In case of respondents’ failure to execute and register the agreement, the Secretary of MahaRERA shall execute and register the agreement on behalf of the respondents at the cost of the complainant.The agreement for sale executed by the Secretary of MahaRERA will be deemed to be the agreement executed by the respondents themselves and shall be binding on them

 In the Matter of Gaurav Makkar Vs.Shining Sun Constructions Complaint no. CC006000000001389 decided on 31.05.2018 before Maharashtra Real Estate Regulatory Authority

Maharashtra Real Estate Regulatory Authority directed the Secretary of Maha RERA to execute and register the agreement of sale on behalf of the respondents at the cost of the complainant.

MahaRERA, said, “In case of respondents’ failure to execute and register the agreement, the Secretary of MahaRERA shall execute and register the agreement on behalf of the respondents at the cost of the complainant.”

“The agreement for sale executed by the Secretary of MahaRERA will be deemed to be the agreement executed by the respondents themselves and shall be binding on them”, he added

Later on June 26, 2018, respondent executed the agreement hence, the proceeding is terminated as the complainant’s claim is fully satisfied.

Gaurav Makkar (complainant) filed a case against Shining Sun Constructions (Marble Arch) respondent on March 23, 2018, the complainant complains that he has booked flat no. 702 in respondents’ registered project Marble Arch situated in Sector 14 Panchanand, Taloja, New Bombay. Though the respondents received more than 10% of the total consideration of the flat, they failed to execute the agreement for sale in complainant’s favour and thereby contravened Section 13 of Real Estate (Regulation and Development) Act,2016 (RERA.)

The complaint was decided on  March 23, 2018. The respondents have been directed to execute the agreement for sale in complainant’s favour of flat no.702, Marble Arch situated at Plot no. 104, Sector-14, Panchnand, Taloja, Navi Mumbai by end of March 2018 and also to pay her Rs. 20,000/- towards the cost of the complaint. A penalty of Rs. 50,000 is also imposed u/s 61 of RERA.

The Judge said the complainant complains that the respondents have not complied with the order. Hence it requests to execute/enforce the same.

RERA to have jurisdiction even where agreement for sale is cancelled prior to RERA ; Scope of RERA also extends to disputes arising prior to RERA, where consideration paid to developers was still with them, even after RERA came into force

 In the Matter of Champatlal Jain, Parvin Dumasia and 6 Others vs Suriti Developers Private Limited Complaint no. decided on 04.06.2018 Before Maharashtra Real Estate Regulatory Authority

The Complainants had purchased apartments in Respondent's project Universal Paradise in Mumbai, between 2007 and 2013.The Complainants stated that registered agreements for sale (Agreements for Sale) were entered into with the Respondent for purchasing the apartments and that sometime in February 2017, the Respondent unilaterally cancelled the Agreements for Sale. Aggrieved by the termination notices, the Complainants approached the MahaRERA seeking that the Agreements for Sale ought to be declared valid, legal, subsisting and binding.

The Complaint was disposed of by the MahaRERA stating That though the Agreements for Sale were cancelled by the Respondent before the RERA came into force, in view of the fact that the consideration paid by the Complainants was still with the Respondent, the MahaRERA had complete jurisdiction to hear and adjudicate the complaint. if the Complainants chose to continue, both parties should execute the Agreements for Sale in accordance with Section 13 of the RERA and in addition, do so within 45 (forty-five) days from the date of the Order.

The Order has clarified that the scope of RERA also extends to disputes arising prior to RERA, where consideration paid to developers was still with them, after RERA came into force.

Even when the Agreement does not contain the Date of Possession the Complaint is maintainable for refund. when no date of possession is mentioned in the agreement the Promoter is expected to hand over the possession within reasonable time.

 In the Matter of Vrajesh Hirjee v/s Skyline Construction Company Complaint number CC006000000057101 decided on 21.02.2019

the matter was before Maharashtra Real Estate Regulatory Authority

Parties have entered into agreement for sale but there is no mention of the date of possession. The learned advocate of the respondents therefore submits that  the date of possession is kept blank with the consent of the Parties and no date of possession was agreed upon The respondents have pleaded not guilty and have filed their reply to contend that the complaint is not maintainable because there is no agreed date of possession mentioned in the agreement

According to the Honorable court Section 13(2) of RERA  the promoter is liable to enter into a written agreement for sale and mention in it the date by which the possession of the flat is to be handed over to the Purchaser, Hence, the respondents cannot take disadvantage of their own wrong. In this case the Honorable court relied upon the matter of Fortune Infrastructure-v/s-Travor D'lima (2018) 5 SCC 442 so The respondents were directed to pay the aforesaid amount with simple interest at the rate of 10 55% per annum from the date of receipt till their repayment.

Section 12 Refund - Developer to deal with Bank Directly in case of Refund in Subvention Scheme

 In the Matter of Mohan Vamsi Vs M/s Dewan housing Finance  ( Complaint no. CC006000000193176) the Maharashtra Real Estate Regulatory Authority has Ruled that

In Case of Refund in the Project where the Subvention Scheme is involved, the Builder has to deal directly with the bank and to return the money taken under Subvention scheme. The Complainant will have not  have any role between the builder and the bank.

 In the Earlier matter of khyati shah v/s rajsanket realty limited Complaint number CC006000000141031 Decided on 08/01/2020

The Complainant Filed the complaint seeking directions to the respondent to refund the entire amount paid by the complainant along with interest under the provision of section 18. The complainant purchased the flat in respondent’s project under the Subvention scheme whereby paying 20% of total amount 1,98,14,750/- . Agreement to sale was also registered on 06/09/2013. Out of The remaining amount 75% was to be paid by the ICICI bank immediately on registration of agreement to sale and balance 5% on the Possession of the flat. The interest on that amount in the form of PRE-EMIs was to be paid by the respondent builder.

Date of Possession was not mentioned in the agreement of sale. The respondent builder in contravention of the agreement stopped paying pre-emi to the Icici bank so icici issued several demand letters to the complainant to pay the pending amount.

The honourable tribunal observed that “the date of possession was not mentioned in the agreement for sale but the respondent no. 1 agreed to pay the monthly EMI to the respondent no. 2 till the possession is given to the complainant. since it has stopped paying EMI from march,2019 the same can be taken as the date of possession, Hence the complainant, who is an allottee is entitled to seek relief under section 18 of the RERA and the refund sought by the complainant, under section 18 is justified.”

The Honourable tribunal further added that “ The respondent number 1 ( The builder) is further directed to deal with the bank under subvention scheme for the remaining amount payable to the respondent number 2 viz. ICICI bank as the complainant is not liable to pay anything to the respondent number 2.”

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.

RERA is applicable to state run entities too

 In September 2020, the Rajasthan RERA in a landmark decision held that the RERA Act is mandatory in nature. 

In Vinod Agarwal Vs. Jaipur Development Authority (JDA) RAJ -RERA-C-2020 -3622, the complainant said that he had participated in an auction organized by JDA and was allotted a plot in the project. He had also deposited 15% of the amount with JDA. However, JDA further issued a demand note of 35% of the amount and 15% interest in case of delay, without executing the agreement for sale. 

As per RERA Act, the developer is not allowed to accept more than 10% of the cost without executing or getting an agreement of sale registered. 

The argument put forth by the respondent was that it is a statutory development authority, it is guided by Rajasthan Improvement Trust (Disposal of Urban Land) Rules, 1974. Further, it was added that the auction conditions did not stipulate any specific requirement for executing an agreement of sale. Also, the auction of the plot took place on an as-is-where-is basis. 

However, RERA ruled that the project was registered under it and thus, all rules and regulations under the Act would be applicable to the project as well and directed JDA to execute the sale agreement before demanding an additional amount. Section 13 of the Act mandates the execution of the sale agreement. 

The Complete order can be found at https://rera.rajasthan.gov.in/Content/pdf/Vinod%20Agarwal.pdf