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

Complaint No. CC006000000374922

Mr RAJNEESH & Mrs. ABILASH TIWARI ​
...COMPLAINANT

Versus

ADHIRAJ CONSTRUCTIONS PRIVATE LTD​​
...RESPONDENT

MahaRERA Project Registration No. P52000004189

O R D E R
(22.04.2025)
(Date of Hearing: 25.03.2025)

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

Adv. Parth Chande is present for Complainants.
Adv. Abir Patel is present for Respondent.

The Respondent has filed the present application requesting to dispose
the present complaint by allowing the Respondent to refund the sum of
Rs. 56,79,479/- received from the Complainants and requesting to direct
the Complainants to simultaneously upon receipt of the refund, as stated
in above, complete all formalities and sign all documents for cancellation
of Agreement for Sale dated 17/02/2018.
In short facts of the application is as a under:

1. ​ It is the contention of the applicant/ Respondent, that the
Complainants have filed present complaint seeking interest on
delay in possession from 31/12/2021 until possession has been
handed over to the Complainants and compensation. In the
interest of both the Complainants and the completion of the
project, the Respondent has decided to return money received
from the Complainants so that the interest of the remaining 210
allottees don’t suffer the fallout of this complaint. The project of

the Respondent has faced a lot of obstacles. On 13/03/2024 on the
basis of the application of the Respondent for extension, this
authority has granted the extension to the said project till
30/06/2025. The Complainants appear to be in need of possession
at earliest, for that to be achieved, the Respondent needs to be
allowed to complete the project. Funds are needed for the same.
The Complainants cannot desire that they be put in possession of
the subject flat and draw out the money meant for completion of
the project in the form of interest and compensation. The proposal
made herein is structured by weighing the interest of other
allottees of the subject project and who are awaiting possession
and the claim of the Complainants by balancing the two.
According to the Respondent, the Respondent will assist the
Complainants for claiming the refund of stamp duty and
registration charges paid upon when they would execute the Deed
of Cancellation.

2. ​ The Respondent further stated that, the Respondent would have
loved to give the Complainants their flats fully completed, but
owing to the stance adopted by the Complainants, this application
for refund has become necessary otherwise it would be
detrimental to the project’s completion and the interest of the
remaining 210 allottees who wants to take possession. The
Respondent has relied on the

JUDGEMENT

of Hon’ble of Bombay
High Court from the case of Neelkamal Realtors Pvt. Ltd. & Anr
v/s Union of India & ors, wherein it was held that sec. 18 of the
RERA Act, provides for a situation where the promoter is unable
to complete or hand over the possession for no fault of his own, it
would be open to such promoter to return the money to the
allottees with interest thereby stopping its liability for interest that
is to be paid till handing over possession.

3. ​ The Complainants have filed their reply and resisted that
application.
The
Complainants
opposed
the
application
contending
that
present
application
is
nothing
but and
afterthought which struck the mind of the present Respondent and
is a lame attempt to evade from its own obligations. The
Respondent bluntly wants to now refund the principal amount

without considering the escalation cost, inflation, loss of
opportunity, rent/interest borne by the Complainants and is trying
to shirk of its shoulders of its responsibility to complete the project,
obtain Occupancy Certificate, handover possession to the
Complainants as well as pay interest for the delayed period.
According to the Complainant, it is the Complainants prerogative
as per section 18 and not of the Respondent to choose, whether or
not they intent to take the refund. The Respondent is clearly trying
to hide its own mistakes behind the well-being of other allottees of
the project and the Respondent cannot use this as a shield which is
further throwing present complainants as prey to the injustice. It is
the contention of the Complainants that in the light section 18 (1)
of RERA Act, it is clear that the said section unequivocally grants
the allottees the right to choose between claiming possession with
interest or seeking a refund with interest. This decision rests solely
with the allottee. According to the Complainants the obstacles
faced by the Respondent herein are not on account of
Complainants and the Complainants too faced hardships while
arranging the money to be paid to the Respondent at various
stages and that the Complainants have never complained about
the same.

4. ​ According to the Complainants, if the Respondent is concerned
about the cash flow, then, the Respondent cannot offer the refund
since the refund along with interest would be much higher as
compared to the possession along with the interest. The
Complainants have been waiting more that 12 years now and such
derogatory statements that complainants are in hurry must be
refrained and dealt by the authority with heavy hands. The
proposal of the Respondent is structured by weighing interest of
the Respondent only and that it is a mere afterthought by the
Respondent, since the Respondent is not keen to pay the righteous
interest to the Complainants as they are entitled as per the law. The
promoter cannot use the issues faced by other allottees to deflect
from their own responsibilities and liabilities. It is a settled
principle of law that one cannot be penalized for the wrong job of
another. The present application seems more of a mockery of the
homebuyer’s rights and misuse of judicial framework. The

Complainants are not desires of withdrawing from the project and
are praying for possession along with interest and compensation.

5. ​ According to the Complainants the promoter is genuinely
attempting to prevent 210 allottees from any adverse impact but
the Respondent promoter at the same time is discriminating
against the Complainants, who also form part of such allottees.
The Respondent is the promoter as per section 2 (zk) of the act and
that in light of which the Respondent is liable to pay interest and
compensation to the Complainants herein and no reason shall
allowed the Respondent to evade the same. The Respondent has
explicitly stated their intention to complete the project. Given this
commitment
to
completion,
forcing
a
refund
upon
the
Complainants is not justified. The Complainants relied upon the
case Neelkamal Realtors Suburban Pvt Ltd V/s Union of India,
the Hon’ble Bombay High Court in the para no. 257 observed that,
if the allottee does not intent withdraw from the project he shall be
paid by the promoter interest for every month's delay till handing
over of the possession, the Complainants lastly requested for the
rejection of the application.

6. ​ The matter was lastly listed on 25/03/2025, the advocates of both
the parties were present, it is mentioned in the said roznama that
both parties were directed to upload their written arguments on
the application filed by the Respondent on or before 20/02/2025.
The Advocate of the Respondent submitted that two or three days
time may be granted to the Respondent to upload the written
arguments. On that day advocate of the Complainants to
submitted that the said
said application uploaded by the
Respondent may be reserved for order. Considering the
submissions of both the parties time till 01/04/2025 was granted
to the Respondent to upload the written arguments on the
application filed by the respondent for the refund of the amount.

7. ​ The Complainants has uploaded the written arguments on
MahaRERA website on 21/03/2025, the Complainants reiterate the
statements and averments from their reply to the application dated
02/09/2024. I have gone through the written arguments uploaded

by the Complainant. The Respondent/Applicant also uploaded
written arguments on MahaRERA website, the same is uploaded
on 16.04.2025 though time till 01/04/2025 was granted to the
Respondent to upload the written arguments. I have gone through
the same. The Respondent/Applicant reiterate and repeated the
contentions from the application during written arguments.

8. ​ The
Respondent/Applicant
has
filed
present
application
requesting to dispose of the present complaint by allowing the
Respondent to refund the amount obtained by the Respondent
from the Complainant. Admittedly, the Complainants opposed
this application and contended that, section 18 of the RERA Act
unequivocally grants the allottees right to choose between
claiming possession with interest or seeking refund with interest.

9. ​ 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 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.

10. ​The advocate of the Respondent in support of application relied
upon the

JUDGEMENT

of Hon’ble Bombay high court in the case of
Neelkamal realty vs Union of India and Ors. The Hon’ble High
Court held that in genuine cases considering the difficulties faced
by the developer in the timely completion of a project, courts must
take in account such mitigating factors and mould reliefs so that
the allottees rights are protected and the equities are balanced to
give a fair deal to the developers as well. In the present case, the
Complainants asking possession of the flat in question, he does not
intend to withdraw from the project and claiming interest for
every month of delay. The Complainants paid Rs. 56,79,479/- to
the Respondent/ Applicant. Considering the provisions of section

18 The Real Estate (Regulation and development) Act 2016, in my
opinion it is purely choice of the allottee either to withdraw from
the project and claim 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
Respondent/Applicant to allow the Respondent to refund the
amount
obtained
by
the
Respondent
from
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 following order.

ORDER

1. ​ The application is rejected.

2. ​ Cost in cause.


Ravindra Deshpande
Member-II, MahaRERA
RAVINDRA
PADMAKARAO
DESHPANDE
Digitally signed by
RAVINDRA PADMAKARAO
DESHPANDE
Date: 2025.04.22 13:28:25
+05'30'