Complaint No. CC006000000197412
and 8 other Complaints

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Page 1 of 40
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BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY
MUMBAI

1. Complaint No. CC006000000197412

1. Ravalnath Keshav Gavandi

2. Smita Gavandi


... Complainants

Versus

1. Omkar Realtors & Developers Pvt. Ltd.

2. Era Developers


... Respondents
Along with

2. Complaint No. CC006000000197972

1. Mr Pankajkumar Shantilal Mehta and

2. Mrs Surekha Pankajkumar Mehta


... Complainants

Versus

1. Era Realtors Pvt Ltd

2. Omkar Realtors & Developers Pvt Ltd


... Respondents
Along with

3. Complaint No. CC006000000199339

Rasshmi Verma


... Complainant

Versus

1. M. Era Realtors Pvt. Ltd. and

2. M. Omkar Realtors and Developers Pvt. Ltd.


... Respondents
Along with

4. Complaint No. CC006000000209351

Nilesh Brijraj Singh and Bharat Nilesh Singh


... Complainants

Versus

1. M. Era Realtors And

2. Omkar Realtors And Developers Private Limited

... Respondents
Along with


Complaint No. CC006000000197412
and 8 other Complaints

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5. Complaint No. CC006000000251505

Abhilasha Mohan Motwani


... Complainant

Versus

Era Realtors Pvt Ltd


... Respondent
Along with

6. Complaint No. CC006000000292766

1. Mr Tushar Kanta Pattanayak

2. Ms Rachna Rekhi

3. Mrs Manpreet Rekhi nee Manpreet Tushar Pattanayak
... Complainants

Versus

1. Era Realtors Pvt Ltd

2. Omkar Realtors & Developers Pvt Ltd


... Respondents
Along with

7. Complaint No. CC006000000375073

Harshit Deepak Thakkar


... Complainant

Versus

Era Realtors Pvt. Ltd.


... Respondent
Along with

8. Complaint No. CC006000000396775

1. Jigar Jayesh Shah

2. Mrs. Neena Jayesh Shah

3. Mrs. Disha Jigar Shah


... Complainants

Versus

1. M. Omkar Realtors & Developers Private Limited

2. Era Realtors Pvt. Ltd


... Respondents
Along with

9. Complaint No. CC006000000397270

Dipti Mukesh Gupta


... Complainant

Versus

Complaint No. CC006000000197412
and 8 other Complaints

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Page 3 of 40
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1. Era Realtors Private Ltd

2. Omkar Realtors Private Limited


... Respondents

MahaRERA Project Registration No. P51800010463


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

Ld. Adv. Khevana Dagli appeared for the complainant at Sr. No. 1.
Ld. Adv. Godfrey Pimenta appeared for the complainants at Sr. No. 2 and 6.
Ld. Adv. Rubin Vakil appeared for the complainants at Sr. No. 3 and 4.
Ld. Adv. Muazma Ansari appeared for the complainant at Sr. No. 5.
Ld. Adv. Vinod Shah appeared for the complainant at Sr. No. 7.
Ld. Adv. Shivangi Dixit appeared for the complainant at Sr. No. 8.
Ld. Adv. Anosh Sequeira appeared for the complainant at Sr. No. 9.
Ld. Adv. Namrata Powalkar appeared for the respondent-promoter/s.

ORDER
(Friday, 26th April 2024)

(Through Video Conferencing)


1. The complainants above named have filed these 9 separate online
complaints on 07/07/2021 (serial no. 1), 12-08-2021(serial no. 2), 08-12-
2021 (serial no. 3 ), 09-12-2021 (serial no. 4), 18-06-2022 (serial no. 5), 21-09-
2022 (serial no. 6), 01-04-2023 (serial no. 7), 25-07-2023 (serial no. 8) and 31-
08-2023 (serial no. 9) before the MahaRERA seeking directions from
MahaRERA to the respondents to hand the possession of their respective
flats along with interest, compensation for mental agony and cost as
prescribed under the provisions of the Real Estate (Regulation &
Development) Act, 2016 (hereinafter referred to as ‘RERA’) in respect of
the booking of their respective flats/units (as mentioned in the table
below) in the respondent - promoter’s registered project known as “Alta


Complaint No. CC006000000197412
and 8 other Complaints

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Monte and Signet” bearing MahaRERA registration No. P51800010463
located at Malad (East), Mumbai (“said project”).

2. These complaints were clubbed together and the same were heard on
several occasions and the same were finally heard on 26-12-2023 along with
other connected complaints filed with respect to this project 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 and they were also informed
to file their written submissions if any. Accordingly, both the parties
appeared and made their submissions. The MahaRERA heard the
arguments of both the parties and also perused the available records.

3. After hearing the arguments of both the parties, the following Roznama
was recorded in these complaints (along with other connected
complaints)-
“Both the parties are present.
The respondent has filed its replies to these complaints and the complainants
have also filed rejoinder. The complaint at Sr. No. 24 (CC006000000397512) is a
cross complaint filed by the promoter against the complainant - allottee in Sr.
No. 7 (CC006000000209687).
The details of the flat booked, date of agreement for sale, date of possession as
per the agreement for sale (including the grace period), total consideration and
consideration paid are as per the table given below -

Sr.
no.
Flat
No.
Date of
Agreem
ent for
Date
of
possession as
per AFS +
Total
Considerat
ion
Total
considerati
on paid


Complaint No. CC006000000197412
and 8 other Complaints

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Page 5 of 40
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Sale
(AFS)
(grace
period)
3
B/12
07
21/12/2
017
June 2019 +12
months
Rs.1,87,97,
200/-
Rs.1,41,20,
131/-
4
B/60
9
18/03/2
016
31st
March
2017
+
6
months
Rs.2,56,09,
500/-
Rs.1,92,07,
126/-
5
B/13
06
31/03/2
017
31/03/2019+1
2mth
Rs.1,67,78,
775/-
Rs.1,40,52,
561/-
6
B/30
3
03/12/2
014
31/03/2017 +
6 mth
Rs.
1,50,00,000/
-
Rs.1,08,21,
790/-
7
A/33
04
17/03/2
018
AFS
not
uploaded
Rs.77,44,62
5/-
Rs.40,97,53
2/-
10
B/19
05
27-02-
2017
AFS
not
uploaded
Rs.
1,86,20,000/
-
Rs.1,27,90,
020/-
11
B/50
1

16. 11.2
015

31. 03.2017 +
6mth
Rs.1,64,90,
000/
Rs.1,25,18,
990/-
13
B/39
03
28-12-
2017
March, 2019
+ 12mth
Rs.1,83,11,
250/-
Rs.1,78,19,
356/-
19
B/30
09
27/01/2
017
31st
March
2019
+
12mths
Rs.
2,86,00,000/
-
NA


Complaint No. CC006000000197412
and 8 other Complaints

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23
D/27
01
17/12/2
015
NA
Rs.
6,71,07,150/
-
Rs.5,36,85,
720/-
24
A/33
04
17/03/2
018
AFS
not
uploaded
Rs.77,44,62
5/-
Rs.40,97,53
2/-

Except in Sr. No. 6 (CC006000000209351) and Sr. No. 23 (CC006000000397270),
the grace period is 6 months, otherwise in the remaining complaints, the grace
period is of one year.
The complainants have prayed for possession along with interest and
compensation for delay as the project is still incomplete, according to the date
of possession mentioned in the agreement for sale. The complainants have also
refuted contention of the respondent that the arbitration clause (wherever
applicable - in cases where the agreements for sale were signed under MOFA
regime) is applicable since the respondent is raising the said issue at a belated
stage. Moreover, the complainants have not opted for the said arbitration and
prayed for possession and interest and compensation for delay before the RERA
under section 18 of the RERA. Further, the complainants have also pointed out
that although the order of the Hon’ble Appellate Tribunal upholding that the
arbitration clause would not apply as the RERA supersedes any other Act,
although, the matter is subjudice before the Hon’ble High Court at Bombay,
there is no stay to the said order. Moreover, the complainants have also relied
on the order of Hon’ble Delhi High Court in which the said issue of arbitration
has also been dealt with and the Hon’ble Court has held that the RERA is
applicable even in cases where the agreements were signed in MOFA regime.
However, the respondent is relying on the case law and also the orders of the
Hon’ble Appellate Tribunal and the pending proceedings before Hon’ble
Appellate Tribunal which are reserved for orders. The respondent has also


Complaint No. CC006000000197412
and 8 other Complaints

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contended that due to delay in issuance of environment clearance as well as the
Covid-19 pandemic and the issues with regard to the SRA project, the project
was delayed and therefore, both the force majeure clause as per the agreements
for sale and the grace period as well as Covid moratorium is applicable to the
project. Therefore, the respondent claims that the interest is not payable for
delay by the respondent.
However, the complainants have contended that the force majeure does not
include delay in permissions as well as does not include the issue of SRA which
occurred due to non payment of rents by the respondent. Moreover, the
respondent has also argued (in case the date of possession was prior to the
Covid-19 pandemic) that Covid-19 moratorium will not apply and in case if at
all it is applicable, only the first circular of the RERA regarding Covid-19
pandemic of May 2020 will be applicable and not 2nd one. The complainants are
also relying on the fact that the respondent in matters which have been settled
as well as in the matters in which the respondent has sought interest for delay
from the allottees has accepted the authority of the RERA. Therefore, the stand
of the respondent is that arbitration will apply in MOFA agreements is hit by
Res Judicata. Further, the commencement certificate for the said project was
obtained in 2014, therefore, there is no valid reason for delay, according to the
complainants.
The complainants may file their written arguments within a period of 2 weeks
i.e by 09-01-2024. Further 2 weeks’ time i.e. till 23-01-2024 is granted to the
respondent to file written arguments. Both the parties may also upload
necessary case law along with written arguments.
In view of the above, these matters are reserved for orders suitably after 23-01-
2024 based on the arguments of both the sides as well as reply, rejoinder, written
arguments and case law wherever applicable filed in complaint. The issues
raised by the respondent about the arbitration is also a substantive issue and


Complaint No. CC006000000197412
and 8 other Complaints

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the same will be decided along with the substantive issue of possession
alongwith interest raised by these complainants in these complaints.

4. Pursuant to the said directions, the respondent has uploaded its additional
written arguments in the complaints at serial no. 2, 3, 4, 5, 6, 8, 9 on the
record on MahaRERA on 13-02-2024 (serial no. 2, 3, 4, 5, 6 and 8) and on
19-03-2024 (serial no. 9). The complainants at serial no. 2, 3,4, 6, 7, 8 and 9
have uploaded their written submissions / written arguments on the
record of the MahaRERA on 04-01-2024 (serial 2), on 08-01-2024, (serial no.
3, 4, 9), on 04-01-2024 (serial 6), and on 09-01-2024 (serial 8). The
complainants at serial no. 3 and 4 have uploaded their additional written
submissions on the record of the MahaRERA on 20-02-2024 (serial no. 3)
and on 22-02-2023 ( serial no. 4). Further, the complainants at serial no. 9
uploaded their additional written submissions on the record of the
MahaRERA on 26-03-2024. The said submissions are accepted and taken
on record. The MahaRERA has also perused the available record.

5. The complainants by filing these online complaints have mainly prayed for
the handover of the possession along with interest and compensation for
the delay. The information provided by the complainants in their
respective online complaints is as follows -


Complaint No.
Name

of
the
Complainant
Flat Details
Total
Consideration
Consideration Paid
Date
of
Agreement for
Sale
Date
of
Possession
as
per AFS
Reliefs Sought


Complaint No. CC006000000197412
and 8 other Complaints

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Serial no. 1
CC006000000197412
B/1207
Rs.1,87,97,200/-
Paid
Rs.1,41,20,131/-
21/12/2017
June 2019 +12
months
possession along with
interest, compensation
for mental agony, and
cost
Serial no. 2
CC006000000197972
B/609
Rs.2,56,09,500/-
Rs.1,92,07,126/-
(paid)
18/03/2016
31st March 2017
+ 6 months
Serial no. 3
CC006000000199339
B/1306
Rs.1,67,78,775/-
Rs.1,40,52,561/-
(paid)
31/03/2017
31/03/2019+12
mth
Serial no. 4
CC006000000209351
B/303
Rs.1,50,00,000/-
Rs.1,08,21,790/-
(paid)
03/12/2014
(AFS)
31/03/2017 + 6
months
Serial no. 5
CC006000000251505
B/1905
Rs.
1,86,20,000/-
Rs.1,27,90,020/-
(paid)
27-02-2017
(AFS)
On or before
March 2019 + 12
months
Serial no. 6
CC006000000292766
B/501
Rs.1,64,90,000/
Rs.1,25,18,990/-
(paid)

16. 11.2015

31. 03.2017
+
6mth


Complaint No. CC006000000197412
and 8 other Complaints

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Serial no. 7
CC006000000375073
B/3903
Rs.1,83,11,250/-
Rs.1,78,19,356/-
28-12-2017
March, 2019 +
12mth
Serial no. 8
CC006000000396775
B/3009
Rs. 2,86,00,000/-
Rs.
2,27,69,695/-
paid
27/01/2017
31st March 2019
+ 12mth
Serial no. 9
CC006000000397270
D-2701
Rs.
6,71,07,150/-
Rs.5,36,85,720/-
(paid)
17/12/2015
On or before 01-
06-2017
+
6
months

6. It is the case of the complainants at serial no. 1 that, they purchased their
said flats in said project vide registered agreements for sale by paying a
substantial amount, as mentioned in the aforesaid table at para 5. The
complainants stated that they had purchased the said flats in good faith of
commitments promised by the respondent’s representatives. However, the
respondent had cheated by obtaining 75% of the money out of total
consideration amounts towards the said flats. However, till date neither
the complainants have received any formal invitation to take possession
nor any compensation for delay in the possession been granted by the
respondents. Thereafter they alleged that the construction work of the said
project was stopped for over 2 years and the project was incomplete even
on the date of enforcement of the RERA. The respondent-promoter has not
completed the said project in time and all the assurances to complete the
said project have failed miserably. After follow-up and patiently waiting
and not getting any concrete answers, the complainants issued a notice to


Complaint No. CC006000000197412
and 8 other Complaints

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the respondents, to which the respondents failed to reply. Thereafter
complainants were astonished to know that the respondent promoter has
extended the date of possession of the said premise to 31-03-2021.
However, the same was not even notified to the complainants nor the
consent from the complainants was taken for such extension. The
complainants did not intend to withdraw from the said project and were
waiting for the project completion in order to get the possession of their
flats in legally and practically liveable condition under normal
circumstances. The complainants further stated that the said delay caused
them tremendous stress, and financial burden as they were paying EMI
and rent for the last 4 years. Hence, being aggrieved by the actions of the
respondents, the complainants at serial no. 1 have filed the complaint
before the MahaRERA mainly seeking possession along with interest,
compensation for mental agony, and cost from the present complaint.

7. It is the case of the complainants at serial no. 2 that, they purchased their
respective said flat in the said project vide registered agreements for sale
by paying a substantial amount. As per mentioned in the table herein
above in para 5. They stated that they had purchased the said flat in good
faith of commitments promised by the respondent representatives. The
complainants also mentioned that at the time of booking the respondent
representative mentioned that the Tower – Wing A of the said project is
already completed. Nevertheless, completion and occupancy certificates
have been received and the possession of the flat has already been handed
over to the buyers before promised time of delivery. As well as that the
construction of Wing B lower ground has started and the construction of
flats in Wing B, shall be completed by March-2017 and the possession of
the said flat shall be handed over to the buyer on or before 31.03.2017.


Complaint No. CC006000000197412
and 8 other Complaints

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Thus, relying on the claims of the respondents the complainants purchased
the said flat. As per clause 15(b) of the said Agreement for Sale dated 18-
03-2016, the possession was about to be delivered by 31st March 2017
subject to an extension of time for a further period of 6 months on account
of reasons beyond the control of respondent no.1. The complainants
alleged that the respondents have not completed the said Wing B in Tower
Alta Monte of the said project in time and all the assurances to complete
the said project have failed miserably. The complainants submitted that
recently one of the stop-work notices was issued by the Slum
Rehabilitation Authority on 5th February 2020. Thereafter complainants
were astonished to know the fact that the respondent had extended the
date of possession of the said premise to 30-06-2024. However, the same
was not even notified nor the consent from the complainants was sought.
They further stated that due to delay in the said possession they faced
/suffered from tremendous stress and financial burden. Hence, being
aggrieved by the actions of the respondents, the complainants at serial no.
2 have filed the complaint before the MahaRERA mainly seeking
possession along with interest, compensation for mental agony, and cost
from the present complaint.

8. It is the case of the complainants at serial nos. 3 and 4 that, they purchased
their respective said flats in the said project vide registered agreements for
sale by paying a substantial amount as mentioned in the table herein above
in para 5. The complainants at serial no. 3 stated while booking the said
flat the complainant found that the said flat no. B-907 was not as per the
specifications as promised. Therefore, the complainant at serial no. 3
immediately contacted the respondents and confronted the respondents
about the same. Whereby the respondents threatened the complainant at


Complaint No. CC006000000197412
and 8 other Complaints

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Page 13 of 40
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serial no. 3 with consequences including forfeiting aforesaid part
consideration amount of Rs. 32,94,173/- Hence there was no other option
but to accept another flat at a higher price as allotted by the respondents in
the same project bearing Flat No. 1306 in “B” Wing. After several
reminders, the respondent executed the agreement for sale, details of
which are mentioned in para 5. The complainant at serial no. 3 and 4 stated
that till date the complainant has paid the slab wise agreed amount and till
date the respondent has completed up to the 40th Slab. However, the
balance consideration/payment has not yet become due as the slab wise
payment was to be made and the time for further payment has yet not
arisen. Meanwhile, the respondents had to completely stop the
construction of the project on account of various irregularities on the part
of the respondents. Furthermore, despite making timely payments, the
respondent has not completed the said project in time and all the
assurances to complete the said project have failed miserably.
Nevertheless, the complainants have opted for loan towards their
respective said flats. Hence due to delay, tremendous stress, and financial
burden is being faced by the complainants as they have to pay EMI as well
as rent for their presently occupied properties. The complainants at serial
no. 4 stated that in lieu of handing over the possession, the respondent kept
raising further demands without any proper schedule with fixed timelines.
After some time, the complainants were shocked to receive such a notice
of termination from the respondents after having made most of the
payment out of the total demands raised from time to time by the
respondents. Afterward, it was withdrawn by the respondent by assuring
that the said flat would be provided till 31-03-2019. It is pertinent to note
that though till date only the 40th Slab has been completed, the
respondents have wrongly demanded a sum of Rs. 28,95,000/- contrary to


Complaint No. CC006000000197412
and 8 other Complaints

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Page 14 of 40
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the arrangement as recorded in the aforesaid email dated 27th April 2018.
The complainant stated that despite generous follow-up the respondent
failed to deliver possession of the said flat. Hence, being aggrieved by the
actions of the respondents, the complainants at serial no. 3 and 4 have filed
the complaint before the MahaRERA mainly seeking possession along
with interest, occupancy certificate and amenities, compensation for
mental agony, and cost from the present complaint.

9. It is the case of the complainant at serial no. 5 that, he agreed to purchase
the said flat in the said project vide registered agreements for sale by
paying a substantial amount as mentioned in the table herein above in para

5. The complainant stated that as per the agreement for sale, the
respondent had promised to give possession by March 2019. The
complainant stated that despite generous follow-up the respondent failed
to deliver possession of the said flat. Hence, being aggrieved by the actions
of the respondents, the complainant at serial no. 5 has filed the complaint
before the MahaRERA mainly seeking possession along with an interest
occupancy certificate and amenities, compensation for mental agony, and
cost from the present complaint.

10. The complainant in serial no. 5 uploaded an amendment application on the
record of MahaRERA on 29-06-2022. The complainant has amended the
details of the said flat and transaction related to the said flat. The
complainant further stated that the cause of action as well as the prayer are
unchanged and would remain the same as mentioned in the complaint
copy.

11. It is the case of the complainants at serial no. 6 that, they have purchased


Complaint No. CC006000000197412
and 8 other Complaints

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Page 15 of 40
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the respective said flat in the respondent’s registered project vide
registered agreements for sale by paying a substantial amount. As per
mentioned in the table herein above in para 5. The complainants at serial
no. 6 stated that they had purchased the said flat in the good faith of
commitments
promised
by
the
respondent
representative.
The
complainants also mentioned that at the time of booking the respondent
representative that the Tower – Wing A of the said project was already
completed, completion and occupancy certificates had been received and
the possession of the flat had already been handed over to the buyers
before promised time of delivery. As well as the construction of Wing B
lower ground has started and the construction of flats in Wing B shall be
completed by March-2017 and the possession of the said flat shall be
handed over to the buyer on or before 31.03.2017. However, further, it
came to know that the respondent had made false statements and cheated
the complainant. The complainants further stated that the allotment letter
contained unilateral terms and conditions in contravention of MOFA and
public policy which were arbitrarily and unilaterally imposed on the
complainants. However, the complainants were forced to sign the same,
failing which they were threatened with forfeiture of the entire booking/
earnest amount by the cancellation of the flat booking. Further, the
respondents again reconfirmed, reassured, and promised to deliver the
possession of the said flat on or before 31.03.2017 as per clause 4(n) of the
said allotment letter dated 09.09.2014. Further, the complainant stated that
despite follow-up the respondent failed to execute the agreement for sale
even after receiving more than 46% of the total consideration money in
contravention of section 4 of MOFA. Nevertheless, the respondents
continued to illegally raise demand for further part payments towards the
balance of consideration. Thereafter, they stated that they were forced to


Complaint No. CC006000000197412
and 8 other Complaints

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Page 16 of 40
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accept, sign, execute, and register an agreement for sale dated 16.11.2015
containing terms and conditions in contravention of the MOFA. The
complainants submitted that, recently stop-work notices was issued by the
Slum Rehabilitation Authority on 5-02-2020. Thereafter, complainants
were astonished to know the fact that the respondent had extended the
date of possession of the said flat to 30-06-2024. However, the same was
not even notified nor was the consent from the complainants. The
complainant stated that due to delay in the said possession the
complainant bears tremendous stress, and financial burden. The
complainant stated that despite generous follow-up the respondent failed
to deliver possession of the said flat. Hence, being aggrieved by the actions
of the respondents, the complainants at serial no. 6 have filed the complaint
before the MahaRERA mainly seeking possession along with interest,
compensation for mental agony, and cost from the present complaint.

12. It is the case of the complainant at serial no. 7 that, she agreed to purchase
the said flat in the said project vide registered agreements for sale by
paying a substantial amount. The complainant has submitted that they are
willing to pay the outstanding amount of Rs. 4,91,894/-. Further, she
alleged that despite paying a considerable amount towards the total
consideration of the said flat till date the respondent has not delivered the
possession of the said flat. Nevertheless, the complainants have opted for
a loan of Rs.75,00,000/- towards the said flat. Hence due to delay,
tremendous stress, financial burden that is being faced by complainants by
paying EMI to occupied property of complainants. Thereafter complainant
was astonished to know the fact that the respondent had extended the date
of possession of the said premise to 30-06-2024. However, the same was
obtained without their consent. The complainant stated that despite


Complaint No. CC006000000197412
and 8 other Complaints

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Page 17 of 40
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generous follow-up the respondent failed to deliver possession of the said
flat. Hence, being aggrieved by the actions of the respondents, the
complainant at serial no. 7 have filed the complaint before the MahaRERA
mainly seeking possession along with interest, compensation for mental
agony and cost or refund along with interest compensation and cost from
the present complaint.

13. The complainant in serial no. 7 has uploaded an amendment application
on record of MahaRERA on 01-09-2023. The complainant has deleted the
optional prayer that is refund along with interest compensation and cost.
However, submitted that the averments of the complaint remain
unchanged. The complainant stated that they have availed a loan of Rs.
1,76,00,000/- to purchase the said flat.

14. It is the case of the complainants at serial no. 8 that, they have purchased
the said flat in the said project vide registered agreements for sale by
paying a substantial amount. As per mentioned in the table herein above
in para 5. The complainants were willing to pay for the said flat. Therefore,
they paid almost 80% of the total consideration before the promised date
of possession. Thereafter, the complainants-initiated follow-ups via
emails. However, the respondent neglected the emails. After some time,
the respondent informed the complainants that there would be a delay in
the competition of the said project. As well as it informed that the tower D
work has been started. Hence, they will resume the work of tower B in a
month. Nevertheless, the respondent mentioned that they are in the
process of obtaining the commencement certificate for tower B which is a
big task and this is the major reason for the delay. Thereafter, the
complainants were astonished to know that the project will be completed


Complaint No. CC006000000197412
and 8 other Complaints

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Page 18 of 40
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in 2021. Hence being aggrieved by the said action the complainant sent a
legal notice to the respondent's demand for the possession. The
complainants stated that due to delay in the said possession they suffered
from tremendous stress, and financial burden. Hence, being aggrieved by
the actions of the respondents, the complainants at serial no. 8 have filed
the complaint before the MahaRERA mainly seeking possession along
with interest, compensation for mental agony and cost from the present
complaint.

15. It is the case of the complainant at serial no. 9 that, she had purchased the
respective said flat in the respondent’s registered said project vide
registered agreements for sale by paying a substantial amount. As per
mentioned in the table herein above in para 5. The complainants stated that
they had purchased the said flat in good faith of commitments promised
by the respondent representatives. The complainant stated that on multiple
occasions the respondent assured that possession would be handed over
by June 2017. Subsequently, the complainant and the respondent executed
an agreement for sale of flat dated 17 -12-2015. However, as per clause 6 of
the agreement for sale, the complainant paid almost 80% of the total
purchase price, before the execution of the Said Agreement for Sale.
Although the remaining 20% the complainant is willing only after the
possession of the said flat is granted. The complainant stated that despite
generous follow-up initiated via phone calls the respondent failed to revert
them. After some time, the respondent informed her that there was a delay
due to the respondent undergoing tremendous financial distress.
Nevertheless, the respondent assured that the possession would be
handed over by 01-06-2019 and also agreed to provide a rebate of ₹
3,00,000/- per month, commencing from 01 January 2018 till the handover


Complaint No. CC006000000197412
and 8 other Complaints

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Page 19 of 40
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of possession of the said flat. However, that amount will be treated as
compensation. However, once again the respondent failed to deliver the
possession on the stipulated time. Thereafter, the complainant was
astonished after receiving the demand letters from the respondent to pay
the Balance Purchase Price. Thereafter the complainant stated that she
recently learnt that on or about 18 January 2022, the respondent obtained
part occupancy certificate in respect of inter alia lower ground to the 40th
floor of Tower D of the said project from the Slum Rehabilitation
Authority. However, the respondent failed to inform the same, to the
complainant. Hence, being aggrieved by the actions of the respondents, the
complainant at serial no. 9 has filed the complaint before the MahaRERA
mainly seeking possession along with interest, compensation for mental
agony, rebate amount payable by the respondents to the complainant from
the present complaint.

16. The respondent promoter viz M/s Era Realtors Pvt Ltd has registered this
project with the MahaRERA, wherein the other respondent viz M/s.
Omkar Realtors Pvt Ltd has also been shown as co-promoter. Hence, for
the sake of brevity both the respondents are hereinafter referred to as “the
respondent”.

17. The respondent has uploaded its reply to the complaint at serial no. 1 and
the respondent has uploaded the written notes in serial no. 7 on 18-09-2023
on the record of the MahaRERA. The respondents stated that the
possession date was further extended to June 2020 and due to extension of
Covid-19 the possession further het extended up to June 2021. Hence the
possession got delayed. Furthermore, it stated that as per clauses 112 and
113 of the said agreement for sale, it is agreed between the parties that in


Complaint No. CC006000000197412
and 8 other Complaints

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Page 20 of 40
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case of dispute, the matter shall be decided by the arbitrator under the
provision of the Arbitration and Conciliation Act, 1996. Hence the matter
should be referred for arbitration. On this ground itself, the complaint is
liable to be dismissed with cost. Nevertheless, the respondent submitted
all the reasons for the delay in the said project. Further the respondent
explained the force majeure clause in detail and submitted that delay was
out of the control of the respondents and hence the force majeure clause
shall prevail in these matters. The respondent stated that the respondent
has undertaken the redevelopment of a larger property under the
approved Slum Rehabilitation Scheme. The allottees were aware of the
complexities involved in the said project including its developmental
potential, issue of eligible/non-eligible slum dwellers, status of approvals,
etc. They were also aware that under the slum redevelopment policy, the
FSI for the construction of the free sale component would be sanctioned
based on the FSI sanctioned for the rehab component. Further, they were
also aware of the challenges associated with the rehabilitation of the slum
dwellers in such rehabilitation schemes. Being fully aware of the
challenges and complexities associated with the slum redevelopment
scheme and the inherent risks, and difficulties in such projects, the allottees
proceeded to undertake its investment. The respondent has categorically
mentioned in the agreement for sale that the possession date as mentioned
under the agreement shall be subject to force majeure circumstances
including delay in getting approvals from the statutory authorities. It was
contended by the respondent that, various slum dwellers as well as social
workers had filed various litigations which caused a loss of time and
money for the respondents. Several non-eligible slum dwellers in the S.R.
Scheme carried out a “Dharna” agitation in front of the said project gate on
23-05-2016 which ended in February 2018. The promoters have also filed a


Complaint No. CC006000000197412
and 8 other Complaints

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Page 21 of 40
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Criminal Writ Petition bearing no. 1946 of 2016 in the Hon’ble Bombay
High Court in respect thereof. In the meanwhile, the movement of labour
and materials to the project site was restricted. Hence, the respondents are
required to obtain fresh permissions from the authorities, including MOEF
approvals. Accordingly, the respondent applied to MOEF on 05-07-2014.
However, the State MOEF Committee was dissolved on 27-10-2016 and
from that period till in or around December 2016, the MOEF approvals
were not granted, which caused delay owing to the said disbandment in
proceeding with the said project. Therefore, the respondent applied to the
Central EAC on 27-12-2016 for approval which caused further procedural
delay and finally, the respondent received Environmental clearance and
approval on 04-12-2017. Thus, there was an approximate delay of 1245
days against the actual estimated period of 106 days in getting such
approvals. Due to economic crises owing to the Covid-19 pandemic and
demonetization, the flats could not be sold in the market. Hence, they
could not generate the required funds for construction purposes. Further,
new D.P. rules have been made applicable in Mumbai, and as such
respondents were constrained to change the building plans and get the
same approval from SRA. It was an unforeseen event, which took a
considerable period. It was further submitted by the respondent that the
said project got stuck due to a liquidity crunch caused by depressed sales.
The said project lender i.e., India bulls have started recovering repayment
of instalments of the project loan together with interest thereby leaving
hardly any money in the RERA Escrow account to continue with the
construction of the said project. This further worsened the situation as
receivables from customers also stopped coming in for lack of construction
progress. This situation continued and invited several complaints, filed
with the MahaRERA, by allottees seeking a refund of their sale


Complaint No. CC006000000197412
and 8 other Complaints

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Page 22 of 40
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consideration together with delayed interest against cancellation of the
agreement. To address the situation, the respondent renegotiated with the
lenders, and the lender also in a larger interest in the said project now
agreed to the utilization of funds deposited in the RERA Escrow account
towards the completion of the said project. Due to major reasons, the
possession of the said flat was delayed. Further, the respondent relied on
the common order dated 01-12-2022 passed by MahaRERA (Hon’ble
Chairperson) in the matter of Rupesh Dave in the same project wherein
MahaRERA has allowed and directed that refund should be initiated only
after the completion of the project. Notwithstanding the delay , the refund
shall be initiated after the acquisition of the occupancy certificate. Hence
the respondent is ready to initiate a refund along with interest after the
occupancy certificate. Further respondent stated that if the relief is granted
to the allottees there will be a huge loss for the respondent and other
prospective purchasers who have paid the full amount and are waiting for
project completion. Nevertheless, the slum dwellers are still waiting to be
rehabilitated in the project. Hence it prayed for the utilization of funds
from RERA designated account instead of a refund of any nature to the
complainant. Therefore, in view of the above-mentioned submissions, the
Respondent contended that the complaint is liable to be dismissed with
costs.

18. The respondent has uploaded its reply to the complaint at Sr. Nos. 1,
2,3,4,5,6,8,9 on 18-09-2023( serial no. 1,2, 6 and 8, ) , on 22-04-2021 ( serial
no. 3) , on 03-06-2023 ( serial no. 4) , on 14-04-2023 (serial no. 5 ) , and on
15-09-2023 ( serial no. 9) respectively on the record of the MahaRERA
wherein the respondent has submitted the same submissions as mentioned
in reply to the complaints at Sr. No. 1 and 7. In addition to that, the


Complaint No. CC006000000197412
and 8 other Complaints

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Page 23 of 40
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respondent submitted that as per clause 13 of the agreement for sale, the
parties have mutually agreed that the dispute as to whether the stipulation
specified on section 8 of the MOFA has been satisfied or not will be referred
to the arbitration of an independent person nominated by the respondent
who will act as a sole arbitrator. In view of the same, the matter should be
first referred to the sole arbitration or as mutually agreed upon between
both parties. Hence, on the said ground the complaint should be dismissed.
Further, the respondents have mentioned the reasons for the delay in detail
which is already incorporated in above para 19. The complainants have
accepted the revised possession date by making payment from time to time
after the expiry of the agreed possession date as mentioned in table at para
5 along with grace periods plus 6. The complainant has paid as mentioned
in table at para 5 and is now trying to take undue advantage of the
provisions of the RERA. The respondents have further raised demands in
regard to the balance consideration. However, the complainants have not
made payment against the same. Thus, the complainants are in gross
default in making payment of the outstanding amount. Therefore, it is not
liable to claim interest till possession. In fact, the complainants are liable to
pay interest on delayed payment. Due to this action, the allottees
respondent endured loss and the flat has been stuck for the last 5 years.
Further, it relied on the

JUDGMENT

Raymond Realty v/s. Jyoti Madbusi and
Another and Era Realtors Pvt. Ltd. V/s. Krishma Ohri & Rakesh Ohri and
others. Further, the respondent stated that due to non-payment of the
consideration amount the construction work of the project is affected. On
the other hand, allottees have filed the respective complaints under section
18 seeking a refund along with interest. However, the allottees are taking
undue advantage of the legal provision seeking withdrawal from the
project and demanding a refund along with interest. Further, it relied on


Complaint No. CC006000000197412
and 8 other Complaints

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order in Chanchal Rastogi V/S. Era Realtors Pvt. Ltd. passed on 12-02-
2021, Sagar Parikh V/S. Era Realtors Pvt. Ltd. and Chhavi Agarwal V/S.
Era Realtors Pvt. Ltd passed on 15-02-2021,wherein MahaRERA directed
the allottees to pay interest for delay in making the payment of the
purchased flat. Consequently, in the present case, the allottees are liable
for the same. Further, it relied on the

JUDGMENT

matter Omkar Ventures
v/s. Chetan Panchal. Relying on this

JUDGMENT

the respondent stated that
even the respondent was entitled to seek similar relief due to the loss
incurred by the allottees for the non-payment and breach on the part of the
allottees. The respondent further stated that the agreement for sale was
executed under the MOFA Act. hence the provisions of the same are
binding upon the parties. Thereafter it stated that the complainant has
relied upon and invoked the possession clause of said agreement for sale.
However, the said clause has to be read entirely not partially. Further, it
relied on the common order dated 01-12-2022 passed by MahaRERA
(Hon’ble
Chairperson/MahaRERA)
in
complaints
nos.
CC006000000193280,
CC006000000194298,
CC006000000196494,
CC006000000196638, and CC006000000196687, wherein there is no such
provisions under RERA to rewrite the clause of the agreement for sale and
accordingly Arbitration clause under MOFA shall prevail. Further, the
respondent stated the clauses 12 (c) and 12 (d) that mentions termination
and that the respondent is held to refund the monies only upon the full
receipt of the consideration amount for the said flat. Notwithstanding the
refund amount will be calculated deducting taxes, outgoings, differences
in price in sale amount, brokerage 10 % deduction on consideration cost
paid, cost of finding new purchasers, etc. However, the complainants have
adopted price and chose policy in the clauses of the agreement for sale.
Further, the respondent relied on the common order dated 01-12-2022


Complaint No. CC006000000197412
and 8 other Complaints

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Page 25 of 40
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passed by MahaRERA (Hon’ble Chairperson) in the matter of Rupesh
Dave and 15 others wherein as per the para “k” of the order the
respondents were to claim the benefits of moratorium period as mentioned
in the circulars/orders no. 13 and 14 and 21 dated 02-04-2020, 18-05-2020
and 06-08-2020 issued by MahaRERA. Therefore, in view of the above-
mentioned submissions, the respondent contended that the complaint is
liable to be dismissed with costs.

19. The respondent has uploaded its revised affidavit in reply to the complaint
at serial no. 5 on the record of the MahaRERA on 17-04-2023. The same
consists of the same facts submitted by the respondents in their replies to
other complaints.

20. The complainants in serial no. 1 uploaded their rejoinder on the record of
MahaRERA on 03-10-2023. Wherein they reiterated the submissions and
have further denied each and the contentions and submissions of the
respondents in a para-wise manner. The complainant denied the statement
of the respondent in para 3 of its reply and relied on the matter of Rahul
Rajendra Kumar Pagariya & Ors. V/s. Rashmi Realty Builders Pvt. Ltd. &
Ors. (Appeal No. AT006000000052320) before the Maharashtra Real Estate
Appellate Tribunal, Mumbai, specifically para 41, 42 and 43 of the order. .
Further denying each and every contention of the respondent they stated
that their entire efforts made by the respondent to oppose present
proceedings by itself is futile exercise done by them. However present
complaint deserves to be allowed and accordingly it is prayed that
necessary reliefs as prayed for be granted. Hence, they refuted each and
every contention of the respondent in toto.


Complaint No. CC006000000197412
and 8 other Complaints

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Page 26 of 40
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21. The complainant in serial no. 2 and 6 have uploaded their rejoinder on
the record of MahaRERA on 19-10-2023 in both the complaints. In the said
submissions, they reiterated the submissions and have further denied each
and every contention and submission of the respondents. The
complainants stated that despite the arbitration clause mentioned in the
agreement for sale in various cases the respondent has filed the consent
terms and settled the matter in MahaRERA. Furthermore, the complainant
relied on the matter of
complaint no. CC006000000193982
Mr. Reza Massah
And Aparna Massah V/S. Era Realtors Ltd. Wherein as per the order
passed on 25-02-2021 the respondent was directed to pay the interest every
month till the occupancy certificate is obtained. However, in the present
case the complainants are dealing with the same situation. Further the
complainant relied on various orders passed by the MahaRERA to justify
that the present complaint falls under the jurisdiction of MahaRERA.
Further the complainant relied on the order passed on 14-01-2022 and 20-
07-2022 by the MahaRERA in the
complaint no. CC006000000195755
,
whereby the MahaRERA had directed to accept the jurisdiction of
MahaRERA. Hence the complaint is maintainable under the provisions of
the RERA. The complainant also submitted that the RERA being a special
enactment dealing with the real estate sector , will prevail over the
Arbitration and Conciliation Act, 1996. The complainants alleged that the
delay mentioned by the respondent is not justified or satisfactory. The
complainant stated that the respondent never informed the reasons (such
as) economic downturn, Covid-19, to the complainants. However, the date
of possession was by March 2017 which was far before Covid -19
pandemic. Further, the respondent promoter refuted the fact that the
complainants have delayed the payment whereas they stated that vide an
email dated 18-08-2023 the complainants informed that interest on delayed


Complaint No. CC006000000197412
and 8 other Complaints

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possession of the said flat works out to be in excess of amount due to the
complainants. Hence, the complainants are not liable to pay the
instalments which are required to be adjusted against the interest on
delayed possession of the said flats.

22. The complainants in serial nos. 3 , 4, 5 and 9 have uploaded their rejoinder
and complainants at serial no. 8 have uploaded written submissions on the
record of MahaRERA on 15-04-2023, 27-06-2023, 15-07-2023, and 07-12-
2023 respectively wherein they reiterated the submissions and have
further denied each and the contentions and submissions of the
respondents. Further the complainants relied on various orders passed by
the MahaRERA to justify that the present complaint falls under the
jurisdiction of the MahaRERA. The complainants at serial no. 7 submitted
that the reliance placed by the Respondents on Asho Palav Co-op Housing
Society Ltd. vs. Pankaj Bhagubhai Desai & Anr. is misplaced and
misconceived as the nature of reliefs sought by the appellant therein were
completely different from the instant complaint. Further they relied on
certain cases of Kuldeep Kaur v. MVL Ltd., wherein it was laid down that
Section 89 of the Real Estate (Regulation and Development) Act, 2016 has an
overriding effect on all other laws including MOFA. In one more referred case
of Umesh Vyas v. Prima Terra Buildetch Private Limited, the MahaRERA
has held that in case the respondent is unable to complete the project and give
possession of the plots, buildings or apartments to the home buyers then the
homebuyers despite the agreement being covered under MOFA can seek relief
under section 18(1) of the Act which states that in such a scenario, the allottees
are to be awarded interest from promised date of possession till the date of handing
over the plot, apartment or building at the rate prescribed under RERA Act, 2016.
Further, the complainants relied on the case of Ganesh Lonkar v/s. DS
Kulkarni Developers Ltd.
complaint no. CC005000000000317
wherein


Complaint No. CC006000000197412
and 8 other Complaints

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though the arbitration clause was mentioned in the agreement for sale, the
MahaRERA decided disputes that are covered by the arbitration
agreement for sale. Notwithstanding section 89 of the RERA Act contains
a non-obstante clause that explicitly states that the RERA shall be in force
despite any inconsistencies with other laws currently in force. The allottees
stated that as per section 8 of the Arbitration Act mentions that the
proceeding requires the judicial authority to refer the arbitration matters
which is also mentioned in an arbitration agreement. The complainants
stated that the arbitration Act has not been enacted for the special purpose
relating to the disputes between respondent and consumers. However, the
MahaRERA is enacted exclusively for the resolution and adjudication of
such disputes. Hence, the complaint is maintainable under MahaRERA.
Further the complainant at serial no. 3 alleged that the order referred by
the respondent in its affidavit in reply is not correct. Further, they refuted
each and every contention of the respondent in toto.

23. The complainant in serial no. 7 has uploaded his written arguments on the
record of the MahaRERA on 06-10-2023.The same consists of facts that
have been submitted by the complainant in his complaint copy. The
complainant refuted the contentions of force majeure made by the
respondents in its reply and submitted that the respondent should have
planned execution by factoring in the various risks beforehand. However,
the respondent cannot shift the liabilities on home buyers. Further, he
refuted each and every contention of the respondent in toto.

24. The respondent has uploaded its additional affidavit in reply to the
complaint at serial no. 3 and serial no. 4 on the record of the MahaRERA
on 28-10-2023 and 18-09-2023 respectively. The same consists of the facts


Complaint No. CC006000000197412
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submitted by the respondents in its reply.

25. The complainants at serial no. 3 have uploaded additional affidavit in
rejoinder on the record of the MahaRERA on 28-10-2023. The same consists
of the facts submitted by the complainants in their rejoinder.

26. The respondent has uploaded its written arguments to the complaint at
serial no. 1, 2, 3, 4, 6, 7, 8, 9 and written submissions in serial no. 5 on the
record of the MahaRERA on 22-11-2023(serial no. 1,2,3,4, 6,7 8), on 03-10-
2023 ( serial no. 5) and on 16-02-2024 (serial 9 )The same consists of the facts
submitted by the respondent in its reply.

27. The complainants at serial no. 2, 3,4, 5, 6, 7, 8, 9 have uploaded their written
submissions/ written arguments, on the record of the MahaRERA on 04-
01-2024 ( serial 2) on 08-01-2024(serial no. 3,4,9), on 03-10-2023 (serial no.
5), on 04-01-2024 ( serial 6 ), on 22-10-2023 ( serial 7), and on 09-01-2024 (
serial 8) . The same consists of the facts submitted by the complainants in
their rejoinder.

28. The respondent has uploaded its additional written submissions/
additional written arguments to the complaints at serial no. 2, 3, 4, 5, 6, 8
and 9 on the record of the MahaRERA on 13-02-2024 (serial no. 2, 3, 4, 5, 6,
8) and on 19-03-2024 (serial no. 9) . The same consists of the facts submitted
by the respondent in its reply.

29. The complainants at serial no. 3,4 have uploaded their additional written
submissions on the record of the MahaRERA on 20-02-2024 ( serial no. 3)
and on 22-02-2023 ( serial no. 4) The complainants refuted each and every


Complaint No. CC006000000197412
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averment of the respondent which it has made in its reply, written
arguments/submissions
as
well
as
in
additional
written
arguments/submissions. The complainants prayed for rejection of the
moratorium periods pressed for by the respondents.

30. The complainants at serial no. 9 uploaded their additional written
submissions on the record of the MahaRERA on 26-03-2024. The
complainants refuted each and every averment of the respondent which it
has made in its reply, written arguments/submissions as well as in
additional written arguments/submissions. The complainants stated that
the pleading of the respondents does not have a foundation. However, the
submissions submitted by the respondents are baseless.

31. The MahaRERA has examined the arguments advanced by both the parties
as well as the record. In the present case, the complainants being the
allottees of this project have approached the MahaRERA initially seeking
reliefs under section 18 of the RERA towards possession of their flats along
with interest and compensation on account of delay under section 18 of
the RERA. The complainants have mainly contended that the respondent
has failed to handover possession of their respective flats on the agreed
dates of possession mentioned in their respective agreements for sale duly
signed by both the parties ( details as mentioned in the aforesaid table at
para-no. 5). In all these 9 complaints the complainants are seeking
possession of their flats as they are willing to remain in this project. To
support their contentions, the complainants have submitted the copies of
their respective agreements for sale on record of MahaRERA.

32. The respondent has assailed the aforesaid claims of the complainants


Complaint No. CC006000000197412
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agitated under section 18 of the RERA mainly raising an issue of
maintainability of these complaints under the provisions of RERA and on
the ground that the said agreements for sale signed by these complainants
mention the arbitration clause. The respondent has mainly contended that
as per clause 13 of the agreements for sale, the parties therein have
mutually agreed by signing the said agreements for sale under the
provisions of the MOFA for arbitration. Hence, any dispute which arises
by virtue of the said agreements for sale, the same will have to be referred
to the arbitration of an independent person nominated by the respondent.
Hence, it has prayed that these complaints should be first referred to the
sole arbitration or as mutually agreed upon between both parties. On the
said ground, the respondent has prayed for dismissal of these complaints.

33. However, the complainants have resisted the aforesaid issue of
maintainability raised by the respondent in view of the arbitration clause
mentioned in their respective agreements for sale. The complainants have
mainly contended that the respondent has raised the said issue at a belated
stage of the hearing of these complaints on merit and also when they have
already filed these complaints exhausting the remedy available to them
under RERA. To support their contentions, the complainants have also
relied upon various orders passed by the Hon’ble Appellate
Tribunal/MahaRERA, whereby it is held that the RERA superseds all
other applicable laws including the MOFA.

34. Be that as it may, in the present case, the MahaRERA has prima facie
noticed that, the agreements for sale in respect of the complainants at sr.
nos. 1 and 7 are executed under the RERA regime and the rest of the
agreements for sale in respect of the complainants at sr. nos. 2,3,4,5,6,8 and


Complaint No. CC006000000197412
and 8 other Complaints

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9 are executed under the provisions of section 4 of the MOFA.

35. However, as far as the said issue of maintainability of these complaints
raised by the respondent, the MahaRERA has perused the available record
pertaining to this project registered with the MahaRERA. On bare perusal
of the available record as well as the submissions made by the respondent
herein, the MahaRERA has noticed that the very first order passed by the
Hon’ble Chairperson/MahaRERA dated 14-01-2022 passed in the matter
of Ayyaz Khan and Anr has been challenged before the Hon’ble Appellate
Tribunal in Appeal No. AT006000000053554 filed by the said complainant-
allottees on 19-01-2022. It shows that the said crucial issue as raised by the
respondent in these complaints (although at belated stage) about the
maintainability of these complaints in view of the specific “arbitration
clause mentioned in the agreement for sale executed under the MOFA” is
under consideration before the Hon’ble Appellate Tribunal. Admittedly,
the said order is passed by the Hon’ble Chairperson/MahaRERA in this
particular project and the decision in the said pending appeal has a bearing
in these complaints.

36. Moreover, as on date the MahaRERA cannot take any divergent view in
these complaints as these complainants at sr. nos. 2,3,4,5,6,8 and 9 are also
similarly placed complainants who have filed these complaints seeking
reliefs under section 18 of the RERA by virtue of the agreements for sale
signed under the provisions of MOFA. In any case, the said complainants
have also opposed the said preliminary issue raised by the respondent
promoter by filing their respective written submissions on record of
MahaRERA along with supportive judgements passed by the Hon’ble
Appellate Tribunal. In addition the said issue is also under consideration


Complaint No. CC006000000197412
and 8 other Complaints

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before the Hon’ble High Court at Bombay in a pending writ petition filed
with respect to the another project.

37. In view of these facts, as far as this project is concerned, the MahaRERA is of
the view that to decide these complaints in this particular project by deciding
the said issue raised by the respondent about the maintainability (suo moto) ,
would definitely amount to pre-judging the issue which is sub-judice before
the Hon’ble Appellate Tribunal in the same project.

38. Further, the record also shows that as per order dated 23-04-2023 passed by
the Hon’ble Appellate Tribunal, the said appeal no. AT006000000053554 is
now adjourned for final hearing and the same is kept high on board (HOB).

39. In addition to this , the MahaRERA has also noticed that in other similarly
placed complaints filed by the other allottee of this project viz
Complaint No.
CC006000000197998
vide an

INTERIM ORDER

dated 24-11-2023, the MahaRERA
has also taken a similar stand and the decision in the said complaint on the
issue of maintainability was kept in abeyance.

40. Considering these facts and in the fitness of justice, it would be just and proper
to wait for the decision of the Hon’ble Appellate Tribunal in the aforesaid
appeal while taking any decision in these complaints at sr. nos. 2,3,4,5,6,8 and
9 on the issue of maintainability. Both the parties in the said complaints are
directed to file an application on record of MahaRERA once the said appeal is
decided by the Hon’ble Appellate Tribunal. Till then, the decision in these
complaints on the issue of maintainability are kept in abeyance.

41. As far as the complaints at sr. nos. 1 and 7 are concerned, since there are no


Complaint No. CC006000000197412
and 8 other Complaints

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explicit provision under RERA about arbitration like MOFA, the MahaRERA
can deal with the said complaints on merits under section 18 of the RERA.

42. Admittedly, the said complainants have filed these complaints seeking reliefs
under section 18 of the RERA towards possession of their flats along with
interest and compensation. The said claim is agitated by the complainants by
virtue of the registered agreements for sale dated 21-12-2017 and 28-12-2017
(respectively) executed between them and the respondent- promoter.

43. The complainants have contended that as per the said agreements for sale
dated 21-12-2017 and 28-12-2017 respectively, the respondent has agreed to
handover possession of their flats on or before 30-06-2019 + 12 months grace
period i.e. on 30-06-2020 (in sr. no. 1) and on 31-03-2019 + 12 months grace
period i.e. 31-03-2020 (sr. no. 7). However, the respondent has failed to
handover possession of their flats on the said agreed date of possession.

44. The claim of the said complainants has been resisted by the respondent
promoter by filing its reply on record of MahaRERA. It has mainly contended
that the project got delayed mainly due to delayed permissions by the
competent authority as this project is an SRA project, delay in granting the
Environment Clearance and Covid-19 pandemic etc. The respondent further
contended that as per clauses of the said agreements for sale, it is entitled to
seek reasonable extension in the date of possession being mitigating
circumstances. Hence, it has prayed for dismissal of the said complaints.

45. In this regard, before dealing with this complaint on merits it is necessary to
peruse the provision of section 18 of the RERA, which reads as under:


Complaint No. CC006000000197412
and 8 other Complaints

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“18 (1) If the promoter fails to complete or is unable to give possession of an
apartment, plot or building,—(a) in accordance with the terms of the
agreement for sale or, as the case may be, duly completed by the date specified
therein; or(b) due to discontinuance of his business as a developer on account
of suspension or revocation of the registration under this Act or for any other
reason, he shall be liable on demand to the allottee, in case the allottee wishes
to withdraw from the project, without prejudice to any other remedy
available, to return the amount received by him in respect of that apartment,
plot, building, as the case may be, with interest at such rate as may be
prescribed in this behalf including compensation in the manner as provided
under this Act: Provided that where an allottee does not intend to withdraw
from the project, he shall be paid, by the promoter, interest for every month of
delay, till the handing over of the possession, at such rate as may be
prescribed.”

46. The aforesaid explicit provision under section 18 of the RERA clearly provides
that on failure of the promoter to handover possession of the flat to the allottee
on the agreed date of possession mentioned in the agreement for sale, the
allottee has two choices either to withdraw from the project or to continue in
the project. If the allottee intends to withdraw from the project, the promoter
on demand of the allottee is liable to refund the entire amount paid by the
allottee along with interest and compensation as prescribed under RERA. If
the allottee is willing to continue in the project, in that event, the promoter is
liable to pay interest for the delayed possession.

47. Likewise, in the present case, the complainants are willing to stay in the project
and wish to have possession of their flats and hence have filed this complaint
seeking interest and compensation for the delayed possession under section 18
of the RERA.


Complaint No. CC006000000197412
and 8 other Complaints

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48. Admittedly, as stated hereinabove as per the said the registered agreements
for sale dated 21-12-2017 and 28-12-2017 respectively duly signed by both the
parties, the respondent was liable to handover possession of the said flats to
the complainants on or before 30-06-2020 and 31-03-2020 respectively
including the grace period of 12 months mentioned in the said agreements for
sale. Admittedly, the project got delayed and the possession was not handed
over to the complainants on the said agreed date of possession mentioned in
the agreements for sale.

49. As far as the reasons of delay cited by the respondent such as demonetisation,
delayed permissions by the competent authority due to this project being SRA
project, delay in issuing the Environment Clearance and Covid-19 pandemic
etc., the MahaRERA has noticed that most of the reasons do not fall within the
force majeure factors mentioned in the said agreements for sale. Furthermore,
to obtain timely permission for implementing the project is the duty of the
respondent being promoter of this project. The complainants allottees have
nothing to do with the same. Hence, the respondent promoter is not entitled
to claim any benefit of the said factors as being mitigating circumstances
beyond its control.

50. However, as far as another force majeure factor of Covid-19 pandemic, cited
by the respondent, the MahaRERA is of the view that admittedly, the Covid -
19 pandemic occurred after execution of the said agreements for sale dated 21-
12-2017 and 28-12-2017 respectively. Further, the said pandemic severely
affected all sectors of society especially the real estate sector and taking into
consideration the said pandemic, the MahaRERA has issued various
orders/notification and granted one year extension in completion of projects


Complaint No. CC006000000197412
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registered with the MahaRERA.

51. Considering the said one year grace period granted by the MahaRERA, the
date of possession in this case gets extended till 30-06-2021 from 30-06-2020
(in sr. no. 1) and till 31-03-2021 from 31-03-2020 (in sr. no. 7) . However, even
on that date the project was incomplete and possession was not handed over
to the said complainants. It shows that the respondent promoter has failed to
handover the possession of the said flats to the complainants even on the
extended date of possession as per the covid-19 pandemic and thereby the
respondent promoter has violated the provisions of section 18 of the RERA.
Hence, the said complainants (at sr. nos. 1 and 7 ) are entitled to seek interest
on account of delay under section 18 of the RERA from the said extended date
of possession i.e. on 30-06-2021 (sr.no. 1) and 31-03-2021 (in sr. no. 7) till the
actual date of possession of their flats.

52. As regards to the claim of towards compensation sought by the said
complainants under section 18 of the RERA, the MahaRERA is of the view that
since the said complainant-allottees are willing to remain in the project and
to have possession of their flats, they are entitled to seek interest on account
of the delay. Hence, their claim towards the compensation stands rejected in
view of the explicit provisions of section 18(1) of the RERA.

53. In addition to this, the MahaRERA has also noticed that there are several
orders passed by the Ld. Erstwhile Member-1/MahaRERA in other similarly
placed complaints filed in respect of this project, whereby interest was granted
to the said complainant allottees considering all these reasons of delay cited by
the respondent promoter. Hence, the complainants herein being the allottees
of this project are also entitled to seek similar reliefs at par with the other


Complaint No. CC006000000197412
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allottees of this project.

54. As far as the issue raised by the respondent about default on the part of the
said complainants at sr. nos. 1 and 7 (as applicable, if any) in making timely
slab wise payments, the MahaRERA is of the view that it is settled law that
the RERA legislation, casts the statutory obligation not only upon the
promoter, but also on the allottee under section 19(6) of the RERA. Meaning
thereby, the allottee is under obligation and is bound to make the timely
payments towards the consideration as per the terms and conditions of the
agreement for sale. Likewise, in the present case, admittedly, there are
registered agreements for sale duly signed by both the parties, which has
binding effect on both respondent as well as the complainants. Hence, the
complainants are under obligation to make the timely payments to the
respondent as per the said agreements for sale as per section 19(6) of the RERA.
However, in case of any default on the part of the said complainant allottees
(if any) in making the said timely payment, they are also liable to pay interest
on account of delayed payment as provided under section 19(7) of the RERA.

55. In view of the above facts and discussion, the following order is passed:
a. The complaints at sr. nos.2,3,4,5,6,8 and 9 are kept in abeyance to decide the
issue of maintainability of the said complaints in view of the observations
made in the aforesaid para-nos. 34 to 40.
b. The present complaints at sr. nos. 1 and 7 are partly allowed.
c. The claim of compensation sought by the said complainants (at sr. nos. 1
and 7) stands rejected in view of the observations made in aforesaid para-
no. 52.
d. The respondent promoter is directed to pay interest for the delayed
possession to the complainants at sr. no. 1 from 01-07-2021 ( as per


Complaint No. CC006000000197412
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agreements for sale i.e. 30-06-2020 (including 12 months grace period) + 1
year grace period due to Covid-19 Pandemic) and to the complainant at sr.
no. 7 from 01-04-2021 ( as per agreements for sale i.e. 31-03-2020 (including
12 months grace period) + 1 year grace period due to Covid-19 Pandemic)
for every month till the actual date of possession of the said flats to the
complainants on the actual amount paid by the said complainants towards
the consideration of their flats at the rate of Marginal Cost Lending Rate
(MCLR) of SBI plus 2% as prescribed under the provisions of section 18 of
the RERA and the Rules made thereunder.
e. Needless to state here that the actual amount as provided under section 18
of the RERA means the amount paid by the said complainants towards the
consideration of the said flats only, excluding the stamp duty, registration
charges and taxes etc. paid to the government.
f. However, in view of the mitigating circumstances beyond the control of the
respondent promoter and also to ensure that the said project is not
jeopardised due to the outflow of finances and is completed keeping in mind
the interest of the other buyers of the said project at large, it is directed that
the amounts of interest shall be paid by the respondent promoter to the said
complainants after obtaining the full occupancy certificate. Also, the
respondent promoter at the time of possession of the flats to the
complainants, may set off the outstanding dues along with any applicable
interest (if any)with the interest amount payable by it to the said
complainants and the balance amount if any , by either party be paid at the
time of possession.
g. With regard to the payment of interest to the said complainants, the
MahaRERA further directs that the respondent promoter is entitled to claim
the benefit of “moratorium period” as mentioned in the Notifications /
Orders nos. 13 and 14 dated 2nd April, 2020 and 18th May, 2020 issued by the


Complaint No. CC006000000197412
and 8 other Complaints

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MahaRERA and the Notification/Order which may be issued in this regard
from time to time.

58. With the above directions, the complaints at sr. nos. 1 and 7 stand disposed
of and the complaints at sr. nos. 2,3,4,5,6,8 and 9 are kept in abeyance for
taking decision about the issue of maintainability raised by the respondent.


(Mahesh Pathak)
Member – 1/MahaRERA