Legal Maxim: Functus Officio

Legal maxim: Functus Officio

"Functus officio" is a Latin term meaning "having performed his or her office."

 In legal contexts, it signifies that an officer or official body no longer has further authority or legal competence because their original duties and functions have been fully accomplished.

For Example: A trial where a judge presides over a civil case. After the trial concludes, the judge renders a judgment, settling the dispute between the parties. Once the judgment is given, the judge becomes "functus officio." This means that the judge's authority to make changes to the decision ends.

Any further modifications or challenges to the judgment must be pursued through the appellate process, where other judges preside in higher courts of appeal.

A GPA (General Power of Attorney) holder can file a criminal case on behalf of the principal

A GPA (General Power of Attorney) holder can file a criminal case on behalf of the principal (the person who executed the GPA) in certain circumstances. Here are some citations:

Important case laws of Supreme Court:

1. "R. Rajagopal vs. C.J. Aravindan" (2003): The SC held that a GPA holder can file a criminal complaint on behalf of the principal
2. M/s. Haryana Telecom Ltd. vs. State of Haryana" (2011): The SC ruled that a GPA holder can file a criminal case, but the principal must be examined as a witness.

Important case laws of High Courts:

1. "Santosh Kumar Singh vs. State of Bihar" (2012) - Patna High Court: The court held that a GPA holder can file a criminal complaint, but must obtain prior permission from the Magistrate.
2. K. Srinivas vs. State of A.P." (2015) - Andhra Pradesh High Court: The court ruled that a GPA holder can file a criminal case, but the principal's statement must be recorded under Section 200 CrPC.

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.

Supreme Court of India - The power to supersede the authority is entrusted to the appropriate Government in terms of Section 82.

Supreme Court of India - The power to supersede the authority is entrusted to the appropriate Government in terms of Section 82.

Facts:-

• On 5 January 2024, one of the members of RERA superannuated.
• On 7 February 2024, the Chairperson resigned without giving notice of three months and the resignation was accepted immediately by the state Government.
• with effect from 10 March 2024, the remaining member of RERA proceeded on leave for a period of three months until 6 June 2024.
• On 9 March 2024, the State Government in the Department of Housing and Urban Development issued notice to the Authority proposing to supersede the Authority.

• On 12 March 2024, the State Government issued an order under Section 82(1) superseding the Authority.

• On 13 March 2024, the Government  appointed Shri M S Jaggi, IAS to exercise the powers and discharge the functions of the Authority under the Act in terms of the provisions of Section 82(1).

PIL in Punjab & Haryana High Court :-

• A Public Interest Litigation KEERTI SANDHU & ORS. V/s  STATE OF PUNJAB & ANR.CWP-(PIL) No. 48/2024  was moved before the High Court of Punjab & Haryana in which the order dated 14 March 2024 was passed by a Division Bench, where it noted that the authority has to exercise sensitive functions including permissions to be given to builders and dealing with complaints against builders and hence it is not in the interest of justice if the supersession is allowed at that point of time. Consequently, the order of the Government dated 12 March 2024 was stayed by the High Court.

Appeal in the Supreme Court of India :- 

• An appeal was preferred by the state in the matter of STATE OF PUNJAB & ANR. V/s KEERTI SANDHU & ORS.7152/2024 where the supreme court of india set aside the impugned order dated 14 March 2024 of the High Court.
• It also held that The power to supersede the authority is entrusted to the appropriate Government in terms of Section 82. 
• It also noted that The order of the High Court staying the notification of the State Government dated 12 March 2024 would not advance the purpose and object of the statute. 
• A stay on the supersession cannot either bring back the member who has superannuated or restore the Chairperson who has tendered his resignation.

MAHA AT - The Total Amount For Making deposit by Appellant promoter towards compliance of the proviso to Section 43 (5) of the Act will Include amounts received by the promoter directly from complainant as well as the amounts received from the financier out of the loan sanctioned under the subvention scheme.

The Total Amount For Making deposit by Appellant promoter towards compliance of the proviso to Section 43 (5) of the Act will Include amounts received by the promoter directly from complainant as well as the amounts received from the financier out of the loan sanctioned under the subvention scheme.

MB6 Residency Private Limited V/S Ketan Kataria & L & T Finance Holdings Ltd. Appeal No. AT006000000174630 of 2023 Before the Maharashtra Real Estate Appellate Tribunal Mumbai Decided in 18th July 2024

Fact of the main Complaint CC006000000054749 :-

• On 9th June 2018, The Original Allottees filed the captioned complaint before MahaRERA  seeking inter alia for refund of the entire money paid to promoter together with interest on the grounds as set out in the complaint.
• On 24tn February 2022, Upon hearing the parties, learned Member, MahaRERA has passed the impugned order whereby it directed appellant promoter inter alia to refund the entire amounts of Rs. 1,90,28,2751/- paid by complainant together with interest over it.
• On date 20th July 2023, Subsequently, the application filed by Appellant/promoter to review the order  was also disposed of by MahaRERA by dismissing the review application.
• Executing Authority issued recovery warrant of Rs.3,48,40,409/- towards the refund of Rs.1,90,28,275/- being the paid Principal amount by complainant to promoter and Rs.1,58,12,134/- being the interest till 30th January 2024.

Fact of the Appeal:-

• Aggrieved appellant/promoter has preferred the instant appeal before this Tribunal seeking inter alia to quash and set aside these two orders, dated 24th February 2022 and 20th July 2023 passed by MahaRERA.
• In view of both the said impugned orders, promoter  pre deposited Only Rs.85,22,583/- in the Tribunal on 24.05.2024 towards the  compliance of the proviso to Section 43(5) of the Act. 
• This Amount included the Amount of Rs.53,23,433/- deposited by the Allottee Plus interest over it and did not include the amount of Rs.1,36,30,530/- which it received from the Banking Partner L & T Finance Holdings Ltd as the Subvention payment.

The Appellate Authority Framed the following Question(s) for consideration:-

Whether the total amounts received by the promoter, i.e directly from complainant as well as the amounts received from the financier out of the loan sanctioned under the subvention scheme be accounted for making deposit by Appellant promoter towards compliance of the proviso to Section 43 (5) of the Act based on the impugned orders passed by the MahaRERA?

Observations made by the Hon’ble Court:-

• Payments for the costs of the subject flat have been made from two sources 
• (a) by the complainant himself directly to appellant and 
• (b) Payments made by the financier to the promoter on behalf of and in the name of the complainant under the said subvention scheme from out of the loan sanctioned to complainant borrower.
• Reliance was made on M/s Newtech Promoters and Developers Pvt. Ltd Vs, State of UP & ors. [civil Appeal Nos.6745-6749 of 2021]
• The provisions of Section 43(5) also stipulate for pre deposit of the entire amounts received from all the sources without making any distinction of the amounts paid to the promoter, whether amounts are received directly or indirectly or from different sources directly or indirectly or through different financial products/ instruments etc.
• The Complainant is the primary borrower to whom, the subvention loan has been sanctioned to the complainant (borrower) for funding the subject flat under the subvention scheme and this loan amount has been disbursed to promoter for and on behalf of as well as in the name of the complainant. Therefore, the complainant has the primary responsibility for repayment of the outstanding loans.
• Tribunal is expected to direct promoter to first deposit the total amount to be paid to the allottee and these pre-deposits are sine qua non before the said appeal be admitted and entertained for further consideration on merits.

Court’s Order:-

Appellant promoter is being directed once again as last chance to pre-deposit the entire amounts received from both the sources (A and B), i.e. total amounts received from the respondent no. 2, financier under the subvention scheme and also the amounts received directly from respondent no. 1 together with interest on the entire amounts.

MAHAREAT -When the Allottees asked the promoters to enter into an agreement for sale but the Promoters did not reply and did not enter into an agreement for sale thereupon Article 54 of Limitation Act, 1963 will not apply and also when the project is ongoing Section 22 of the Limitation Act, 1963 will be applied being continuing breach of contract.

When the Allottees asked the promoters to enter into an agreement for sale but the Promoters did not reply and did not enter into an agreement for sale thereupon Article 54 of Limitation Act, 1963 will not apply and also when the project is ongoing  Section 22 of the Limitation Act, 1963 will be applied being continuing breach of contract

M/s, Reddy Builders & Developers & ors V/s Hari Shankar Kankani & ors.

Appeal No, AT00600000053249/2021 in Complaint No. CC006000000195966 BEFORE THE MAHARASHTRA REAL ESTATE APPELLATE TRIBUNAL, MUMBAI

Fact of the main Complaint CC006000000195966:-

• Somewhere in the year 2005, The Respondents Allottees had booked a 3BHK flat under a pre-launched scheme in the project "Oregon" in Goregaon ,Mumbai undertaken by Appellants for a total consideration of Rs.38,99,740/-
• The Respondents Allottees paid an amount of Rs.6,90,000/- as booking amount which is more than 10% of the total consideration.
• The Appellant Company Reddy Builders issued allotment letter-cum-receipts to Allottees.
• The Allottees were continuously insisting the Promoters to execute the agreement for sale. Despite continuous follow-up of Allottees the Promoters conveniently avoided to execute the agreement for sale.
• The Appellant Company Reddy Builders agreed to handover the possession of the said flat to Allottees by 2012.
• However Till 2009, the Construction was not commenced due to some issue with slum dwellers.
• somewhere in the year 2021 ,being dissatisfied with the conduct of the Promoters, the Allottees filed Complaint No.CC006000000195966 and sought relief under Section 13 of the RERA Act,2016.
• The Appellant Company Reddy Builders appeared in the Complaint and remonstrated the Complaint by filing written submissions contending therein that the Complaint is liable to be dismissed primarily on following grounds viz; 
• (i) there ls no cause of action 
• (ii) the alleged transaction took place prior to RERA coming into force 
• (iii) the Complaint is not maintainable for want of proper pleadings 
• (iv) the Allottees are guilty of delay and latches 
• (v) the Complaint is hopelessly barred by the law of limitation.
• On 19/04/2021 After hearing the parties learned Authority disposed of the Complaint by directing the parties as under:
• a. If the Complainants are willing to seek refund of their money, the Respondent No.1 is directed to refund the entire money paid by the Complainants along with interest as prescribed under RERA and relevant rules made thereunder.
• b. If the Complainants are willing to be in the project the Respondent is directed to allot the flat having equivalent area as booked by the Complainants. An agreement for sale may be executed in accordance with the provisions of RERA and the relevant rules."
• Being aggrieved by the Order of  MahaRERA  the Appellants, who are Promoters, have preferred the captioned Appeal

The Authority Framed the following Question(s) for consideration:-

            Whether the Complaint is barred by the law of limitation?

Observations made by the Hon’ble Court:-

• It is not in dispute that after 2006 there was no correspondence between the parties till 2019.
• By the letters in 2019 & 2020 the Allottees asked the Promoters to enter into an agreement for sale.
• It is not in dispute that the Promoters have not replied the said letters.
• Article 54 of Limitation Act, 1963 speaks about the period of limitation for seeking specific performance of contract.
• There is limitation of three years for seeking relief of specific performance of contract.
• The period of limitation begins to run when the date fixed for performance, or, if no such date is fixed it begins when the plaintiff has noticed that performance is refused.
• In the instant case, there is no date fixed for performance of contract,
• As indicated above, by the letters, the Allottees have asked the promoters to enter into an agreement for sale. Promoters did not reply the said letters nor entered into an agreement for sale, It means the Allottees have noticed that performance of contract is refused by the promoters.
• it is not in dispute that the Promoters have commenced construction of the subject project somewhere in 2015-2016.
• Since it was an ongoing project, the Promoters have registered the project with MahaRERA and declared the date of completion of project as 31.07.2027,It means there is continuous cause of action.
• Section 22 of the Limitation Act, 1963 provides for the computation of limitation in the case of continuing breach of contract or tort. It provides that in case of a continuing breach of contract, a fresh period of limitation begins to run at every moment of time during which the breach continues.
• it relied on  Samruddhi Co-operative Housing Society Limited. Vs. Mumbai Mahalaxmi Construction Private Limited  Civil Appeal No 4000 of 2019 before the Supreme Court of India.

Court’s Order:-

Complaint is not barred by the law of limitation

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 Allowed the refund of Stamp Duty, even when the Agreement for Sale was not cancelled within the five years of the execution giving the rational that an act of Court shall prejudice no man and the law does not compel a man to do what he cannot possibly perform.

Satish Buba Shetty v/s Inspector General of Registration and Collector of Stamps and Others

WRIT PETITION NO.9657 OF 2022

Decided on JANUARY 11, 2024

IN THE HIGH COURT OF JUDICATURE AT BOMBAY 

Fact of the Case:- 

1. On 10/11/2014 the Petitioner Purchased a flat in a building known as “ERA” of the M/s. Vijaykamal Properties Private Limited (the Developer.)
2. The Total Cost of Flat was Rs. 95 lakhs and the Petitioner paid 25% of it to the developer
3. On 19/11/2014 The Agreement to sale was duly registered with the Registrar of Assurances.
4. The stamp duty of Rs. 4,76,000/- was paid to the Exchequer.
5. The Developer had agreed to deliver possession of the flat by 30/06/2017. 

Time line of the Matter :-

1. On the Default of Developer in providing the Possession, the Petitioner filed the case in MahaRERA. 
2. On Date 26/12/2017 MahaRERA directed the the Developer to refund the amount and execute a Deed of Cancellation.
3. On the Non Compliance of the MahaRERA Order the petitioner filed an Execution Application u/s 63 of RERA Act, 2016. 
4. On Date 13/03/2018 MahaRERA imposed the penalty of Rs. 5,000/- per day on the Developer till the compliance of the order.
5. The Developer preferred an appeal before MahaRERA Appellate Tribunal (MREAT).
6. On 21/08/2018 the MREAT stayed the MahaRERA's order but subject to the Submission of 50% of the due amount plus interest, by the developer. 
7. The Developer defaulted on the Order of MREAT.
8. On Date 16/10/2018 MREAT dismissed the Developer's Appeal for want of compliance of order.
9. The petitioner filed for execution before the MREAT.
10. The Developer and the petitioner arrived at a settlement and Developer refunded the full amount by 22/02/2021.
11. On 09/03/2021 the Deed of Cancellation was executed by the petitioner.
12. On 19/03/2021 the Execution Application  was disposed off by the MREAT.
13.  On 31/03/2021 the petitioner applied to Collector of Stamps, Borivali for refund of Rs. 4,76,000/- paid as stamp duty. 
14. On 27/04/2021 the Collector of Stamps, Borivali declined to refund the stamp duty u/s 48(1) of the Stamp Act, 1958 holding that as Agreement for Sale was not cancelled within the five years of the execution.
15. The petitioner preferred an appeal before the Chief Controlling Revenue Authority. 
16. On 09/02/2022, in Appeal No. 111 of 2021 the Chief Controlling Revenue Authority also dismissed the petitioner's appeal u/s 53(1A) Stamp Act, 1958 holding that  the registered instrument was cancelled beyond five years of its execution.  
17. This petition filed this writ under Article 227 of the Constitution of India, on the legality, propriety and correctness of the impugned order.

Submissions by Appellant:-

1. The impossibility of performance of the condition within the period stipulated by the proviso was not properly appreciated by the authorities under the Stamp Act, 1958. 
2. A genuine claim of a bonafide Senior Citizen home buyer, was unjustifiably rejected by the authorities.

Submissions by Respondent:-

1. The petitioner had obtained the entire benefit under the Agreement for Sale.
2. The petitioner had never sought the cancellation of the agreement for sale within the period prescribed under the proviso to section 48(1) of the Stamp Act, 1958.
3. The Stamp Act, 1958 being a fiscal statute is required to be construed strictly.

Observations made by the Hon’ble Court:-

1. The Controversy at hand, is governed by the proviso to sub section (1) of section 48
2. The proviso to sub section (1) of section 48 thus envisages two time limits.
•  One, the registered Agreement for Sale must have been cancelled by another registered instrument within a period of five years of the execution of the Agreement for Sale.
• Two, the application for relief under section 47 be made within a period of six months from the date of registration of the Cancellation Deed.
3. In the case at hand, the authorities under the Act of 1958 have declined to grant the relief on the premise that there was non fulfilment of the first condition of cancellation of the Agreement for Sale within five years of its execution.
4. The submission of the petitioner  that there was, in a sense, an enforced impossibility of fulfillment of said stipulation cannot be said to be unworthy of consideration.
5. there was no indolence or other blameworthy conduct attributable to the petitioner.
6. The question that wrenches to the fore is, in such a situation, can a party who does all that which is in its control, be saddled with the consequence of non-compliance of a statutory prescription ?
7.  In my considered view, the answer has to be in the negative. 
8. The law recognizes impossibility of performance as a ground to relieve a person from forfeiture and penalty.
9. In the case of Shaikh Salim Haji Abdul Khayumsab v/s. Kumar and Others (2006) 1 Supreme Court Cases 46 the Supreme court recognized two maxims,
• “actus curiae neminem gravabit”; an act of Court shall prejudice no man. and 
• “lex non cogit ad impossibilia”; the law does not compel a man to do what he cannot possibly perform.
10. In the facts of the case, the first of aforesaid maxims may have an application in the context of the time which was consumed in prosecuting the remedies before the authorities under RERA. The petitioner could have compelled the Developer to execute the Deed of Cancellation if the transaction was not to materialize, only by invoking the remedies under the law. The time spent in pursuing legitimate remedies, in the absence of any bad faith or want of due diligence, can not be arrayed against the petitioner
11. Secondly, the petitioner could not have lodged a claim for refund of the stamp duty without there being a registered instrument to cancel the registered Agreement to Sale as Cancellation of earlier registered Agreement to Sale by another registered instrument is a prerequisite for the applicability of the proviso to sub section (1) of section 48.
12. Rajeev Nohwar vs. Chief Controlling Revenue, Authority Maharashtra State, Pune and Others 2021 SCC OnLine SC 863. was a case for refund of stamp duty which was purchased but no Agreement to Sale was executed. The Supreme Court found that the provisions of section 47 had no application to the facts of the said case. Yet, the Supreme Court allowed the application for claim for refund observing, inter alia, that a rejection of the application for refund would violate equity, justice and fairness where the applicant is made to suffer the brunt of judicial delay

Court’s Order:-

The petition stands allowed.

The order dated 9th February, 2022 passed by the Chief Controlling Revenue Authority, Maharashtra State, Pune and the order dated 27th April, 2021 passed by the Collector of Stamps, Borivali are quashed and set aside.

The claim for relief under section 47 of the Stamp Act, 1958 stands allowed.

NCLAT - Creditors of a class for amended Section 7(1) threshold of 10% or 100 whichever is Lower must be from a particular project registered with RERA

Pankaj Mehta V/s M/s. Ansal Hi-tech Township Limited 

Company Appeal (AT) (INS) No. 248 of 2023 

(Arising out of the `Impugned Order’ dated 06.01.2023 in CP (IB) No. 596 (PB) / 2021)

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI  

Time line of the Matter :-

1. The ‘Appellant / Financial Creditor / Applicant’, along with106 other ‘Financial Creditors / Applicants’, had preferred petition ,under Section 7 of the I & B Code, 2016 before NCLT PB New Delhi.
2.  Wherein, M/s. Ansal Hi-Tech Township Limited, was described as the ‘Corporate Debtor’ and the Total Amount of Debt, was mentioned as Rs.41,81,90,116/- 
3. On Date 06/01/2023, NCLT,  dismissed the main Company Petition as `Not Maintainable’ terming that the `Allottees’, belong to different Sub Projects.

Fact of the Case:- 

1. A Project by the name of  'Sushant Megapolis near Dadri Town, adjoining Greater Noida, Uttar Pradesh.  by Corporate Debtor M/s Ansal comprises of Plots / Built-up Plots/ Row Houses/ Flats / Floors /  Villas / High-rise Apartments, under various allocated Sites.
2. License for developing the Township, was granted  in Year2006, by the UP Government with the instruction of Entire Construction be completed by year 2016.
3. By 2016 the Project was incomplete and M/s Ansal registered 25 separate projects having separate `RERA Registrations’ in this Township with RERA.
4.  Appellants are 107 different Allottee  who purchased different types of Units such as Plots / Flats/ Apartments /EWS unit , in the Project.
5. The Possession date of all the allottees  was from 36 months to 42 months, from the date of sanction of the `Layout Plan’ of the `Allotted Unit’. 

Submissions by Appellant

1.  All the Applicants had entered into respective BBAs, much before the RERA Act,2016 came into force.
2.  The said `Agreements’, specifically, defines that `Sushant Megapolis’, as one complete `Project’.
3. The `Single Layout Plan of this project reflects Group Housing/ Plots and EWS Units as part of `One Project’, comprising of 2504 Acres of Property.
4. A Single  Application for Environmental Clearance, was filed for the entire project. 
5.  The Project in question, is a `Single Real Estate Project’, for the purposes of Section 7 of the IB Code, 2016.
6. It therefore, falls under the requisite ambit of the provisos of the amended Section 7(1) of the IB Code 2016 pertaining to the minimum threshold requirement of 100 Allottees or 10% of the Total Allottees, whichever is less, belonging to the `same Real Estate project’. 
7. The NCLT, Passed the impugned Judgment without considering the decision of Hon’ble Supreme Court in Manish Kumar v. Union of India & Ors  (2021) 5 SCC OnLine SCC 1, wherein, it is observed that a Real estate project can be a composite one for Plots and Apartments or for Plots & Buildings.
8. Further, the definition of `Allottee’, is split into broadly three Categories Plot, Apartment and Building and the `Purchasers’ of all these are covered under the term `Allottee’ 
9.  The interpretation, laid down by the was incorrect  that 100 or 10% of the `Allottees’, must be from the `same Building’, and `not from the same `Real Estate Project’.

Submissions by Respondent

1. The Township, consists of Multiple Residential  and Commercial Real Estate Project, and all the sub-projects, are independent of each other and are being developed and sold as separate Projects.
2. Each and Every phase, is registered as a stand-alone Real Estate Project under RERA with separate `RERA Registration Numbers’
3. As per Hon’ble Supreme Court of India, that the task of ascertaining who will be Allottees and therefore, what would constitute 10% of total number of Allottees must depend upon the nature of the `Real Estate Project’.
4.  The Petitioners do not satisfy the required threshold limit of 10% or 100 persons’, whichever is lower, in none of the Project / Project categories, 
5. Approximately 50 Petitioners are either Co-Applicants or Third Applicants for a Single Unit just to fulfill the requisite number of 100 Allottees. whereas in the matter of Manish Kumar v. Union of India, wherein, it is held that `one unit equals to one Allottees’, even though, the said Unit is jointly held. 
6. The NCLT  made ‘inquiry’ and considered all the records pertaining to the Project.

Observations made by the Hon’ble Court.

1. The Corporate Debtor, had executed, at least Three different kinds of Agreements, namely  (a) `Plot Allottee Agreement’ (b) `Built-up Unit Allottee Agreement’ and (c) `Apartment Allottee Agreement as the projects were of `different character’ with `different type of developments with independent, RERA Registrations. ’
2. In none of the Projects / Project Categories, the Applicants  fulfil the requirement of Threshold Limit’ of 10% or 100 persons, whichever is less. 
3. the Appellant are from different numerous projects, and they have not established their case, as `Creditors of a class’, concerning any `particular project’, registered with RERA, with a view to fulfil the requirement of  Section 7 (1) of the IBC in regards to 10% or 100 Allottees’
4. In the present case on hand, the foremost aspect to be taken into account is the RERA Registration of the Projects, of the Corporate Debtor, for ensuring the Initial limit for pressing into service of the ingredients of Section 7 of the Code. 
5. The `Impugned Order’ and the views expressed in dismissing the CP (IB) No. 596 (PB) / 2021, is free from any `legal flaws’. 

Court’s Order

Accordingly the instant `Appeal’ sans merits is `Dismissed’ with no costs.