CC006000000197206 and CC006000000303685
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BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY, MUMBAI

1. Complaint No. CC006000000197206

Mansuri Sharifulla Khan &
Najma Sharifulla Khan


.... Complainants

Versus

Sai Enterprises
Super Construction
…. Respondents
Along with

2. Complaint No. CC006000000303685

Divya Nikhil Killa


.... Complainant

Versus

M/s. Sai Enterprises
Mr. Basantraj Meghraj Sethia
M/s. Sethia Infrastructure Pvt. Ltd.
Mr. Harshraj Basantraj Sethia
M/s. Super Construction
Mrs. Najma Haroon Malkani
Mr. Alamgir Ali Mohamed Malkani
M/s. Frisson Finance & Investment Pvt. Ltd.
…. Respondents


MahaRERA Project Registration No. P51800015798


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

Ld. Adv. Satish Dedhia appeared for the complainants at sr.no. 1.
Ld. Adv. Sachin Singh appeared for the complainant in sr.no. 2 .
Ld. Adv. Abir Patel - appeared for respondent no. 1- M/s. Sai Enterprises.
None appeared for the other respondents.


INTERIM ORDER


(Friday, 05th July 2024)

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(Through Video Conferencing)


1. The complainants above named have filed these 2 separate online
complaints before the MahaRERA on 10-11-2021 (Sr. No. 1) and on 26-12-
2022 (Sr. No. 2) mainly seeking directions from MahaRERA to the
respondents to execute an agreement for sale and also to pay interest and
compensation for delay under sections 13 and 18 of the Real Estate
(Regulation & Development) Act, 2016 (hereinafter referred to as ‘RERA’)
in respect of the booking of their respective flats (as mentioned in the
below mentioned table at para 5) in the respondent no.1’s registered
project known as “Sethia Imperial Avenue” bearing MahaRERA
registration No. P51800015798 located at Bandongri, Malkani Estate,
Malad(East) District- Borivali, Mumbai.

2. These complaints were clubbed together being filed with respect to the
same project and the same were heard by the MahaRERA on 21-11-2023
and the same were heard finally on 21-02-2024 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, 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 arguments of the parties, the following Roznama was
recorded in these complaints on 21-11-2023 and 21-02-2024:-
i)On 23-11-2023:-“ Both the parties are present. The complainants have
filed their rejoinder to the reply of the respondent no. 1. Therefore, the

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respondent no. 1 may file its sur-rejoinder, if any along with its written
arguments within a period of 4 weeks i.e. by 19-12-2023. Further 2 weeks’
time i.e. till 02-01-2024 is granted to These matters are adjourned to a
suitable date after 02-01-2024 for final arguments by both the sides. List
these matters for next hearing on 21-02-2024.
As it transpired during the hearing, the MahaRERA has pointed out to the
orders of the Authority dated 20-02-2022 in the said project with regard
to the similarly placed complainants and the respondent no. 1 is expected
to include the distinction of these matters with the matters which
were decided by the MahaRERA in its sur-rejoinder / written arguments.
Further, the complainant at Sr. No. 3 has also pointed out to the order of
the Hon’ble Appellate Tribunal passed in appeal no. AT006000000052870
dated 17-07-2023 and the said order has been uploaded by the said
complainant in the complaint. Therefore, the respondent no. 1 may refer
to the said order also and distinguish these complaints accordingly.”

ii) On- 21-02-2024:- “The complainants are present. The respondent no. 1
is also present. As it transpired during the hearing, the Hon’ble Appellate
Tribunal is already seized of the matter of the similarly placed
complainant-allottee viz Mrs. Sangita Ravi Punjabi in appeal No.
AT006000000053426 in respect of this project. The respondent no. 1 herein
has already filed its reply and sur-rejoinder and the complainants have
filed rejoinder. Therefore, the respondent no.1 may file its written
arguments within a period of two weeks i.e. by 06-03-2024. Further one
week’s time i.e. till 13-03-2024 is granted to the complainants to file their
written arguments in the complaints. An order dated 16-01-2024 in
review applications filed by the respondent no.1 was also issued in the
matters of similarly placed complainants in this project. Accordingly,
the complainants have prayed for interim reliefs, which according to
them, have been granted in the said orders by the MahaRERA. Both the

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substantive issues as well as issue of interim reliefs will be decided once
the

FINAL ORDER

in these complaints are issued. In view of the above, both
these matters are reserved for orders suitably after 13-03-2024 based on
the arguments of both the sides as well as reply, rejoinder, sur-rejoinder
and written arguments filed in the complaints and case laws uploaded in
these complaints.”

4. Pursuant to the aforesaid directions issued by the MahaRERA, the
complainants in complaint at Sr. No. 1 have uploaded their additional
written submissions on record of MahaRERA on 02-03-2024. The
respondent no. 1 has also uploaded its written submissions on record of
MahaRERA in complaint at sr. no. 1 on 16-04-2024. Further, in complaint
at Sr. No. 2, the respondent no. 1 has uploaded its written submissions on
record of MahaRERA on 20-04-2024. The said submissions are accepted
and taken on record. The MahaRERA has perused the available record.

5. The complainants by filing these online complaints have prayed for the
said reliefs as mentioned in the table below. The information provided by
them in their respective online complaints are as follows –

Complaint No.
Name
of the
Complainant
Flat Details/
Total
Consideration /
Consideration
Paid
Allotment
letter

Date of
possession
Relief

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1. CC006000000197206
Mansuri Sharifulla Khan
& Najma Sharifulla Khan
Flat No.1104
(Allotment
Letter Flat No.
Mentioned As
1104-D)
Rs. 5142500/-
Rs.38,80,250/-

Earlier
allotted
503 - B
25-09-2013 –
allotment
letter

Possession
date
not
mentioned.
i)to
execute
formal
agreement for sale as per
the terms of the Allotment
Letter;
ii)to
form
the
society and handover the
management; iii) not to
demand or collect any
other amount or charges
from
allottees
as
per
provision of section 11 4
(d), 11 (4) (g) of the RERA;
iv) to pay outstanding
loans make the title of the
project; penalty ( so many
prayers to adjudicating
officer as well )

2. CC006000000303685
Divya Nikhil Killa
Flats N-902 & N-
903 in the C-
Wing

Rs.28,01,000/-
each
Paid
–
Not
mentioned
11-05-2012

Possession
date
not
mentioned.
i)Execution of agreement
for sale, ii)possession, iii)
interest and compensation
for delay.

6. It is the case of the complainants herein, who by filing these two separate
complaints, have mainly sought reliefs under sections 13 and 18 of the
RERA by virtue of the aforesaid allotment letter issued by the erstwhile
promoter viz M/s. Super Construction (erstwhile promoter). Admittedly,
after commencement of the RERA, the respondent no. 1 viz M/s. Sai
Enterprises (new promoter) has registered this project with the
MahaRERA as a new project under the provisions of the RERA. The new

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promoter has contested these complaints by filing its reply on record of
MahaRERA.

7. However, in the present case, as transpired during the course of hearing
that in this particular project the Ld. Erstwhile Member-1/MahaRERA has
passed two distinct orders in the matters of other similarly placed
complainants filed by the other complainant-allottees. Admittedly, the
said complainant-allottees have also sought similar reliefs under sections
13 and 18 of the RERA.

8. However, while deciding the said earlier complaint bearing no.
CC006000000057896 filed by one Mrs. Sangeeta Punjabi, the Ld. Erstwhile
Member-1 /MahaRERA has passed an order on 03-08-2021. The relevant
portion of the said order reads as under:-
“37 . The MahaRERA has noticed that the allotment letter has been issued
to the complainant in the year 2010. However, till filling of this complaint,
the complainant has not taken any action against the respondent no. 1,
with whom she has privity of contract and to whom she has paid money
even though the agreement for sale was not executed for such a long time.
Hence, the terms and conditions of the development agreement dated
17/10/2017 are binding upon the parties. Keeping silent for such long
period of 9 years, the complainant at a belated stage has approached
MahaRERA seeking relief under section 13 of the RERA which seems to be
hopelessly time barred. The complainant has not submitted any proof on
record of MahaRERA to justify the said delay

38. the present case, the said registered development agreement dated
17/10/2017 provides two options / choices to the allottees/ investors either
to take back their money paid to the respondent or to continue in the

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project as per the aforesaid terms and conditions mentioned in clause no.
11 of the said development agreement. Hence, in absence of any
documentary proof with regard to the privity of contract with the
respondent no. 8, the MahaRERA cannot go beyond the liabilities taken
over by the respondent no. 8, of the respondent no.1 by executing the
development agreement dated 17/10/2017
Order

39. In view of the aforesaid facts, the MahaRERA directs both the parties
to act in accordance with the terms and conditions of the said
development agreement dated 17/10/2017 and the respondent no. 8 is
directed to either refund the entire amount to the complainant along with
interest or to execute the registered agreement for sale with the
complainant as per the provisions and agreed terms and conditions of the
development agreement.

40. With these directions, the complaint stands disposed of.”

9. However, being aggrieved by the aforesaid order dated 03-08-2021 , the
said complainant allottee viz Mrs. Sangeeta Punjabi has preferred an
Appeal No. AT006000000053426 before the Hon’ble Appellate Tribunal on
25-10-2021. The said Appeal is pending for consideration before the
Hon’ble Appellate Tribunal.

10. In the meantime, the other 4 complaints bearing nos. i)CC006000000078286
(Ankush
Jindal),
ii)CC006000000078287
(Sahil
Jindal),
iii)
CC0060000000192229 (Sandesh Nalawade) and iv) CC0060000000090006
(Shweta Akella) filed by the other similarly placed complainant-allottees
were heard and decided by the Ld. Erstwhile Member-1/MahaRERA vide
a common order dated 23-02-2022 (in sr. nos. (i) and (ii) ) and on 28-02-
2022 (in sr. nos. (iii) and (iv)). Vide the said common orders, the following

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directions were issued :-
“15. In the year 2017, when the subsequent development agreement was
entered into between the respondent no. 5, respondent no. 6 and 7 and
respondent no. 1, the status of the allottees who had booked their flats
were shown and taken into consideration in Annexure VII attached to the
said registered development agreement and the names of the present
complainants were also reflected in it. Obviously, it’s evident from the
said development agreement dated 17/10/2017, that the right of the
allottees who had booked their flats/ units had been recognised and the
respondent no. 1 while entering into the said development agreement has
accepted the liability of the respondent no. 5 and it is revealed from the
clauses nos. 10, 11 & 12 of the registered development agreement dated.
17/10/2017, which reads as under:
“Clause 10: That it is mutually agreed and understood between the first
developer and second developer that with effect from 1st April 2016, the
first developer in consultation with the second developer will settle all
the claims of all the investors as per the list amended herewith as
“Annexure VII”, herein referred to as “the list to whom they have given
allotment in writings of their respective investments or otherwise.” The
funds as may be required for such settlements ____ as defined in clause
4(a) will be provided by the second developer along with any additional
amount payable to them as may be settled with the second developer and
such investor with consultation of the first developer. Such claims shall
be settled by the second developer within period of 12 months from the
date of this deed and that the second developer shall provide proof of
payment settled to the first developer.”
“Clause 11: It is agreed by the parties hereto that in the event the investors
of the first developer as per list announced herewith desire to continue of
his/her/their investment with the second developer, then the balance

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receivable consideration and all other charges under the MOFA shall be
receivable by the second developer on such terms and conditions which
may agree upon between such investors and the second developer and
further writing, MOU and agreement will be executed between the second
developer. It is agreed, admitted and confirmed by the second developer
that the owners/ first developer or their nominees has made payment of ₹
21,69,500 /- for such settlement on behalf of second developer and that the
second developer shall reimburse the same to the owners/ first developer
or their nominees or confirmation of the same on execution of this
agreement. The second developer do hereby agree and undertake to
indemnify and keep indemnified the owner/ first developer including their
respective heirs, executors, administrators and/ or successors against any
loss, damage, fine, penalties, legal proceedings and expenses that may be
suffered by, imposed on or taken against the owners/ first developer by
any of the investors/ creditors mentioned in Annexure VII.”
“Clause 12: The owners/ first developer hereby confirms and record that
there are no other investors save and accept shown in investors list being
Annexure VII hereto and the first developer further undertakes that if any
investor left or whose names is not in the list shall be settled by the first
developer only at their own cost and expenses.”

16. On perusal of documents submitted on MahaRERA website by the
respondent no. 1, it appears that the respondent no. 5 is not party to this
project under the present name. However, the entire FSI of the previous
project has been sold by the erstwhile developer, i.e. respondent no 5 to the
present promoter or respondent no 1. Moreover, the money paid by the
allottees/investors including the present complainants was utilised by the
erstwhile developer or respondent no 5 for the construction of six
buildings. Hence, the stake of complainants in the project remains
undisputed and can’t be denied. The new developer (respondent no 1) has
shown the development related permissions taken by the earlier developer

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while registering the present project. Only the project name and the
developer have changed. Furthermore, the aforesaid clauses of the
development agreement (supra) clearly recognise the rights of the
complainants as investors or allottees in the project land. Both the
promoters have accepted all the liabilities of the complainants by virtue
of the development agreement dated 17-10-2017. Therefore, the rights of
the complainants are very well protected in the said development
agreement.

17. The sum and substance of the above discussion in light of the
development agreement signed and executed between the respondent no. 5
(erstwhile promoter) and the respondent no. 1 (new promoter) dated 17-
10-2017 takes one to the conclusion that the rights of these complainants
as allottees are very well recognised and accepted by both the promoters
and accordingly, their names along with flat numbers and payment made
by them were included in the said development agreement. Further, by
signing the said development agreement, the respondent no. 1 viz the new
promoter has taken over all the liabilities of the erstwhile promoter.
Moreover, the said development agreement was signed and executed on
17-10-2017 after commencement of RERA and the complainants are not
signatory of the said development agreement dated 17-10-2017. Hence, the
MahaRERA feels all the conditions thereof can’t be enforced upon the
complainants. This document only establishes that that the complainants
were allottees of this project on the date of commencement of RERA on
01-05-2017. Hence, the MahaRERA is of the view that the respondent no.
1 by taking over the project kept incomplete by the respondent no. 5 cannot
deny the liabilities of the respondent no. 5. Needless to states here that by
virtue of the development agreement dated 17-10-2017 all liabilities of the
respondent no. 5 passed on to the respondent no. 1.

18. Further, after commencement of RERA, the respondent no. 1 new
promoter started terminating the allotment letter issued by the

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respondent no. 5 by issuing termination letter to the said “investors/
allottees” of the respondent no. 5 including the present complainants. It
also shows that till the year 2019, the complainants were allottees of this
project and by treating them as an allottee the said termination was done
by the respondent no.1. However, since the said termination was done
without citing any valid reasons, it has no substance in the eyes of law.
However, if these allotment letters issued in favour of the complainants
would have been terminated prior to commencement of RERA, in that
event, it might have been difficult for the complainants to claim their
rights as an allottees in this project. This crucial aspect has not been
brought to the notice of MahaRERA in the earlier case decided by the
MahaRERA in complaint filed by the other allottee of this project.

19. . In view of the aforesaid facts, the MahaRERA directs that the rights
of the complainants as allottees of this project stands protected and hence
it is held that they are entitled to seek reliefs under the provisions of
RERA.

20. As far as claim agitated by the complainants for interest for the
delayed possession under section 18 of the RERA, the MahaRERA is of the
view that there is no agreement for sale showing any agreed date of
possession and hence the complainants are not entitled to seek interest for
the delayed possession under section 18 of the RERA. Hence, their claim
for interest stands rejected.

21. Considering these facts, the respondent no. 1 is directed to execute the
registered agreements for sale with the complainants as per the provisions
of section 13 of the RERA within a period of 30 days from the date of this
order.

22. With these directions, both the complaints stand disposed of.”

(Note in orders dated 28-02-2022 passed in complaints at sr. nos. (iii) and
(iv) similar observations have been made).

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11. However, being aggrieved by the aforesaid two separate common orders
dated 23-02-2022 and 28-02-2022, the new promoter had filed 4 separate
review applications in the form of fresh complaints bearing nos.
CC006000000220955,
CC006000000220958,
CC006000000220959
and
CC006000000220961 before the MahaRERA on 25-04-2022 seeking review
of the said common orders passed by the Ld. Erstwhile Member-
1/MahaRERA in the original complaints filed by the said complainant
allottees. Under Regulation 36 of the MahaRERA (General) Regulation,

2017. 12. In the said 4 review applications, the MahaRERA has passed a common
order on 16-01-2024. The said order reads as under: -

17. “In this regard, it is pertinent to note that there are two distinct orders
passed by the MahaRERA in this particular project in the matter of
similarly placed complainant allottee viz Ms. Sangeeta Punjabi. In the
said
complaint no. CC006000000057896
, the Ld. Erstwhile Member -1
passed an order on 03-08-2021 and dismissed the said complaint on the
ground of privity. Admittedly the said order in this project dated 03-08-
2021 is subject matter of an appeal bearing no. AT006000000053426 filed
before the Hon’ble Appellate Tribunal by the similarly placed allottee viz
Ms. Sangeeta Punjabi.

18. Be that as it may, on bare perusal of the submission made by the
applicant -promoter in these review applications, it appears that the
applicant -promoter has agitated similar issues again as raised by him
in the complaints filed by these respondent-allottees vide which the said
impugned orders came to be passed. Further, from these rival submissions
made by both the parties and before going into the merits of the earlier
order passed by the Ld. Erstwhile Member-1/ MahaRERA, the only issue

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MahaRERA has noticed in the impugned orders dated 23-02-2022 (sr. nos.
1 and 2) and 28-02-2022 (in sr. nos. 3 and 4), that fair opportunity of
hearing was given to the applicant -promoter. Accordingly, the
applicant-promoter appeared for the said hearings and argued the
matters at length by citing various clauses of the said development
agreement signed by and between the applicant promoter and the
erstwhile promoter. Hence, now the applicant-promoter cannot contend
that no opportunity has been granted to him before passing the said
orders.

19. Further, the said orders clearly record that the applicant -promoter has
taken over the liability of the erstwhile promoter by signing the said
development agreement as the names of these respondent allottees are
listed in the said development agreement. Hence, the applicant-
promoter cannot term it as an error apparent on the face of the record for
the findings given in the said orders for which the applicant-promoter
can seek review of the same as it is a well-reasoned order passed by the
Ld. Erstwhile member-1/MahaRERA. Moreover, the applicant-promoter
has pleaded the grounds of appeal which are to be agitated before the
Hon’ble Appellate Tribunal and hence the same cannot be taken into
consideration by the MahaRERA while deciding these review
applications within the ambit of section 39 of the RERA and Regulation
36 of the MahaRERA (General ) Regulation, 2017.

20. In addition to this, the applicant-promoter has neither brought any new
fact on record of MahaRERA to seek review of the said order nor has
shown any error apparent in the said orders as contemplated in
Regulation 36 of the MahaRERA (General) Regulation ,2017 and section
39 of the RERA. Hence, the MahaRERA is not inclined to grant any reliefs
to the applicant in these review applications. Needless to state here that

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whatever order which would be passed by the Hon’ble Appellate Tribunal
in the said pending appeal no. AT006000000053426 filed by the allottee
Ms. Sangeeta Punjabi would be binding upon all the parties concerned
including the MahaRERA.

Consequently, these 4 review applications stand dismissed for want of
merits.”

13. However, in the present case on bare perusal of the available record, the
MahaRERA has noticed that the said new promoter being aggrieved by
the aforesaid common order dated 16-01-2024 has filed the appeals
bearing nos. AT006000000214961 (on 24-02-2024), AT006000000245176
(10-05-2024), AT006000000275236 (11-06-2024) and AT006000000235067
(on 28-03-2024) before the Hon’ble Appellate Tribunal. The said appeal
is sub-judice before the Hon’ble Appellate Tribunal.

14. During the course of hearing, the complainants allottees have prayed for
similar order in these complaints passed by the Ld. Erstwhile Member-
1/MahaRERA on 23-02-2022 and 28-02-2024. However, the new
promoter has mainly contended that the said orders are under
consideration before the Hon’ble Appellate Tribunal.

15. Be that as it may, in the present case, as stated hereinabove, there are two
distinct orders which seem to have been passed in this project, in the
matters of similarly placed complainants. No doubt that the very first
order dated 3-08-2021 passed by the MahaRERA, which is challenged by
the said complainant allottee has bearing in the other 4 complaints
subsequently decided by the MahaRERA vide an orders dated 23-02-
2022 and 28-02-2022 meaning thereby, if the said order is set aside by the

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Hon’ble Appellate Tribunal, in that event the subsequent orders dated
23-02-2022 and 28-02-2022 would stand confirmed and vice versa.

16. Admittedly, both these orders are under consideration before the
Hon’ble Appellate Tribunal and hence, the decision on these two
complaints at this stage would amount to prejudge the issue pending
before the Hon’ble Appellate Tribunal and it may also lead to
multiplicity of the proceedings.

17. In view of these facts and in compliance of principles of natural justice,
the following order is passed:-
a. The present complaints are adjourned sine die till final disposal
of the pending appeal no. AT006000000053426 filed by Mrs.
Sangeeta Punjabi before the Hon’ble Appellate Tribunal.
b. However, liberty is granted to the complainants to approach
MahaRERA after final disposal of the said pending appeal if
need be.


(Mahesh Pathak)
Member – 1/MahaRERA