05'30'