Complaint No. CC006000000396865


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BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY, MUMBAI


Complaint No. CC006000000396865


Rahul Sharma


... Complainant

Versus

1) Mount Mary Builders
2) Shushila Suresh Malge
3) Suresh Babu Malge
4) India bulls Distribution services Ltd
(Through Its Directors)
5) Akshar Space Pvt Ltd
(Through Its Directors)


... Respondents


MahaRERA Project Registration No. P51700003889


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

Ld. Adv. Zoheb Khatri appeared for the complainant.
Ld. Adv. Sayed appeared for respondent no. 1.


INTERIM ORDER


(Friday, 19th January 2024)

(Through Video Conferencing)


1. The complainant above named has filed this online complaint before the
MahaRERA on 31-07-2023, mainly seeking reliefs from MahaRERA against
the respondent - promoter to refund the entire amount paid by the
complainant along with interest and compensation as prescribed under the
provisions of section 18 of the Real Estate (Regulation & Development) Act,
2016 (hereinafter referred to as ‘RERA’) in respect of the booking of the flat no.
203 on 2nd Floor in 'E' wing, area admeasuring 1510 sq. ft. carpet area along
with one car parking space in the respondent’s registered project known as


Complaint No. CC006000000396865


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“GREEN WORLD” bearing MahaRERA registration No. P51700003889
located at Digha Airoli, Thane.

2. This complaint was heard on 21-08-2023 and the same was heard finally on 26-
09-2023 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, the complainant
and respondent no. 1 appeared and made their respective submissions.
However, despite the notice of hearing the remaining respondents remained
absent. The MahaRERA heard the arguments of the complainant and
respondent no. 1 and also perused the available records.

3. After hearing the arguments of both the parties, the following Roznama was
recorded in these complaints -
“The complainant is present. The respondent no. 1 is present. As it
transpired during the hearing, the complainant has pointed out that there
is a mediation proceeding going on subsequent to an order of Hon’ble
Bombay High Court as the complainant has filed civil suit for recovery of
the said sums as mentioned in the prayers. Warrants have also been issued
by the Civil Court in the said proceedings. Therefore, both the parties may
bring these facts on record of MahaRERA. In any case once the said facts
are ascertained, this complaint is liable to be disposed of as not
maintainable since this is a parallel proceeding filed in 2023. Accordingly,
both sides are granted two weeks’ time i.e. till 10-10-2023 to upload the
necessary proceedings before the Civil Court and Hon’ble Bombay High
Court.
This matter is reserved for orders suitably after 10-10-2023 based on the
arguments of both the parties as well as documents uploaded in the
complaint.”


Complaint No. CC006000000396865


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4. Pursuant to the aforesaid directions issued by the MahaRERA, the
complainant has uploaded a clarification praecipe along with the exhibits on
the record of the MahaRERA on 09-10-2023. However, the respondent has not
uploaded any reply in the complaint. Hence, the MahaRERA has perused the
available records.

5. It is the case of the complainant that, the respondent no.1 is one of the
promoters of the said project and a proprietorship concern with its operations
being overseen by the respondent nos.2 and 3. The development of the project
has been carried out by the respondent no. 1 and 5 whilst the marketing of the
said project has been undertaken by the respondent no.4. In May 2013, a
representative of respondent no.4 met the complainant with respect to the said
project. After initial interaction, the complainant was personally taken on a
physical tour of the ongoing construction site of the said project. After being
impressed by all the promotional activities and believing in the
representations of the respondents, the complainant proposed that he would
assume the role of an investor and agreed to paid 50% upfront of the
consideration and agreed to pay 50% upon getting the possession of the said
flat. Thus, the complainant booked the said flat in the respondent’s registered
said project for which the respondents issued various letters in the year 2013
and 2015 which acted as allotment letters. The complainant made a payment
of Rs.42,95,200/- out of the total consideration of Rs. 82,60,000/-. The
respondents ensured that the said flat would be ready for possession by 31-12-

2015. The complainant made several requests to the respondents to give a
booking form, plan, cost sheet, and other project-related documents.
Pertinently, section 11(3) of the RERA obliges the respondents to share all such
documents with the complainant. However, the respondents failed to give any
such documents to the complainant. The complainant further stated that,


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section 13(1) of the RERA provides that the promoter shall not accept a sum
more than 10% of the total consideration from an allottee without first entering
into an agreement for sale. Moreover, section 4 of the MOFA provides that the
promoter shall not accept a sum more than 20% of the total consideration of
the flat before entering into any agreement for sale with an allottee. However,
the respondents have not entered into the agreement for sale nor informed the
complainant about the same. On the contrary, the complainant was asked to
make a 50% payment amount upfront. The respondents thereby contravened
section 13(1) of the RERA and section 4 of the MOFA. It was agreed that the
remaining outstanding amount shall be settled at the time of possession.
However, the respondent no. 1 kept issuing several demand letters requesting
further instalment payments towards the said flat. Meanwhile on 24-04-2015,
the respondent no. 1 through respondent no.3 issued a letter to respondent
no.4, stating that the complainant had not come forward for the registration of
the agreement for sale. The complainant sent a reply email to respondent no.4
on 29-04-2015, that as per the understanding between the complainant and the
respondents, the complainant was only required to make part payments. The
respondents assured the complainant that no further payments would be
requested until the time of possession of said flat. The complainant relied on
those assurances, moreover, the complainant expressed his dissatisfaction and
urged the respondent no.4 to facilitate a meeting with the other respondents
to address and resolve the dispute. The conduct of the respondents indicated
their failure to fulfil the commitment and adhere to the specified timeline for
the development and construction of the said project. The complainant made
multiple attempts to contact the respondents, seeking updates on the
construction and development of the said project and seeking an allotment
letter. However, none of the respondents showed any concern or never even
paid a heed to the same. It was further submitted by the complainant that
numerous attempts were made to contact the respondents. However, during


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one such interaction, the representative of respondent no.4 directed the
complainant to contact respondent no.3. Upon reaching out to respondent no.3
the complainant was then directed back to respondent no.4, causing further
frustration and confusion. In an effort to resolve the matter, with no alternative
option available to secure the money, the complainant conveyed his
willingness to settle all outstanding dues and expressed his readiness for the
registration of the same. Consequently, on 28-01-2020, the complainant issued
a legal notice upon the respondents, to which the respondents never
responded. The complainant personally visited the site to inspect the progress
of the said flat. However, the complainant realized that the said flat had
already been sold to another party. On 12-03-2020, the complainant took the
necessary step of filing a police complaint. The police complaint was lodged
with the Commissioner of Police and the Senior Police Inspector, highlighting
the grievances and legal violations committed by the respondents. The
complainant also filed a Criminal
Complaint No. SW
/1800036/2020 on 11-08-
2020 under sections 406,420,120(B) and 34 of IPC, along with section 4 of
MOFA. The Hon’ble Magistrate by taking cognizance of the matter issued a
process u/s 420 and 406 of IPC against the respondents in the said criminal
complaint. The respondents challenged the issuance of process under section
482 of CRPC before the Hon’ble Bombay High Court being Criminal
Application No. 580 of 2023. Under the said application, the respondent
admitted their liability to pay and refund the amount collected from the
complainant. The complainant contended that respondents no. 1 to 3 are
habitual defaulters and have cheated multiple buyers and have been facing
several cases before various courts. Therefore, the complainant being
aggrieved by the actions of the respondents have filed several complaints
before different forums as well as before the MahaRERA seeking refund of the
paid amount along with interest and compensation as prescribed under
section 18 of the RERA.


Complaint No. CC006000000396865


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6. In this case on bare perusal of the webpage information uploaded on the
MahaRERA website, the MahaRERA has noticed that the project land belongs
to one M/s. Western India Tanneries Ltd, who has assigned the development
rights in respect of the project land in favour of the respondent no.1 , a
partnership firm in which the respondent nos. 2 and 3 are the partners.
Thereafter, the respondent no. 1 has executed the joint venture agreement
dated 13-04-2010 with the respondent no.5. Accordingly, the respondent no. 5
has registered this project with the MahaRERA being an ongoing project on
the date of commencement of RERA under the provisions of the RERA. While
registering this project with the MahaRERA , the respondent no. 1 has also
been shown as a co-promoter having area sharing in this project. The
respondent no. 4 has marketed this project as per the complainant.

7. The respondent no. 1 although has appeared for the hearing held on 21-08-
2023 and contested this complaint, however, it has failed to file any reply to
this complaint.

8. However, during the course of hearing held on 26-09-2023, the complainant
appeared in person and informed the MahaRERA that there is a mediation
proceeding going on as per the order of Hon’ble Bombay High Court as the
complainant has filed a civil suit for recovery of the said sums as mentioned in
the prayers. Further, the warrants have also been issued by the Civil Court in
the said proceedings.

9. In view of the submission made by the complainant, after hearing the
submissions of both the parties the MahaRERA has directed them to upload
the necessary proceedings filed before the Civil Court and Hon’ble Bombay
High Court.


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10. However, despite specific directions being given by the MahaRERA, the
respondents have failed to upload any submissions on record of MahaRERA.

11. However, the complainant had also filed an interim application on 09-10-2023
seeking urgent reliefs along with Criminal Application filed by the
respondents before the Hon’ble Bombay High Court on the record of the
MahaRERA, wherein the complainant has reiterated all the submissions
mentioned in his complaint. In addition, the complainant further submitted
that, the MahaRERA, in one such
complaint No. CC006000000196821
against
the respondents, had issued a recovery warrant against the respondents for
default in making refund payment. Pursuant to said recovery warrant, the Ld.
Tehsildar has attached the immovable property of the respondents after
following due process of law. Since the respondents have complied with the
order passed in said complaint, the respondents were in process to remove the
attachment. The respondents before the Hon’ble High Court under second
appeal have paid the amount and settled the dispute with the complainant in
the said complaint. With respect to the same, the complainant stated that, there
will be high possibility that the respondents could establish third-party rights
on said immovable property, making it difficult for the complainant to enforce
any order passed by the MahaRERA. If the attachment on said immovable
property is removed then, there will be high chance that the respondents may
dispose of and/or create third party rights to frustrate the proceedings in the
present complaint. Therefore, it is necessary to keep the attachment on the said
immovable property to secure the interest of the complainant.

12. Further, the complainant has also uploaded an application on 09-10-2023,
wherein the complainant stated that, during the time of the online hearing
which was conducted on 26-09-2023, the mic of the complainant's advocate


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was not working due to some technical issues. However, to explain the case,
the complainant started addressing MahaRERA as he was present in person.
The advocate for the respondent No.1 appraised to the MahaRERA that the
parties were exploring the possibility of a settlement in the mediation referred
by the Hon'ble Bombay High Court. Since, there were technical/network
issues in making submissions in the online hearing, the context of the
mediation was wholly misunderstood as what appeared and recorded in the
roznama. Therefore, the complainant filed this present praecipe to appraise the
true and correct facts before the MahaRERA. There is no parallel proceeding
of the Civil Suit before the High Court pending as recorded in roznama dated
26-09-2023. The facts which were incorrectly recorded in the roznama were,
the complainant has filed a Civil Suit for recovery of the said sums as
mentioned in the prayers. Warrants have been issued by the Civil Court. This
is a parallel proceeding filed in 2023. Pursuant to which the complainant
submitted the true facts and submitted that; the mediation proceedings were
in reference to the Criminal Application No. 580/2023 filed by the respondent
no.1 to 3 before the Hon'ble Bombay High Court. The said Criminal
Application was filed to challenge the issuance of process in Criminal
Complaint Case No.36/SW/2020 filed by the complainant against the
respondents u/s 420 of IPC before Metropolitan Magistrate, 18th Court,
Girgaon, Mumbai; the complainant had also filed its reply to the same. Further,
on 07-08-2023, the Hon'ble Bombay High Court referred the matter to
mediation to explore the possibility of a settlement between the parties.
Pertinently, the said Criminal Complaint has been filed against the
Respondents under sections 420, 34 of IPC seeking criminal prosecution of the
respondents. There is no relief sought to recover the sums in the Criminal
Complaint. Since, the Ld. Metropolitan Magistrate Court issued the warrants
against the respondents, the respondents challenged the Criminal Complaint
proceedings before the Hon'ble Bombay High Court under the said Criminal


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Application. To recover the sums, the complainant has filed this present
complaint before the MahaRERA. The complainant has adopted two distinct
proceedings against the respondents i.e. one to prosecute under Criminal Law
and another to recover the amount with interest under RERA. Therefore, no
parallel proceedings are filed since both proceedings' prayers and reliefs are
distinct. Hence, he has prayed to allow this complaint under the provisions of
the RERA.

13. The MahaRERA has examined the submissions made by both the parties and
also perused the available record. In the present case , the complainant
claiming to be an allottee of this project registered by the respondent no. 1 and
5 has approached the MahaRERA mainly seeking refund of the entire amount
of Rs. 42,95,200/- paid by him towards the booking of the said flat along with
interest on account of delay under section 18 of the RERA and also for violation
of section 13 of the RERA.

14. The complainant has mainly contended that he booked the said flat for a total
consideration amount of Rs. 82,60,000/-, out of which he has paid an amount
of Rs. 42,95,200/- to the respondent no. 1. The respondent no. 1 has agreed to
handover possession of the said flat to him on or before 31-12-2015. However,
despite accepting more than 50% of the total consideration value of the said
flat the respondent has neither executed a registered agreement for sale with
him nor has handed over possession of the said flat to him. Thereby, the
respondent no. 1 has violated the provisions of section 4 of the MOFA and
sections 13 and 18 of the RERA. Hence, he has filed this complaint.

15. The respondent no. 1 with whom the complainant has privity of contract (as
the complainant has booked the said flat with the respondent no.1) has not
disputed the aforesaid facts by filing any reply to this complaint.


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16. However, in this case, the complainant who appeared for the hearing in person
has informed MahaRERA about the pending parallel proceeding before the
Hon’ble High Court at Bombay wherein the mediation was ordered by the
Hon’ble High Court at Bombay. He also informed the MahaRERA about the
filing of the suit before the Hon’ble Civil Court , wherein a warrant has also
been issued by the Hon’ble Civil Court. Hence, the direction was given to
both the parties to upload necessary documents on record of MahaRERA.

17. Accordingly, the complainant has filed his written submissions in the form of
clarification application on record of MahaRERA stating that there is no
proceeding filed by him before the Hon’ble Civil Court seeking reliefs for
refund and there is no warrant issued by the Hon’ble Court. In the Criminal
Revision Application No. 580 of 2023 filed by the respondent nos.1 to 3 before
the Hon’ble High Court against the process issued by the under section 420
and 34 of the IPC. In the said Criminal Application the Hon’ble High Court
vide an order dated 7-08-2023 has referred the matter for mediation. The
complainant has also stated that the said proceeding is filed for criminal action
against the respondent nos. 1 to 3 and not for refund of the money. Also, the
present complaint filed for refund of the money paid to the respondent no. 1.
Hence, he has stated that there is no parallel proceeding pending before any
other court. However, the said facts could not be put up before the MahaRERA
by the complainant as his advocate could not address the matter during the
hearing held on 26-09-2023 due to some technical issue as his mic was not
working. Hence, the complainant prayed to allow this complaint. To support
his contentions, the complainant has uploaded a copy of Criminal Revisions
Application No. 580 of 2023 filed by the respondent nos. 1 to 3 before the
Hon’ble High Court at Bombay.


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18. On bare perusal of the said application, it appears that the same is filed by the
respondent nos. 1 and 3 against the process issued by the Ld. Magistrate Court
under section 156(3) of the CRPC in the complaint filed by the complainant
herein under sections u/s 406, 420, 120(B), 34 of IPC. It shows that the said
proceeding is separate proceeding initiated by the complainant under the
separate law, which has nothing to do with the present proceeding filed under
the provisions of the RERA. Needless to state here that the said criminal
proceeding will take its own recourse in law. Furthermore, even if the matter
would be settled before the Hon’ble High Court at Bombay, the same would
definitely have an impact on the present proceeding filed for refund under the
provisions of the RERA. In addition to this, the MahaRERA has also noticed
that the respondent no. 1 has appeared but has failed to submit any cogent
documentary proof on record of MahaRERA to show that there is any parallel
proceeding filed by the complainant herein seeking similar reliefs as sought
for in this complaint.

19. In view of this fact, the MahaRERA is not inclined to dismiss this complaint on
the grounds of pending parallel proceedings. However, as on date since the
matter is sub-judice before the Hon’ble High Court at Bombay and ostensibly
because the same is referred for mediation vide an order dated 7-08-2023, in
the fitness of justice, the MahaRERA feels it just and proper to wait till final
disposal of the said pending criminal revision application before the Hon’ble
High Court at Bombay to avoid multiplicity of the proceedings.

20. In view of these facts, the following order is passed:-
a. The present complaint is adjourned sine die till final disposal of the
pending Criminal Revision Application No. 580 of 2023 filed before
the Hon’ble High Court at Bombay.
b. However, liberty is granted to the complainant to approach


Complaint No. CC006000000396865


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MahaRERA after final disposal of the said pending Criminal
Proceeding pending against him if need be.


(Mahesh Pathak)
Member – 1/MahaRERA