MahaRERA - To ensure that the said project is not jeopardized due to the outflow of finances 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.

 MahaRERA - To ensure that the said project is not jeopardized due to the outflow of finances 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.

Anil Kumar Dattani Versus Real Gem Buildtech Private Limited & Ors. Complaint No. CC006000000292852 Before the Maharashtra Real Estate Regulatory Authority Mumbai Decided on 13th May 2024)

Fact of the Case :-

• Respondent no. 1 i.e. Realgem Buildtech Private Limited  is the Promoter of the project.
• Respondent no. 2 i.e. Bhishma Realty Limited is the landowner of the project.
• Respondent no. 3 i.e Kindmaker Developers Private Limited  has been appointed as a Development Manager under the development management agreement dated 18-03-2018 and is basically an agent of the respondent no. 1 functioning for a fixed fee. the respondent no. 3 was appointed for the purposes of 
• inter alia managing, 
• monitoring, 
• supervising and 
• coordinating the construction and 
• development of the said project 
• together with the sales and marketing related activities including customer relationship management.

• The subject matter of the case is flat bearing no. 2302 on 23rd floor in the “RUSTOMJEE CROWN - PHASE I" at Prabhadevi, Mumbai.
• On 16-01-2019 The respondent issued  the allotment letter in the complainant's name. 
• On 25-01-2019 The complainant and the respondents entered into a registered agreement for sale.
• The respondent had assured to handover the possession of the said flat on 31-12-2021.
• The Flat was for a total consideration of Rs. 7,69,86,000/-
• The Complainant has already paid Rs. 7,41,83,995/- to the respondents from time to time..
• The respondent did not give the possession by the said date.
• On 27-09-2022 the complainant filed the present complaint..

Submissions by Appellant:-

• As per the RERA, the all 3 respondents are jointly and severally liable as per circular no. 12/2017 dated 04-12-2017.

Submissions by Respondent(s):

• The date of possession mentioned in the agreement for sale is 31-12-2021 and the same was subject to provisions of clause 8 of the said agreement which provides for a reasonable extension on occurrence of mitigating events.
• The Covid 19 pandemic was a force majeure event and therefore covered under clause 8 of the agreement for sale. 

Observations made by the Hon’ble Court:-

• the Respondent nos. 1 and 2 being the promoters of this project registered with the MahaRERA are liable to perform their part as stipulated in the registered agreement for sale dated 25-01-2019 signed with the complainant herein.
• With regards to respondent taking the plea on the issue of jurisdiction as per clause 16.1 of the said agreement for sale wheras the complainant has agreed for arbitration in case of any dispute arising in respect of the said agreement for sale.MahaRERA is of the view that the same is raised at a belated stage by filing its reply on record of MahaRERA,
• Further, there are no explicit provisions under RERA about the arbitration clause. Hence,the same stands rejected.
• As far as the issue raised by the complainant about GST input credit not being provided to him, the MahaRERA is of the prima facie view that the same does not fall within the purview of the MahaRERA under the provisions of the RERA. 
• However, it is for the concerned competent forum to deal with such issues. Hence, the complainant need to approach the appropriate forum for redressal of the said grievances about the GST. 
• The MahaRERA is not going to deal with the said issue for want of jurisdiction.
• the MahaRERA is of the view that the delay cited by the respondent such as delay in obtaining CFO NOC due to change in fire norms and the delay in obtaining NOC from MPCB do not fall within the force majeure factors mentioned in the draft model agreement for sale prescribed under the RERA and the relevant rules made thereunder.

Court’s Order:-

• The respondent promoter is directed to pay interest for the delayed possession to the complainants from 01-01-2023 ( as per agreements for sale i.e. 31-12-2021 + 1 year grace period due to Covid-19 Pandemic i.e. 31-12-2022) for every month till the actual date of possession of the said flat to the complainant or till the date of offer of possession with OC if any obtained by the respondent promoter. 
• to ensure that the said project is not jeopardized due to the outflow of finances 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.

MAHA RERA - The delay in obtaining NOCs including Fire NOC do not fall within the force majeure factors prescribed under the RERA and the relevant rules made thereunder.

 MAHA RERA - The delay in obtaining NOCs  including Fire NOC do not fall within the force majeure factors prescribed under the RERA and the relevant rules made thereunder.

Anil Kumar Dattani Versus Real Gem Buildtech Private Limited & Ors. Complaint No. CC006000000292852 Before the Maharashtra Real Estate Regulatory Authority Mumbai Decided on 13th May 2024)

Fact of the Case :-

• Respondent no. 1 i.e. Realgem Buildtech Private Limited  is the Promoter of the project.
• Respondent no. 2 i.e. Bhishma Realty Limited is the landowner of the project.
• Respondent no. 3 i.e Kindmaker Developers Private Limited  has been appointed as a Development Manager under the development management agreement dated 18-03-2018 and is basically an agent of the respondent no. 1 functioning for a fixed fee. the respondent no. 3 was appointed for the purposes of 
• inter alia managing, 
• monitoring, 
• supervising and 
• coordinating the construction and 
• development of the said project 
• together with the sales and marketing related activities including customer relationship management.

• The subject matter of the case is flat bearing no. 2302 on 23rd floor in the “RUSTOMJEE CROWN - PHASE I" at Prabhadevi, Mumbai.
• On 16-01-2019 The respondent issued  the allotment letter in the complainant's name. 
• On 25-01-2019 The complainant and the respondents entered into a registered agreement for sale.
• The respondent had assured to handover the possession of the said flat on 31-12-2021.
• The Flat was for a total consideration of Rs. 7,69,86,000/-
• The Complainant has already paid Rs. 7,41,83,995/- to the respondents from time to time..
• The respondent did not give the possession by the said date.
• On 27-09-2022 the complainant filed the present complaint..

Submissions by Appellant:-

• As per the RERA, the all 3 respondents are jointly and severally liable as per circular no. 12/2017 dated 04-12-2017.

Submissions by Respondent(s):

• The date of possession mentioned in the agreement for sale is 31-12-2021 and the same was subject to provisions of clause 8 of the said agreement which provides for a reasonable extension on occurrence of mitigating events.
• The Covid 19 pandemic was a force majeure event and therefore covered under clause 8 of the agreement for sale. 

Observations made by the Hon’ble Court:-

• the Respondent nos. 1 and 2 being the promoters of this project registered with the MahaRERA are liable to perform their part as stipulated in the registered agreement for sale dated 25-01-2019 signed with the complainant herein.
• With regards to respondent taking the plea on the issue of jurisdiction as per clause 16.1 of the said agreement for sale wheras the complainant has agreed for arbitration in case of any dispute arising in respect of the said agreement for sale.MahaRERA is of the view that the same is raised at a belated stage by filing its reply on record of MahaRERA,
• Further, there are no explicit provisions under RERA about the arbitration clause. Hence,the same stands rejected.
• As far as the issue raised by the complainant about GST input credit not being provided to him, the MahaRERA is of the prima facie view that the same does not fall within the purview of the MahaRERA under the provisions of the RERA. 
• However, it is for the concerned competent forum to deal with such issues. Hence, the complainant need to approach the appropriate forum for redressal of the said grievances about the GST. 
• The MahaRERA is not going to deal with the said issue for want of jurisdiction.
• the MahaRERA is of the view that the delay cited by the respondent such as delay in obtaining CFO NOC due to change in fire norms and the delay in obtaining NOC from MPCB do not fall within the force majeure factors mentioned in the draft model agreement for sale prescribed under the RERA and the relevant rules made thereunder.

Court’s Order:-

• The respondent promoter is directed to pay interest for the delayed possession to the complainants from 01-01-2023 ( as per agreements for sale i.e. 31-12-2021 + 1 year grace period due to Covid-19 Pandemic i.e. 31-12-2022) for every month till the actual date of possession of the said flat to the complainant or till the date of offer of possession with OC if any obtained by the respondent promoter. 
• to ensure that the said project is not jeopardized due to the outflow of finances 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.

Maha RERA - Issue of GST input credit does not fall within the purview of the provisions of the RERA. Hence, the complainant need to approach the appropriate forum for redressal of the said grievances about the GST.

Issue of  GST input credit does not fall within the purview of the  provisions of the RERA. Hence, the complainant need to approach the appropriate forum for redressal of the said grievances about the GST.  

Anil Kumar Dattani Versus Real Gem Buildtech Private Limited & Ors. Complaint No. CC006000000292852 Before the Maharashtra Real Estate Regulatory Authority Mumbai Decided on 13th May 2024)

Fact of the Case :-

• Respondent no. 1 i.e. Realgem Buildtech Private Limited  is the Promoter of the project.
• Respondent no. 2 i.e. Bhishma Realty Limited is the landowner of the project.
• Respondent no. 3 i.e Kindmaker Developers Private Limited  has been appointed as a Development Manager under the development management agreement dated 18-03-2018 and is basically an agent of the respondent no. 1 functioning for a fixed fee. the respondent no. 3 was appointed for the purposes of 
• inter alia managing, 
• monitoring, 
• supervising and 
• coordinating the construction and 
• development of the said project 
• together with the sales and marketing related activities including customer relationship management.

• The subject matter of the case is flat bearing no. 2302 on 23rd floor in the “RUSTOMJEE CROWN - PHASE I" at Prabhadevi, Mumbai.
• On 16-01-2019 The respondent issued  the allotment letter in the complainant's name. 
• On 25-01-2019 The complainant and the respondents entered into a registered agreement for sale.
• The respondent had assured to handover the possession of the said flat on 31-12-2021.
• The Flat was for a total consideration of Rs. 7,69,86,000/-
• The Complainant has already paid Rs. 7,41,83,995/- to the respondents from time to time..
• The respondent did not give the possession by the said date.
• On 27-09-2022 the complainant filed the present complaint..

Submissions by Appellant:-

• As per the RERA, the all 3 respondents are jointly and severally liable as per circular no. 12/2017 dated 04-12-2017.

Submissions by Respondent(s):

• The date of possession mentioned in the agreement for sale is 31-12-2021 and the same was subject to provisions of clause 8 of the said agreement which provides for a reasonable extension on occurrence of mitigating events.
• The Covid 19 pandemic was a force majeure event and therefore covered under clause 8 of the agreement for sale. 

Observations made by the Hon’ble Court:-

• the Respondent nos. 1 and 2 being the promoters of this project registered with the MahaRERA are liable to perform their part as stipulated in the registered agreement for sale dated 25-01-2019 signed with the complainant herein.
• With regards to respondent taking the plea on the issue of jurisdiction as per clause 16.1 of the said agreement for sale wheras the complainant has agreed for arbitration in case of any dispute arising in respect of the said agreement for sale.MahaRERA is of the view that the same is raised at a belated stage by filing its reply on record of MahaRERA,
• Further, there are no explicit provisions under RERA about the arbitration clause. Hence,the same stands rejected.
• As far as the issue raised by the complainant about GST input credit not being provided to him, the MahaRERA is of the prima facie view that the same does not fall within the purview of the MahaRERA under the provisions of the RERA. 
• However, it is for the concerned competent forum to deal with such issues. Hence, the complainant need to approach the appropriate forum for redressal of the said grievances about the GST. 
• The MahaRERA is not going to deal with the said issue for want of jurisdiction.
• the MahaRERA is of the view that the delay cited by the respondent such as delay in obtaining CFO NOC due to change in fire norms and the delay in obtaining NOC from MPCB do not fall within the force majeure factors mentioned in the draft model agreement for sale prescribed under the RERA and the relevant rules made thereunder.

Court’s Order:-

• The respondent promoter is directed to pay interest for the delayed possession to the complainants from 01-01-2023 ( as per agreements for sale i.e. 31-12-2021 + 1 year grace period due to Covid-19 Pandemic i.e. 31-12-2022) for every month till the actual date of possession of the said flat to the complainant or till the date of offer of possession with OC if any obtained by the respondent promoter. 
• to ensure that the said project is not jeopardized due to the outflow of finances 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.

Maha RERA - There are no explicit provisions under RERA about the arbitration clause in agreement for Sale

There are no explicit provisions under RERA about the arbitration clause in agreement for Sale 

Anil Kumar Dattani Versus Real Gem Buildtech Private Limited & Ors. Complaint No. CC006000000292852 Before the Maharashtra Real Estate Regulatory Authority Mumbai Decided on 13th May 2024)

Fact of the Case :-

• Respondent no. 1 i.e. Realgem Buildtech Private Limited  is the Promoter of the project.
• Respondent no. 2 i.e. Bhishma Realty Limited is the landowner of the project.
• Respondent no. 3 i.e Kindmaker Developers Private Limited  has been appointed as a Development Manager under the development management agreement dated 18-03-2018 and is basically an agent of the respondent no. 1 functioning for a fixed fee. the respondent no. 3 was appointed for the purposes of 
• inter alia managing, 
• monitoring, 
• supervising and 
• coordinating the construction and 
• development of the said project 
• together with the sales and marketing related activities including customer relationship management.

• The subject matter of the case is flat bearing no. 2302 on 23rd floor in the “RUSTOMJEE CROWN - PHASE I" at Prabhadevi, Mumbai.
• On 16-01-2019 The respondent issued  the allotment letter in the complainant's name. 
• On 25-01-2019 The complainant and the respondents entered into a registered agreement for sale.
• The respondent had assured to handover the possession of the said flat on 31-12-2021.
• The Flat was for a total consideration of Rs. 7,69,86,000/-
• The Complainant has already paid Rs. 7,41,83,995/- to the respondents from time to time..
• The respondent did not give the possession by the said date.
• On 27-09-2022 the complainant filed the present complaint..

Submissions by Appellant:-

• As per the RERA, the all 3 respondents are jointly and severally liable as per circular no. 12/2017 dated 04-12-2017.

Submissions by Respondent(s):

• The date of possession mentioned in the agreement for sale is 31-12-2021 and the same was subject to provisions of clause 8 of the said agreement which provides for a reasonable extension on occurrence of mitigating events.
• The Covid 19 pandemic was a force majeure event and therefore covered under clause 8 of the agreement for sale. 

Observations made by the Hon’ble Court:-

• the Respondent nos. 1 and 2 being the promoters of this project registered with the MahaRERA are liable to perform their part as stipulated in the registered agreement for sale dated 25-01-2019 signed with the complainant herein.
• With regards to respondent taking the plea on the issue of jurisdiction as per clause 16.1 of the said agreement for sale wheras the complainant has agreed for arbitration in case of any dispute arising in respect of the said agreement for sale.MahaRERA is of the view that the same is raised at a belated stage by filing its reply on record of MahaRERA,
• Further, there are no explicit provisions under RERA about the arbitration clause. Hence,the same stands rejected.
• As far as the issue raised by the complainant about GST input credit not being provided to him, the MahaRERA is of the prima facie view that the same does not fall within the purview of the MahaRERA under the provisions of the RERA. 
• However, it is for the concerned competent forum to deal with such issues. Hence, the complainant need to approach the appropriate forum for redressal of the said grievances about the GST. 
• The MahaRERA is not going to deal with the said issue for want of jurisdiction.
• the MahaRERA is of the view that the delay cited by the respondent such as delay in obtaining CFO NOC due to change in fire norms and the delay in obtaining NOC from MPCB do not fall within the force majeure factors mentioned in the draft model agreement for sale prescribed under the RERA and the relevant rules made thereunder.

Court’s Order:-

• The respondent promoter is directed to pay interest for the delayed possession to the complainants from 01-01-2023 ( as per agreements for sale i.e. 31-12-2021 + 1 year grace period due to Covid-19 Pandemic i.e. 31-12-2022) for every month till the actual date of possession of the said flat to the complainant or till the date of offer of possession with OC if any obtained by the respondent promoter. 
• to ensure that the said project is not jeopardized due to the outflow of finances 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.

the allottees will not lose their right to claim interest for delayed possession merely on the ground that the conveyance deed had already been executed

 Amit Gupta Vs. Athena Infrastructure Ltd.Appeal No.79 of 2020 in Haryana Real Estate Appellate Tribunal,

The complaint filed by the appellant-allottee for grant of interest for delayed possession was dismissed by Ld. Haryana Real Estate Regulatory Authority, Gurugram The only ground taken in the order is that as the conveyance deed had already been executed, so the complaint was not maintainable.

It was held by the Appellate tribunal that 

"In our view the approach of the Ld. Authority is erroneous. The Hon'ble Apex Court in case Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and others vs. DLF Southern Homes Pvt. Ltd. (now known as BEGUR OMR Homes Pvt. Ltd.) and others 2020(3) R.C.R.(Civil) 544 has laid down as under:-

“The developer in the present case has undertaken to provide a service in the nature of developing residential flats with certain amenities and remains amenable to the jurisdiction of the Consumer Fora. Consequently, we are unable to subscribe to the view of the NCDRC that flat purchasers who obtained possession or executed Deeds of Conveyance have lost their right to make a claim for compensation for the delayed handing over of the flats.”

In view of the aforesaid ratio of law laid down by the Hon'ble Apex Court, the allottees will not lose their right to claim interest for delayed possession merely on the ground that the conveyance deed had already been executed. The execution of the conveyance deed cannot extinguish the cause of action which had already accrued to the allottee due to delay in delivery of possession. Thus, the impugned order passed by the Ld. Authority is not sustainable. Consequently, the present appeal is hereby allowed. The impugned order dated 19.12.2019 is hereby set aside.

Hence, amount charged by builder on account of delay in payment of installments which comes of ₹2,69,675/- approximately stands quashed.

 TDI Infrastructure Ltd. vs Sukhbir Singh decided on 25.03.2021. Haryana RERA Panchkula

Authority has passed a detailed order vide which settled all issues and are reproduced here in brief and be read as part of this order also:

a. Stamp Duty / Misc. expenses: Authority asked respondent to withdraw charges of amount ₹11,800/- subject to the condition that all these expenses will be borne by the consumer himself at the time of conveyance deed is executed and registered.

b. Club Membership Charges: On raise a demand of ₹50,000/- by the builder on account of club membership charges which is presently not functional, therefore, the Authority decides that these charges shall be payable by the consumer only when the club becomes functional.

c. Increase in super area: Authority directed that the area covered by staircase as per principles laid down in earlier decisions by HRERA, cannot form part of super area and the same is liable to be deducted from the super area to calculate the actual cost. Considering the cost incurred by builder to construct the staircase, Authority would hold that the builder shall divide the actual cost of the staircase by the total number of flats in the building and then the proportionate cost so arrived shall then be charged from the consumer.

d. Goods and services Tax: The builder is charging GST @ 12% while according to consumer, it should be @ 5%. The Authority directed that, the rate of charging GST by the builder will be based on the date when the conveyance deed is executed and registered in favor of consumer.

e. Interest on account of delay in offer of possession: As per clause 28 of FBA, builder was obliged to give possession to the consumer within 30 months which period had already lapsed in July, 2016. And, since builder offered Fit-out Possession but hedoes not have the occupation certificate (OC) till date, so the offer cannot be considered valid and consumer is entitled to receive interest on account of delay in offering possession from the deemed date of July, 2016 to the date on which a valid possession will be offered to him after obtaining the occupation certificate. Such interest as per decision of Authority in case Madhu Sareen vs BPTP Limited is to be calculated as per Rule 15 of HRERA Rules,2017. 

The HRERA also ordered:

2) Since occupation certificate has not been obtained till date so the Fit-out possession which was offered on 04.04.2019 cannot be considered a legally valid offer.

3) In current situation, when builder himself has failed to deliver a valid possession till date to consumer, he cannot be allowed to charge interest on delay in payment of installments, Hence, amount charged by builder on account of delay in payment of installments which comes of ₹2,69,675/- approximately stands quashed.

Supreme Court - Subsequent buyers are entitled to receive interest only after the date of endorsement in their favour.

 In the Matter of Haryana Urban Development Authority Vs. Diwan Singh Complaint no. Civil Appeal no. 3409 of 2003 // (2010) 14 SCC 770 decided on 23.10.2008 before Supreme Court of India

Fact of the Case.

• Plot No. 2163P in Sector 13, Bhiwani was allotted by the Appellant in the year 1990

• on the request of the original allottee, it was re-allotted to the respondent by the appellant on 21.4.1998

• In the year 1999, respondent approached the District Consumer Disputes Redressal Forum, Bhiwani, alleging that in spite of payment of the full price, the appellant had failed to deliver possession, on account of non-completion of development

• He therefore sought three reliefs. 

• First, a direction to the appellant to pay interest at 24% per annum on the amounts deposited, till the date of delivery of possession (after removing the road laid over a part of the plot). 

• Second was for a direction to the appellant not to charge any extension fee after 1994 or any interest on the extension fee. 

• Third was for payment of compensation of Rs.1,00,000/ for harassment and suffering

• The appellant resisted the claim on several grounds and also alleged that it had offered possession in 1994 and again in May 1998

• The District Forum by its order dated 10.8.1999 accepted the contention of the respondent that there was no effective offer of delivery of possession in May 1998 and awarded interest at 18% per annum on the amounts deposited, with effect from the date commencing on the expiry of two years from the date of deposit, till date of fresh offer of possession with a further direction to the appellant not to charge interest on the extension fee. The prayer for compensation for suffering/mental agony was rejected.  

• The appeal filed by the appellant was dismissed by the State Consumer Disputes Redressal Commission on 21.9.1999 by a nonspeaking order on the ground that there was no merit in the appeal.

• The appellant challenged the order of the State Commission in a Revision filed before the National Consumer Disputes Redressal Commission.

• The National Commission by a non-speaking order dated 27.8.2002 disposed of the Revision Petition in terms of its decision in HUDA v. Darsh Kumar (Revision petition No. 1197 of 1998) wherein it has upheld the award of interest even at 18% per annum.

Order of the Supreme court

• One significant aspect to be noticed is that respondent is not the allottee who was allotted the plot in 1990, but a re-allottee who was re-allotted the plot in April 1998. When he was offered possession of the plot in May 1998, he found that a part of it was used for road purposes of road. Thereafter, the appellant even offered an alternative plot. The respondent however rushed to the District Forum in 1999, hardly within a year of re-allotment.

•  A re-allottee in 1998 cannot obviously be awarded interest from 1992 on the amounts paid by the original allottee in 1990 on the ground that the original allottee was not offered delivery in 1990.

x

That Just because home buyers continued to pay even after the promised possession date had lapsed, they had not "acquiesced" and not consented to the delay in possession

 In the Matter of Saurabh Mehrotra Vs.CCI Projects Pvt Ltd Complaint no.CC006000000078611  decided on 06.08.2020  Before Maharashtra Real Estate Regulatory Authority.

x

• The Rivali Park project, rechristened as Wintergreen, has been delayed for more than three years. The developer CCI Projects Ltd had sought last mile funding for the project from the Rs 20,000 crore stress fund created by Finance Minister Nirmala Sitharaman and the  funds were sanctioned for builder CCI Projects Ltd. 

• The developer had revised the possession date to December 2019, and further extended it to June 30, 2021.

• Home buyer had filed complaints seeking relief after the project was delayed. However, The buyer made remaining payments for the flat even after the possession date in their registered agreements had lapsed.

• Advocate, appearing for the developer, contended that the developer had informed the revised possession dates to the buyers from time to time and they have made payments even after the possession dates had passed. This showed that they had "acquiesced" and had consented to the revised possession dates.

• However, rejecting the argument, The Court observed that the payments were structured as slab-wise payments, and after investing big amounts, the complainants were helpless and continued making payments in the hope of early possession."Therefore, this conduct of the complainants does not amount to acquiescence. 

• The Court Observed that “ when the statute imposes strict duty for completing the project as per timeline, and speaks about the consequences of delay, the allottees' consent for condoning the delay must be unequivocal and it must be in writing. No such document is produced before me,".

• The Plea for granting Delayed Possession charges under Section 18 was granted.