If the tax amount is credited to the State Government in the name of the allottee the predominant role is of the allottee and for that the Promoter cannot be held responsible to refund the VAT payment.

  In the Matter of Ashutosh Suresh Bagh v/s. The Member & Adjudicating Officer & Ors. Complaint no. AT005000000000120 decided on 02.05.2018 before Maharashtra Real Estate Appellate Tribunal

The Appellate Authority Held that 

"While deciding claims between the allottees and meeting with controversies, or the difficulties faced by the Promoter, a harmonious approach is imperative to be adopted. This is moreso the cumulative effect of the Statute coupled with Sections 71(3), 72, 38, Preamble and impetus of Section 18 of

RERA Ad is to be coherently considered. Going by these provisions and reading the order under challenge, it is apparent that refund of VAT could not be from the Promoter as the tax amount is credited to the State Government at the credit ,/ in the name of the allottee. Whatever would be the refund, would be available subject to termination of existing agreement between the parties and on an application to the concerned authorities by the allottees. In both these situations, the predominant role is of the allottee and for that the Promoter cannot be held responsible to refund the VAT payment. 

Statutory payments like stamp duty, VAT, service tax are to be deducted and flat purchaser is not entitled for the same

In the Matter of Bhoomi And Arcade Associates vs Alistair Gomes, Appeal No. AT 005000010880

Mumbai Rera Authority ordered the promoter to refund the entire amount of Rs.3,40,491/- expended by the complainant with regard to the ancillary expenses borne towards registration, stamp duty, processing fees, and finance company charge.

The Mumbai RERA Tribunal overruling the order of the Authority held that in the proposition settled in the case of Ashutosh Suresh Bagh v/s. The Member & Adjudicating Officer & Ors. and conjunctive reading of clauses 6 and 10 of the Agreement entered between the parties, it is clear that statutory payments like stamp duty, VAT, service tax are to be deducted and flat purchaser is not entitled for the same.

MahaRERA directed the Complainant to form the association of allottees and initiate the revocation under section 7 of RERA, The Respondent Builder to provide the Allottee Data to the Complainants.

 In the Matter of Parkaj Vrailal Mehta & others Vs. Shree Adiraj Laxmi Builders Pvt. Ltd Complaint no.CC006000000012158 decided on 11.09.2019  before Maharashtra Real Estate Regulatory Authority

MahaRERA through its order dated 11th September 2019 directed promoter ―Shree Adiraj Laxmi Builders Pvt. Ltd‖ (Maha RERA Reg. No. P51700013358)

to enable the allottees to form an association of allottees (AOA) so the decision for initiating section 7 i.e. revocation of the project may be taken by them.

 Allottees of the project ―Adiraj Crystal‖ situated at Ambernath, Thane filed various complaints stating that the Respondent has failed to execute and register the agreements for sale, complete the Project and hand over possession. During the proceeding of the case it was found/declared that the project registration has lapsed. Further, the construction work of the project could not be completed because of reasons which were beyond the promoter‘s control. 

Authority directed the Respondent to handover the list of allottees of the said project, along with their contact details, to the Complainants within 30 days from the date of this Order, to enable the allottees to take an informed decision Pertaining to the said project and if the association of allottees may like to Proceed for revocation under Section 7/8 of the Act. 

The Respondent may seek the approval of the association of allottees for order under Section7(3)

In the similar Matter of Milind Dhande & others Vs. Housing Development and Infrastructure Ltd. Complaint no.CC006000000055794 decided on 06.08.2019 before Maharashtra Real Estate Regulatory Authority

MahaRERA ordered the Respondent to handover the list of allottees of the project ―Whispering Towers EFG Wings‖ to Association of allottees so that decision regarding revocation of registration under Section 7 of the RERA Act can be taken by them. 

Facts 

1. The Complainants have booked apartments in the project 'Whispering Towers EFG Wings' situated at Kurla, Mumbai via registered agreements for sale. The Complainants have alleged that the date of possession as stipulated by the said agreements has already been lapsed. Therefore, they prayed that since the Respondent has failed to hand over the possession of the apartments within the stipulated period, they be directed to pay interest, on delay or refund the amounts paid as per the provisions of section 18 of the Real Estate (Regulation and Development) Act, 2016. 

2. The Authorized representative for the Respondent explained that the construction work of the project could not be completed because of reasons which were beyond the Respondent's control. Specifically, he submitted that the due to financial constraints and unpaid dues of the Planning Authority and various Banks, which has extended project loans, the project has got stalled. 

3. In Complaint no. CC006000000056289, the Respondent had submitted that he is in advanced talks with another promoter/ financer and commits to revive and restart the project by April, 2019 and complete the project with occupation certificate by December 30, 2020. 

4. Since the Respondent has failed to revive the project by April, 2019 as committed, the association of Allottees may be proceeded with revocation of registration of the project under Section 7 of the RERA Act. 

5. In view of the above facts, the Respondent is directed to handover the list of Allottees of the said project, with contact details, to the Complainants within 30 days from the date of this Order, to enable the Allottees to take a decision pertaining to the said project and whether the association of Allottees may like to proceed with revocation of registration under Section 7 of the Act or not. 

6. The Respondent may seek the approval of the association of allottees for order under Section 7(3) of the said Act, as per MahaRERA Order no 7/ 2019 dated February 8, 2019 on Revocation of Registration of Project for reviving and completing the said project.

An unregistered project shall be considered at par with the project of which the registration has been cancelled otherwise the protection to association of allottees under section 8 will not be available to allottees

 In the Matter of Sabiha and Ors vs Anil Jindal, SRS Real Infrastructure Complaint no.14 of 2019 decided on 30.07.2019 before Haryana Real Estate Regulatory Authority Panchkula

• It was held by the Authority that allottees of the project have formed an association (RWA in brief) and got it registered under the Haryana Registration and Regulation of Societies Act, 2012. 

• RWA has estimated that an amount of about Rs. 6.5 crore has to be incurred to complete the project. The association having fulfilled all the tasks assigned to it by the Authority has a right to take over the project for completing it themselves and respondents were restrained for creating any third party interest in the project. 

• The project was unregistered as promoters failed to register the complaint and violated the mandate of section 3 of the Act and section 7 was applicable which deals with revocation.

•  The Authority in its order held that when a promoter fails to register the  project despite clearly being aware that he should do so, such projects must be treated at par with the projects of which the registration is cancelled by the Authority. 

• Not taking this view will create an anomalous situation and would adversely jeopardize the interest of the allottees of the project of which the promoters are deliberately refusing to finish the project. 

• Not taking such a view would also amount to saying that the protection of Section 8 is not available to the Allottees of an unregistered project. In the considered view or this Authority an unregistered project shall be considered at par with the project of which the registration has been cancelled. Having said so, now the protection of Section 8 must be granted to the allottees of the present project of the respondent.

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If the developer is not building the project as promised in the brochure, the Authority directed the promoter to complete the project as promised in brochure and rectify the mistake and also for compensation they can approach the Adjudicating Authority

 In the Matter of Pawan Beniwal and Kavita Vs Parsvnath Developers Ltd Complaint no.Raj-RERA-C-2017-2007 decided on 20.06.2019  before Rajasthan Real Estate Regulatory Authority

• The Rajasthan Real Estate Authority presided by Shri Nihal Chand Goel and Shri Rakesh Jain held that the Allottee/complainant contended that the developer is not developing these flats as per their brochure in that they have converted the lawn of the flat into a common facility area by making five sewerage manholes in the backyard. 

• The issue has not been resolved despite complaints made to the non-complainant. Even as per para 1(a) of the Agreement, it is clear that a lawn was supposed to be part of these flats at ground floor, but no lawn has been developed. 

• The competent Authority issued the following directions:

• (i) The non-complainant shall cover the manholes and develop the back yard/ rear set back into a proper lawn; 

• (ii) The complainants shall take possession of the their respective floors; and then point out the difficulties and deficiencies in workmanship, quality or provision of services to the promoter to rectify such difficulties and deficiencies, at no cost to the complainants, Within 30 days thereof; 

• (iii) If, before or after giving possession, the non-complainant does not comply with the directions given hereinbefore, the complainants will be at liberty to approach the Adjudicating Officer for relief under section 14(3) of the Act. Besides this, the complainants will also be at liberty to approach the Adjudicating Officer for relief of compensation under section 12 and section 18(1) of the Act.

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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.

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Developers failing to transfer the benefits of GST reduction to homebuyers may end up compensating them with penalty in case the homebuyer withdraws from the project.

 In the Matter of Rajesh Vs. M/s Alliance Villa Pvt. Ltd Complaint no. 189 of 2019 decided on 22.11.2019 before Tamil Nadu Real Estate Regulatory Authority

• The Tamil Nadu Real Estate Regulatory Authority (TNRERA) directed a promoter to refund the booking amount with fine, after the latter refused to reduce the GST rate from 12% to 5%.

• The case relates to a complaint filed by Rajesh over booking a villa developed by Alliance Villa Pvt. Ltd at Thaiyur on Old Mahabalipuram Road (OMR) on the outskirts of the city. 

• The homebuyer entered an agreement with the developer for land and construction of a row villa in a project named ‘Alliance Humming Gardens‘ by paying Rs 4.18 lakh of the total villa price estimated as Rs 55.67 lakh. 

• While the agreement was entered with a GST rate of 12% at the time, the Centre revised the GST rate from 12% to 5%, two months later. 

• The complainant submitted to the realty regulator that the developer insisted he pay GST at old rates against the government notification, committing a breach of trust. Following this, the homebuyer withdrew from the project.

• As the developer did not refund the amount paid for booking the villa, the home buyer filed a complaint with the TNRERA. G Saravanan, adjudicating officer of TNRERA, said that for the ongoing projects, the promoter has an option to pay GST at old rates (12%), avail permissible input tax credit and pass on the benefit of the availed credit to homebuyers.

•  When the homebuyer questioned the developer, the latter stated that the 12% GST was compulsory, the order added. As per Section 19(1) of the RERA Act, the allottee has a right to all information regarding the villa intended to be purchased by him. 

• Taking all this into consideration, the adjudicating officer said the complainant was entitled for refund of the entire amount paid with an interest rate of 10.15%, besides Rs 25,000 and Rs 15,000 as compensation and for legal expenses.

2/3rd majority of allottees, keeping the larger interest of project completion and the interest of all the allottees of the said project, have accorded their consent for transfer of project under Section 15 and extension of project under Section 7(3), the complaint of minority of less than 1/3rd of the allottees for refund under Section 18 is disallowed

 In the Matter of Nitin Soni & Ors. Vs NNP Buildcon LLP Complaint no.CC005000000043692  decided on 07.08.2020 before Maharashtra Real Estate Regulatory Authority 

• The complainants purchased apartments in a project 

• The possession was to be granted by the year 2019 but it was not provided hence the complainants sought for refund along with interest and compensation. 

• The Respondent‘s project has undergone a change of promoter, in March 2019, in accordance with the provisions of Section 15, wherein the erstwhile promoter Riverview Properties Pvt Ltd, has obtained consent of two-third of the allottees in the said project and as per the said consent terms, the project has been taken over by the present promoter i.e. NNP BUILDCON LLP. 

• The delay in the project was due to change in planning authority, the new planning authority provided commencement certificate in August 2019, no progress was done from 2013 till 2019. 

• The respondent submitted that a mutually agreed proposal was shared with the allottees of the project including the complainants during discussions before the Conciliation forum. Accordingly, consent of 2/3rd allottees was received. It was also submitted that since the law provides for 2/3rd consent, providing different relief to remaining 1/3rd allottees would go against the provisions of the Act and also would set a wrong precedent for 2/3rd allottees. 

• Hence, the Complainants prayer of refund under Section 18 of the Act was disallowed by the Authority.

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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.

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• 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.

 

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.

Complainant is stopped from denying/withdrawing his consent given for the re-planning of the building ,the Complainant's claim for withdrawal after accepting the offer is not maintainable.

 In The Matter of Sunil Wadhwani v. Pashmina Realty Private Limited Complaint number CC006000000078745 Decided on 07.01.2020 before Maharashtra Real Estate Regulatory Authority

• The Complainant had booked flat no. C-701 having carpet area of 1,436 square feet consisting of 4 (four) bedrooms in the Respondent's project 'Pashmina Lotus' situated at Chandivali, Powai ("the Original Flat"), at and for a consideration of Rs. 2,76,00,000/-.

• The Respondent agreed to handover possession of the Original Flat by 30th September, 2016. However, the project was not viable, the plans were revised and two bedroom and three-bedroom flats were proposed to be constructed with the consent of 2/3rd (two-third) allottees of the project including the Complainant. 

• A new development manager was brought in and the development was rebranded and re-registered under RERA under a new name.

• The Complainant gave express consent for the change in plan on 27th December, 2017 in the form of consent terms ("Consent Letter") whereby the Complainant has given consent to two flats being flat no. B-1104 admeasuring 770 square feet carpet area and flat no. A-1101 admeasuring 812 square feet carpet area ("New Flats") and gave consent for re-planning the building under Section 14(2) of RERA.

• After the Consent, the Complainant sought refund of his amount with interest under Section 18 of the RERA claiming that the Respondent failed to hand over the possession of the Original Flat on the agreed date.

Issue:

• Whether the Complainant is stopped from denying/withdrawing his consent given for the re-planning of the building?

Observations of Maha-RERA:

• The consent under Section 14(2) of RERA of 2/3rd (two-third) allottees for re-planning has been given to the Respondent and the Respondent has revised the plans. The Respondent is ready to execute the agreements of the flats revised by them i.e. New Flats. Not only that, in terms of the Consent Letter, the Complainant has given his consent to accept the New Flats each consisting of two bedrooms in lieu of the Original Flat consisting of four bedrooms. The Complainant also showed his readiness to pay Rs. 20,00,000/- for additional carpet area which he is going to obtain. These facts, therefore, establish that on the consent of the Complainant, the Respondent has acted to its dis-advantage and hence, the Complainant is estopped under Section 115 of the Evidence Act from withdrawing his consent and his status as an allottee of the New Flats.

• In context of the aforesaid, Maha-RERA observed that provisions of Section 62 of the Contract Act can also be pressed into service, which Section 62 reads as follows:

"62. If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed."

• Maha-RERA also relied upon the observation made by the Hon'ble Supreme Court in the context of Section 62 of the Contract Act in Lata Construction and Others v. Dr. Rameshchandra Ramniklal Shah (2001)1 SCC 586 whereby it was observed:

"Section 62 of the Contract Act contains the principle of "Novation" of contract. One of the essential requirements of "Novation", as contemplated by Section 62, is that there should be complete substitution of a new contract in place of the old. It is in that situation that the original contract need not be performed. Substitution of a new contract in place of the old contract which would have the effect of rescinding or completely altering the terms of the original contract, has to be by agreement between the parties. A substituted contract should rescind or alter or extinguish the previous contract. But if the terms of the two contracts are inconsistent and they cannot stand together, the subsequent contract cannot be in substitution of the earlier contract."

Order of the Maha-RERA:

After considering the facts and circumstances of the case, Maha-RERA found that there is novation of the contract and only a formal contract in writing is to be executed. The consideration of the Original Flat is to be adjusted against the New Flats, otherwise the terms and conditions are similar. In view of the same, the Complainant's claim for withdrawal is not maintainable and the same is dismissed.

Maha-RERA, in order to avoid multiplicity of the proceedings, in the capacity of the regulator, directed the parties to enter and register the agreement for sale of New Flats in consonance with terms and the conditions of the Consent Letter and the Previous Agreement within period of 1 (one) month.

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.

The cause of action for claiming possession after the lapse of agreed date of possession becomes a recurring course of action

 In the Matter of Avinash Saraf, Neha Duggar Saraf v/s Runwal Homes Pvt. Ltd. Complaint number CC006000000000032 decided on 13.10.2017 before Maharashtra Real Estate Regulatory Authority

The complainants contended that they have paid 97% of total consideration of the flat. The date of possession of the flat was August, 2016, as per agreement of sale executed in November 2014, but the respondent failed to give the Possession in time.hence the complainant demanded the amount of consideration with interest @ 21% p.a. from the respondent with compensation for the amount expended towards stamp duty and registration charges.

The respondent contended that MAHARERA has come into effect from 1st May 2017. Therefore MAHARERA has no jurisdiction to entertain this complaint. The date of possession was delayed due to delay in getting permission for constructing parking from MCGM (Municipal Corporation of Greater Mumbai), for reasons beyond control of the respondent.

Point for consideration before The Honorable judge was whether the complainant is entitled to get back the amount paid to respondent with interest and compensation? He answered affirmatively with the following reasons.

The cause of action for claiming possession after the lapse of agreed date of possession becomes a recurring course of action. Therefore MAHARERA has the jurisdiction under section 79 of the Act. The reasons given by the respondent for delay in possession is also not acceptable, since the agreement was executed in November 2014 it means the respondent was aware of the time for giving possession.

The honorable judge has delivered the following judgment.

• To refund the entire amount paid to the respondent till date with interest and compensation for amount paid towards stamp duty and registration charges. Rate of interest upto the date of 30th April 2017 was decided @  9% per annum. And from 1st May 2017 the rate of interest was decided to be the interest at SBI’s highest marginal cost of lending rate + 2% p.a. till the date of final payment to the complainant.

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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.

The Complaint to the Authority can be filed by any of the Co Purchasers, when there is no conflict of interest between the co-purchasers and Even after having an arbitration clause in agreement the authority has power to entertain the plea when no request is made for arbitration by the parties.

 in the Matter of Ganesh Lonkar V/s D.S. Kulkarni Developers Ltd. Complaint number CC005000000000317 Decided on 26/12/2017

There are 2 important legal issues involved in this complaint filed under section 18 of Real Estate(regulation and Development) Act 2016.

• Whether the Arbitration Agreement will oust the jurisdiction of Maha RERA and

• Whether the complaint filed by a co-purchaser is maintainable?, 

The complainant contends that he and his wife Mrs. Sharmila booked a flat no. 4-602 in DSK Mayurban, situated at Pune and the respondents promised to give its possession on or before 30th June 2017. The respondents have failed to deliver the possession of the flat on the agreed date. The complainant wants to continue in the project. According to him, as per the registered agreement for sale, the respondents are supposed to make payment of pre-EMIs of housing loan taken from Tata Capital Housing Finance Ltd. (TCHFL ) till the possession of the flat is handed over. TCHFL has issued notices to the complainant for payment of EMIs after 30th June 2017. Therefore, the complainant prays that the respondents be directed to hand over the possession of their flat at the earliest and to pay EMIs from December 2016 onwards. Complaint also claims interest on the amount paid by him to the respondents. 

The respondents have pleaded not guilty and they have filed their explanation to contend that co-purchaser Mrs. Sharmila Ganesh Loankar has not been added as a party to this complaint. The respondents have further contended that as per clause 49 in the agreement for sale, this dispute is to be referred to the Arbitrator and therefore, this authority has no jurisdiction to adjudicate upon the present dispute.

Maha RERA observed that 

• there is no substance in the objection on non-joinder because there is no conflict of interest between the co-purchasers. 

• Here in this case though there is a clause to refer the dispute to the Arbitrator, neither the complainant nor respondents have submitted any application before this authority to refer their matter to the Arbitrator, hence RERA have jurisdiction to the case.

If the Redevelopment project involves the Sale of flats to outside parties, then the builder becomes promoter under the act and the project is to be registered

 In the Matter of Indira Nagar Kaveri Apartments Owners Welfare Association v/s Navin Housing & Properties Pvt. Ltd. Complaint number 433/2019 ,

The Hon’ble Tamil Nadu  Real Estate Regulatory Authority observed that 

• an Agreement between existing flat owners and Builder intending to do redevelopment of the Society where the sale of flat to outside parties are also involved., “Very much constitute the standard joint development agreement for redevelopment  which is entered into between the existing flat owners and the promoter builder for demolition of the existing flats and construction of new flats in the said property. Therefore the day existing flat owners sign the deed of agreement with the promoter builder, the existing flat owners become an allottee and the respondent builder becomes the promoter under this act.”

• The Hon’ble Tribunal further added that it is the responsibility of the promoter to get the consent from the remaining flat owners to take up the redevelopment project.

• The Hon’ble Tribunal further declined to transfer the matter for arbitration adding that  “after the commencement of the Real Estate (Regulation and Development) act, 2016 the real estate disputes and complaints will have to be adjudicated by the authority constituted under the act.” 

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.”