MahaRERA - Section 15 only deals with voluntary transfer of a real estate project from an Existing Promoter to a new developer, wherever it is not a case of voluntary transfer by the Existing Promoter to the Incoming Promoter but through Planning Authorities, section 15 cannot be made applicable.

Section 15 only deals with voluntary transfer of a real estate project from an Existing Promoter to a new developer, wherever it is not a case of voluntary transfer by the Existing Promoter to the Incoming Promoter but through Planning Authorities, section 15 cannot be made applicable. 

Suo Motu Case No. 300 0F 2024 & Suo Motu Case No. 301 of 2024

Before the Maharashtra Real Estate Regulatory Authority, Mumbai

Date of Order March 27 , 2024

Fact of the Case:- 

• Some Slum land was situated in Kurla, Mumbai which is a declared slum.
• In the Year 2013 ,The Slum Rehabilitation Authority (SRA)  issued an LOI for its re-development to the RADIUS & DESERVE BUILDERS LLP.
• The RADIUS as promoter had registered 2 projects under section 5 of the RERA Act,2016 with the MahaRERA Authority.
• The Projects however did not move forward.
• on Date 20.09.2021, The SRA then under Section-13(2) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act,1971 (Slum Act) passed an order , removing RADIUS as the Promoter.
• SRA permitted the societies to pass a general body resolution terminating the RADIUS as Promoter and appointment of a new developer of their choice.
• on 29.01,.2023 The Societies ,in their general body meeting, in the presence of the Assistant Registrar, SRA, terminated RADIUS  as the developer for the SRA scheme of redevelopment of the three societies and appointed the Incoming Promoter CHANDAK REALTORS PRIVATE LIMITED as the new developer.
• An LOI dated 12.04.2023 was issued by the SRA to the incoming Promoter CHANDAK.
• On 04.09.2023, an application was made by the Incoming Promoter CHANDAK seeking change of Promoter for the said Projects. 
  

The Authority Framed the following Questions for consideration:-

1. weather the change of promoter application is maintainable under section 15 of the Act?
2. whether the incoming Promoter as appointed by the societies and confirmed by the SRA can be regarded as a Promoter under the said Act?
3. who would be responsible for the obligations towards the earlier allottees?

Observations made by the Hon’ble Court:-

• From the plain reading of section 15, it is clear that this section is applicable in cases where there is a transfer of a real estate project from an Existing Promoter to a new developer i.e. Incoming Promoter. 
• In the present case the said Projects are not transferred to the Incoming Promoter (new developer) by the Existing Promoter, but the Incoming Promoter is being appointed by the societies as the Existing Promoter was terminated by the societies and SRA on account of various defaults and SRA who is the Planning Authority has confirmed the appointment of the Incoming Promoter herein.
• This is not a case of voluntary transfer by the Existing Promoter to the Incoming Promoter. 
• The section 15 deals with voluntary transfer, Thus, a change in Promoter as envisaged under section 15 cannot be made applicable here..
• in SRA projects, It is the promoter  who constructs the rehabilitation houses and finances those by selling houses in the free sale component. 
• Every project must have a promoter which is either a private or a government entity who carries the project forward delivering the promised homes which is in the interest of the consumers.
• ln this particular case it is the SRA that is mandated to recognize the Promoter and provide him with the legal Authority to enter upon the land which is declared as slum and to cause to construct both the rehabilitation component and the sale component.
• The SRA in this case has passed the order appointing the incoming Promoter as the new developer. In effect it is this appointee who will now have rights to enter upon the land construct the same and subsequently enable conveyance to the societies.
• This section mandates that advertising, marketing, booking, selling and all other such related activities can only be done by the promoter. 
• Hence in this case for the said Project to move forward and to enable the Incoming Promoter to market advertise and sell the project the Incoming Promoter would have to be recognized as a promoter.
• Since the appointment of the Incoming Promoter does not fall under section 15 the obligation towards the allottees cannot be fastened on the Incoming Promoter.
• While terminating the Existing Promoter and issuing the LOI to the Incoming Promoter the SRA has clearly directed that the Incoming Promoter is to reimburse amounts spent by the Existing Promoter. 
• The Incoming Promoter is now under an obligation to ensure all expenditure incurred on the said Project by the Existing Promoter is reimbursed to him.
• The Incoming Promoter on assuming the role of the Promoter will not be saddled with the obligations of the existing allottees of the Existing Promoter. The existing allottees stand protected and can enforce their claims against the Existing Promoter.

Court’s Order:-

1. The Incoming Promoter to apply to MahaRERA for a new / fresh registration

number with respect to the said Project Nos. 1 & 2 as per rules and procedures

laid down under the said Act.

2. A new / fresh registration number to be issued to the Incoming Promoter after

due scrutiny of the registration application filed by them with respect to the said

Project Nos. 1& 2.

3. The Incoming Promoter to open a new designated bank account as per rules and

procedures laid down under the said Act for execution of the project.

4. The existing registration of the said Project Nos. 1 & 2 i.e. P51800009827 and

P51800005533 allotted to the Existing Promoter be kept in abeyance till

obligations of the existing allottees are settled.

5. The Existing Promoter shall not advertise, market, book, sell or offer for sale, or

invite person/s to purchase in any manner any apartment in the said Project

Nos. 1 & 2.

BOMBAY HIGH COURT - The liability of refund falls upon all the listed promoters even if they may not have received the amount in consideration.

BOMBAY HIGH COURT - The liability of refund falls upon all the listed promoters even if they may not have received the amount in consideration.

Wadhwa Group Housing Private Ltd vs Vijay Choksi & SSS Escatics Pvt. Ltd

SECOND APPEAL (Stamp) NO. 21842 OF 2023

Decided on 26 February 2024

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

Time line of the Matter :-

1. Allottee approached MahaRERA U/s 12 and 18 of the RERA act and sought refund of amount of Rs.2,62,35,056/- along with interest as well as compensation and costs.
2. On 24/09/2021 MahaRERA passed the Order holding that Allottee could not claim any equity under the provisions of act and his prayer for refund was rejected, and directed parties to execute registered agreement for sale within 30 day failing which the entire amount was directed to be refunded to the Allottee within six months.
3. Allottee filed Appeal U/s 43 of the RERA Act before the Appellate Tribunal.
4. On 18/10/2022 Appellate Tribunal partly allowed the appeal and set aside the Order directing both the Builders to Jointly refund the amount paid by the Allottee with interest.
5. Aggrieved by the Appellate Tribunal’s Order to put the liability to refund the amount received by SSS Escatics Pvt. Ltd the other Builder Wadhwa Group Housing Private Ltd chose to file this appeal.

Question of Law Framed in Second Appeal

"Whether a promoter who has not received any consideration from an allottee can be made liable for giving refund with interest under Section 18 of the Real Estate (Regulation and Development) Act, 2016?"

Fact of the Case:-

1. Builder SSS Escatics Pvt. Ltd, launched a project called “The Nest” as a Slum Rehabilitation Scheme.
2. On 05/09/2012 A JDA (Joint Development Agreement) came to be executed between both the Builders SSS Escatics Pvt. Ltd and Wadhwa Group Housing Private Ltd.
3. Under the said JDA Wadhwa and SSS segregated the constructed area amongst themselves for being sold to customers.
4. On 19/07/2013, Allottee booked a 3BHK Flat bearing B-502 admeasuring 2385 sq.ft in the said project for agreed consideration of Rs.2,65,35,000/-
5. Allottee paid an amount of Rs.1,20,00,000/- towards part consideration.
6.  On 24/07/2013 SSS issued allotment letter to Allottee.
7. The project remained incomplete on the date of coming into force of RERA Act, 2016.
8. The project was accordingly registered as ongoing project under Section 3 of the RERA by SSS in which the Wadhwa was declared as a Promoter (Investor).

Submissions by Appellant

1. Wadhwa cannot be held responsible for refund of any amount to the Allottee as he has not paid any amount to the Wadhwa and that therefore there is no question of refunding any amount to him.
2. As per the JDA both builders identified their respective entitlements in constructed portion of the building and the flat in question falls in the share of SSS, and it  alone received the entire consideration from the Allottee thereby no question of Wadhwa refunding the amount which it did not receive.
3. Mere a change in law requiring reflection of name of wadhwa as Promoter does not create its liability, which did not exist prior to introduction of RERA.  

Submissions by Respondent

1. Wadhwa is undoubtedly covered by definition of the term ‘Promoter’ per se Section 2(zk) of RERA.
2. Definition U/s 2(zk) makes it clear that all promoters are jointly liable under the Act.
3. That a promoter cannot be permitted to defeat the rights of the flat purchasers by making internal arrangements with investors, land owners, etc 

observations made by the Hon’ble Court

1. There appears to be no dispute that the payments were made by the Allottee to the SSS.
2. it is necessary to determine whether Wadhwa falls in the definition of the term ‘promoter’.
3. While registering the project as ongoing project under Section 3 of the RERA, Wadhwa’s name has been included in the list of Promoters. Therefore, Wadhwa cannot run away from the fact that it is the promoter in respect of the project ‘The Nest’
4. Mere falling of flat in the share of the SSS under the JDA would not excuse the Wadhwa from the responsibilities and liabilities under the RERA, Rules and Regulations made thereunder qua that flat. 
5. RERA does not demarcate or restrict liabilities of different promoters in different areas and the liability is joint for all purposes under the Act, Rules and Regulations
6.  Since the Wadhwa is covered by definition of the term ‘Promoter’, it is also jointly liable to refund the amount along with the SSS.
7. Distinction between projects launched before and after coming into force of RERA cannot be a ruse to escape the liabilities as promoter under RERA.
8. The Wadhwa’s contention about absence of privity of contract between it and the Complainant is totally misplaced as it is a matter of indoor management between the Promoters and the flat purchaser who is not supposed to know the intricacies of the arrangements made between several promoters amongst themselves.

Court’s Order

Accordingly the Second Appeal is accordingly dismissed with costs.

Authority is competent only to deal with violations or contraventions of the Act.,Authority is not the appropriate forum for settlement of disputes between the land owner and the promoter or between partners in business

 In the Matter of Raghunath Prasad Jain Vs Arihant Dream Infra Projects Ltd. Complaint no.RAJ-RERA-C-2017-2105 decided on 12.06.2019 before Rajasthan Real Estate Regulatory Authority.

• The Rajasthan Real Estate Authority presided by Shri Nihal Chand Goel and Shri Rakesh Jain held that the promoter has no obligation towards the land owner or his partners in business. 

• All the obligations of the promoter enumerated under the Act are either towards the allottees or towards the Authority, but there is no obligation the promoter has towards the land owner or his partners in business. And, the Authority is competent only to deal with violations or contraventions of the Act. 

• Thus, the Authority is not the appropriate forum for settlement of disputes between the land owner and the promoter or between partners in business;and this complaint of the land owner against the promoter is not maintainable under the Act.

• In this case, the agreement for sale executed between the allottees and the non-complainant, it was promised to deliver the possession of the project by October, 2016. Promoters challenged the maintainability of the complainant as it has been wrongly invoked under RERA as the complainant is not an allottee, but the land owner and business partner, who has been duly shown as a co-promoter in the application for registration filed before the Authority, under his consent. 

• The Act provides for remedial action for the allottees or customers being buyers of the developed property; and the disputes inter-se between the developer and the owner of land are not under the ambit and jurisdiction of RERA.

x

Land Owners can’t be Punished in Joint Ventures – Tamil Nadu RERA

 In a complaint filed by Shankari Sundararaman (“Complainant”) against Sree Vardhana Builders Private Limited (“Company”), 265 of 2020 its directors and landowners of the Project named ‘Vardhana Constellation’ in Coimbatore, for claiming refund of amounts paid towards the purchase of the flat under Real Estate (Regulation and Development) Act, 2016 (“Act”), the Tamil Nadu Real Estate Regulatory Authority, Chennai (“TNRERA”) stated that since directors are actively involved in the affairs of the Company and have received money and corresponded with the Complainant, they would be liable for violations under Section 69 the Act which deals with offences by companies and people responsible for the conduct/business of the company. 

However, with respect to landowners of the project site (being the other respondents), TNRERA stated that the landowners had just entered into joint venture agreements and had executed general power of attorney with the Company. The sale deeds for the undivided share of land was only executed by the Company and not the landowners. 

Further, it was stated that it was the Company that had launched the project and had entered into various agreements with the Complainant for construction and delivery of the constructed apartment on receiving consideration. 

Henceforth, the landowners would not come under the definition of “promoter” and only the Company would fall under the definition of “promoter” to be made liable for contravention under Section 31 read with Section 71 of the Act

Promoters are NOT entitled to exemption from compliance of Proviso of Section 43(5) of the Real Estate (Regulation and Development) Act, 2016

 IN THE MATTER OF: 

M/s Mahanagar Reality & Ors. Vs. Dinesh Ramlal Oswal & Anr. (Decided by the Hon’ble Maharashtra Real Estate Appellate Tribunal, Mumbai) 

Issue: 

 Whether the Promoters are entitled for exemption to make compliance of Proviso of Section 43 (5) of the Real Estate (Regulation and Development), Act, 2016? 

Facts: 

 Promoters being the Applicant preferred an appeal against the impugned order dated 10.01.2019 wherein the promoter was directed to refund of the amount paid by the allottees along with the interest amounts. 

 Thereafter, the Promoters filed an application for waiver of pre-deposit mandated under Section 43(5) of Real Estate (Regulation and Development) Act, 2016 before the Hon’ble Appellate Tribunal. 

Observations and Findings of the Hon’ble Tribunal: 

 The Hon’ble Appellate Tribunal observed that, it is mandated under the Real Estate (Regulation and Development) Act, 2016 that the promoter who prefers an appeal has to deposit the amount(s) and comply with the Proviso of Section 43 (5) of the Real Estate (Regulation and Development) Act, 2016 for entertaining and hearing the appeal, and that deposit in respect of the same is a prerequisite. 

 The Hon’ble Tribunal also observed that the right to appeal can be conditional and quantified. 

 The Hon’ble Tribunal further observed that the Hon’ble Supreme Court has previously settled this principle that any statute has to be interpreted in the context in which the words by are used in that particular statute. 

 Real Estate (Regulation and Development) Act, 2016 being a special legislation enacted to protect to the interests of the allottees cannot grant any exemption/ waiver to the promoter from pre-deposit of the amounts to be made under Section 43(5) of Real Estate (Regulation and Development) Act, 2016

The provisions of the Real Estate (Regulation and Development) Act, 2016 can be invoked without entering into an agreement between the developer and the homebuyer

 IN THE MATTER OF: M/s Casa Grande Civil Engineering Pvt. Ltd. Vs. Mr. P. Govindraj, Mrs. Deeparaj (Decided by Hon’ble Tamil Nadu Real Estate Appellate Tribunal- TNREAT)

Issues: 

 Issue 1 - Whether the provisions of the Real Estate (Regulation and Development) Act, 2016 can be invoked without entering into an agreement between the developer and the homebuyer? 

 Issue 2 -Whether the order of the Hon’ble Adjudicating Officer is an erroneous one? 

 Issue 3 -Whether the appeal deserves to be allowed or not?

Facts: 

 Promoters being the appellant preferred an appeal against the impugned order dated 31.07.2019 passed by the Hon’ble Adjudicating Officer in CCP.No. 78/2019 for settling of an issue pertaining to whether without entering into a contract the homebuyers have the locus standi to invoke the provisions of the Real Estate (Regulation and Development) Act, 2016? 

 The appellant/ promoter had advertised in newspaper sale of flats in the residential real estate project. 

 The homebuyer and the developer mutually agreed for consideration payable in respect of the same. The homebuyer was asked to pay amounts towards consideration in respect of the proposed purchase of the residential flat in the real estate project. Thereafter, an acknowledgment letter was issued by the appellant/ promoter acknowledging the receipt of payment and providing for other terms and conditions. 

 The terms and conditions of the said acknowledgment letter further provided for non-payment of goods and services tax that was subsequently asked to be paid by the homebuyer. Subsequently, the appellant/ promoter even reduced the area of residential flat proposed to be sold. Stemming from the above mentioned facts and events, the homebuyer decided not to sign any definitive agreement. 

 The homebuyer further appeared before the Hon’ble Adjudicating Officer complaining about of violation of Section 12 and 13 of Real Estate (Regulation and Development) Act, 2016. 

 The Hon’ble Adjudicating Officer ruled that the appellant/ promoter had violated the provisions of Section 12 and 13 of Real Estate (Regulation and Development) Act, 2016. Hence, in lieu of the same, an appeal was preferred by the appellant/ promoter.

Observations and Findings of the Hon’ble Tribunal: 

Findings on Issue 1- 

 The Hon’ble Tribunal observed that if the letter was only an acknowledgment of payment, why were certain terms and conditions mentioned in the same? The Hon’ble Tribunal even questioned the Appellant/ Promoter for incorporating terms and conditions before entering into any agreement. 

 The Hon’ble Tribunal further observed that the letter was relied on for repayment so the developer cannot say that it is not binding. 

 The Hon’ble Tribunal upheld the findings of the Hon’ble Adjudicating Officer that Section 12 and 13 of Real Estate (Regulation and Development) Act, 2016 were violated by the appellant/ promoter, as the project falls within the ambit of an ongoing project. 

 Thus, the Hon’ble Tribunal observed that the provisions of Real Estate (Regulation and Development) Act, 2016 can be invoked even without entering into an agreement.

Findings on Issue 2- 

 The Hon’ble Tribunal further modified the compensation to Rs.1,00,000/- awarded as opposed to 9% as awarded by the Hon’ble Adjudicating Officer. 

Findings on Issue 3- 

 As issue 1 was decided against the Appellant/ Promoter and issue 2 was modified by the Hon’ble Tribunal. 

Thus, the said appeal was allowed by the Hon’ble Tribunal, in part.

When a person who sells the apartments is different than the one who Constructs it, then both are jointly liable

in  Maha Rera order dated 5th March 2021 in the case of Gauri Thatte V/s Nirmal Developers & Shapoorji Pallonji (COMPLAINT NO: CC006000000192458 ) 

Fact of the Case

• Nirmal Developers and Mr. Dharmesh Jain are the Promoters of the project known as Code Name-Mumbai Dreams situated at Mulund west. 

• They appointed shapoorji Pallonji Private Limited's subsidiary Lucrative Properties Private Limited as Development Manager for providing assistance in the management, planning, supervision of the project and use of their brand name for the fees to be paid and on the terms and conditions mentioned in the development management agreement dated 27.O4.2O18

• By that time, Nirmal Developers already sold 1.71 lakh sq. ft. or thereabout residential area to the prospective purchasers' 

• Lucrative Properties Private Limited undertook the responsibility of marketing and branding the project for fees.

• The name of Lucrative Properties Private Limited is mentioned in the category of "Other Professional" and not as promoter on the web page of the project.

• Clause 3.2.1 thereof provides that from condition precedent completion date, the development manager (Lucrative Properties Private Limited) wiil associate the Brand Name solely for the purpose of branding and Marketing the Project in its capacity as Development Manager for the Project.

• Clause 3.2.5 shows that they agreed that the name of the Development Manager and the Developer and their respective logos shall appear on all the brochures, pamphlets, handouts' websites' and all print and electronic media for Marketing the Project' as per branding policies in terms of the Brand Licensing Agreement and as may be approved by the Development Manager'

• Clause 4.2 provides that, during the term of the agreement' the development manager shall in addition to all other functions of development manager as contained in the agreement have the exclusive right to 

• 4.2.1-. manage, plan, supervise the project up to completion thereof and 

• 4.2.2 prepare the mutually agreed business plan in terms of the agreement

where it has been held that 

• development manager having exclusive right to sell the units of the project is included under the definition of the promoter. 

• when a person who sells the apartments is different than the one who Constructs it, then both are jointly liable

• It was argued that under Sec 2(zk) of RERA Act where the person who constructs a building into apartments or develops a plot for sale and the persons who sell apartments or plots are different Persons, both of them shall be deemed to be the Promoters and shall be jointly liable as such for the functions and responsibilities specified, under RERA law. 

• The learned Adjudicating Authority accepted this contention and held that the Development Manager is included in the definition of Promoter and directed that the Development Manager be added as promoter on the RERA web page within 30 days and 

• that Nirmal Developers and Lucrative (subsidiary of Shapoorji) shall refund the amounts of the complainants with simple interest at the rate of 9% per annum from the date of their receipt till their refund. 

Full text of the judgment is attached

https://media-exp1.licdn.com/dms/document/C4D1FAQFVTtwQRyJ-1w/feedshare-document-pdf-analyzed/0/1616418248675?e=1617728400&v=beta&t=UYChkxffBtL3u5aJ_1Gz4ZIY7sZ4O8jiijcQtpN1s34

    

Complaints can be instituted against promoters in relation to both projects which have been registered with the authority or which are not registered with the authority

Simmi Sikka V/s M/S EMAAR MGF LAND LTD Complaint number RERA-GRG-7-2018

Haryana Real Estate Regulatory Authority Gurugram 

The judgement contains the following conclusions

• The RERA Act, nowhere mentions anywhere that it is applicable only for the registered projects.

• The RERA Act, provides certain categories of projects which are not required to be registered but these are within the ambit of the Act. These projects mentioned in section 3(2) have been taken out of the registration requirement but not out of the purview of other provisions of the Act.

• The provisions regarding registration and obligation during registration are applicable only for the registered projects.

• The obligations of the promoter’s post expiry of the validity of the registration provided in the Act are applicable to even the real estate projects exempted from the registration.

• The projects which were completed and handed over during the last 5 years are 

covered for the purpose of workmanship and structural defect liability.  A complaint may be filed by the allottee in such matter in case the possession of the real estate was within 5 years prior to the date of the complaint.

• All real estate projects are covered for land title defect liability

• A complaint pertaining to violation of the provisions of RERA Act, Haryana RERA Rules, and regulations thereunder, may be filed by any aggrieved person in respect of any real estate project as per the definition given in section 2(zn) of RERA Act.

Based on the above judgment, it may be concluded that registration of project and filing RERA complaint, both are separate activities. A RERA case can be filed even against the non-registered projects.