BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY,

MUMBAI

Complaint No.CC006000000100369

Apurva Ashwin Desai

Mansi Apurva Desai ..Complainants
Versus
Rare Township Private Limited ..Respondent

MahaRERA Project Registration No. P51800001036

Coram: Dr. Vijay Satbir Singh, Hon’ble Member – 1/MahaRERA

Adv. Jennifer Michael a/w Adv. Rushabh Thacker appeared for the
complainants.
Adv. Vikramjeet Garewal appeared for the respondent.

ORDER
(29thOctober, 2020)
(Through Video Conferencing)

1. The complainants have filed this complaint seeking directions from the
MahaRERA to the respondent to pay interest for delayed possession under
section 18 of the Real Estate (Regulation and Development) Act, 2016
(hereinafter referred to as “RERA”) with respect to the purchase of their
flats bearing no. 1807 & 1808 in the respondent’s project known as “Rising
City – North Sea Heights – 15 to 18 floor” bearing MahaRERA registration
No. P51800001036 situated at Ghatkopar (East), Mumbai. The complainants
further prayed for refund of the additional amount paid by them to the
respondent towards the consideration of their flats. The complainant also
prayed for formation of the society under section 11(4)(e) of the RERA and
disclosure of the information on the MahaRERA website.

2. In the present case, the respondent promoter had filed an application dated
18-10-2019 raising preliminary issue of maintainability of this complaint
1
 filed the complainants on the ground that in the said project the allottees
have formed an association of allottees and the said association has filed a
complaint bearing No.00600000023888 before the MahaRERA seeking various
reliefs sought therein including that of interest/ execution of agreements
for sale etc. The said application was rejected vide interim order dated
11-02-2020 and the present complaint was held to be maintainable by the
MahaRERA. Till date the said interim order has not been challenged by the
respondent and hence it attains finality.

3. Thereafter this complaint was heard on 15-10-2020 as per the Standard

Operating Procedure dated 12-06-2020 issued by MahaRERA for hearing of
complaints through Video Conferencing. Both the parties have been issued
prior intimation of this hearing and they were also informed to file their
written submissions, if any. Accordingly both the parties appeared for the
hearing and made their oral as well as written submissions. After hearing
the matter at length, directions were given to both the parties to upload
their respective written notes of arguments on record of MahaRERA within a
period of one week. Pursuant to the directions of MahaRERA , the parties
have uploaded their respective submissions on record of MahaRERA on
21-10-2020 and 22-10-2020.

4. It is the case of the complainants that they have purchased two flats
bearing nos. 1807 and 1808 for total consideration amount of Rs.
1,30,18,800/- and Rs. 1,46,44,050/- respectively in the respondent’s
project. The registered agreements for sale were executed on 31.12.2014.
Till date they have paid an amount of Rs. 75,50,904/- for flat no. 1807 and
an amount of Rs. 84,93,549/- for flat no. 1808. At the time of booking of
the said flats the respondent had permissions from Airport Authority of India
(AAI) to construct building upto 18th floor. Further, as per the said
agreements for sale executed with the complainants the respondent was
liable to handover the possession of the said flats to them on or before
31.12.2018. However, till date the possession has not been given to them.
The respondent vide letter dated 17th January 2018 claimed to have
2
 completed construction upto 11th floor which was not due as per the
payment schedule mentioned in the agreements for sale and hence, the
complainant sought refund of the said amount of Rs. 16,92,444/- and
Rs. 19,03,726/- for both the flats. However, during the hearing the
complainants have stated that since the respondent has reached to that
stage of construction they are not pressing for said prayer for refund of the
excess amount recovered by the respondent. The complainant further
stated that since the respondent has failed and neglected to handover the
possession of their flats by the agreed date of possession mentioned in the
agreements for sale, they are entitled to seek interest for the delayed
possession under section 18 of the RERA.

5. With regard to the reasons cited by the respondent for the delay due to
force majeure i.e. in the order passed by Hon’ble High Court in PIL no. 86 of
2014 the complainant relied upon the judgement and order passed by
MahaRERA in the case of Suresh Swami v/s L&T and stated that delay due to
status quo order cannot be a ground to extend the date of possession as
mentioned in the agreement for sale executed between the promoter and
allottee. The complainant further stated that even the full bench of
Hon’ble High Court in its order dated 6th December 2017 passed in the
matter of M/s. Neelkamal Developers in para 111, has clearly observed that
the time consumed in the litigation or injunction cannot be excluded from
consideration of period of one year under section 6 of the RERA as such
interpretation will frustrate the aim and object of RERA. The complainants
further stated that the respondent relied upon two clauses of the
agreement for sale i.e. clause no. 20.1 and 20.4. The clause no. 20.1 gives
the promoter an option to cancel the agreement for sale if it delayed the
project. However, in the present case the respondent has admittedly not
exhausted the said clause / remedy and not cancelled the agreements for
sale executed with the complainants. Further, the said clause is violative of
section 18 of the RERA. Hence, same cannot be relied upon by the
respondent. With regard to clause no. 20.4 the complainant stated that the
3
 said clause gives right to allottee to terminate the agreement for sale if the
project is delayed. However, the said clause is not mandatory and in the
present case, the complainants opted to continue in the project as provided
under section 18(1) of the RERA. Hence, the respondent – promoter cannot
force the complainants to cancel the agreements for sale. The complainant
further stated that the respondent was aware of the fact that due to the
NOC of AAI it could not complete the project on site, still it raised the
demand for further payment vide letter dated 17th January 2018. Even as on
date, though the respondent obtained NOC from AAI in the year 2019, it has
not obtained commencement certificate for construction beyond 10th floor
of the said building.

6. In addition to these, the complainants further stated that as on date the

respondent has sold more than 50% of the flats in the project and still it has
not formed society as provided under section 11(4) (e ) of the RERA. In view
of aforesaid facts the complainants prayed to allow this complaint and grant
interest for the delayed possession under section 18 of the RERA.

7. The respondent on the other hand contested the claim of the complainants
and stated that section 18 of the RERA would apply if there is a failure on
the part of the promoter to handover the possession as per the terms and
conditions of the sale. However, in the present case there is no default on
the part of the promoter to complete the project. The respondent further
stated that the agreements for sale clearly provides the date of possession
as 31st December 2018 or such extended date due to force majeure reasons
mentioned in clause 37 of the said agreements. The respondent further
stated that the said date of possession mentioned in the agreements for
sale was subject to force majeure and in the event of any reasons beyond
its control, it had one year’s grace period for completion and for handing
over the possession of the said flats to the complainants. The respondent
further stated that it had obtained the IOD for said project on 9th June
2011. Thereafter, the NOC was obtained AAI for 85 meters AGL and 87.50
4
mtrs AMSL. Thereafter, it obtained the commencement certificate for
plinth, basement and top on 10th February 2014 and CC for building no. 1A,
1B, 1C, 2A, 2B and 2C was obtained on 10th April 2015. On 20th January
2016, the CC upto second podium slam for building no. A1 and extended CC
upto 11th floor for the said building was obtained on 1st October 2016. On 9th
December 2016, further CC extended upto 11th floor as per amended plan
for building no. A4, A5 and A6 was obtained. In the meantime, AAI started
issuing NOC with permissible height for all the building within the radius of
20 km around the each airport. The issuance of such NOC was based on the
height prescribed by the DGCA KAR (Civil Aviation Requirement Series B part
1 section 4 dated 31st July 2006 and the AAI standing order dated 84 (e)
dated 14th January 2010. Since the respondents’ project was falling within
the radius of 20 km from both the airport, the respondent had to obtain
NOC for height clearance from AAI which is mandatory for obtaining further
extended CC from the competent authority and accordingly it had obtained
NOC upto 85 mtrs (habitable 23rd floor) from AAI. It has started the
commencement of the construction work on site by obtaining further CC
from the competent authority. In the meantime, one Mr. Yashwant Shenoy
filed PIL no. 86 of 2014 before the High Court of Judicature at Bombay. In
the said PIL the Hon’ble High Court was pleased to pass an order on 1st
September 2016 and directing the competent authority to not to grant any
further permission for the buildings which are within the funnel area and
those structures which fall within four km of the runway and approaches.
Due to the said order, the respondent could not continue with the
construction as the project was affected / falls within 4 km radius. Though
it had approved the height , it could not revalidate the NOC due to said
status quo order, due to which the competent authority could not extend
the commencement certificate beyond 11th floor of the said building. In the
said PIL the respondent made an appropriate application and thereafter the
said status quo order stands vacated vide order dated 5th and 6th April 2018
with the direction to Appellate Committee to conduct fresh Aeronautical
Study as well as methodology of implementation of guidelines of allowable
penetration of OLS dated 26th March 2015 and decide the appeals
5
 accordingly. The Hon’ble High Court while deciding the PIL gave direction to
AAI to consider this report and grant NOC if there is possibility or as the
case may be and to dispose of pending matters pertaining to height
permissions by 15th May 2019. Accordingly, on 20th March 2019 the AAI
committee after due consideration had approved top elevation of 77.68
mtrs for said project and on 27th May 2019 issued revised NOC for heights
clearance upto 77.68 mtrs AMSL for the whole project and subsequently on
14th June 2019 the respondent was granted revised commencement
certificate for further construction. The respondent further stated that in
the meantime new DCPR -2034 came into force under which new scheme
was sanctioned / due to which it had to resubmit all the approvals as per
the new policy. The respondent stated that the project got delayed mainly
due to civil aviation NOC / status quo order granted by Hon’ble High Court
in PIL no. 86 of 2014 and new DCPR 2034. The respondent further stated
that even MahaRERA vide order no. 14 of 2020 by invoking the force
majeure due to Covid - 19 pandemic has granted / extended the time line
of all the statutory compliance under the provisions of RERA keeping
various circulars / notification issued by state as well as central
government. The respondent further stated that the judgement cited by the
complainants has no relevance in the case. With regard to the issue raised
by the complainants for formation of society the respondent has stated that
the formation of society cannot be espoused by the complainants alone as
this case in the form of derivative action which is on the behalf of all the
allottees. The complainants cannot raise this issue before the MahaRERA
since other allottees are not party to this complaint. The respondent
therefore, prayed for dismissal of this complaint.

8. The MahaRERA has examined the arguments advanced by both the parties as
well as the record. In the present case, the complaint is filed seeking
interest for the delayed possession under section 18 of the RERA.
Admittedly, there are registered agreements for sale entered into between
the complainants and the respondent promoter dated 31-12-2014. According
6
 to the said agreements, the respondent promoter was liable to handover
possession of the said flats to the complainants on or before 31-12-2018
and admittedly possession of the flats has not been given to the
complainants. The respondent promoter has contended that the said delay
occurred mainly due to status quo order passed by the Hon’ble High Court
at Bombay dated -1st September, 2016 in PIL No.86 of 2014 filed by one Mr.
Yashwant Shenoy since the respondent’s project falls within the limit of 4
klm from the runway and under the new DCPR-2034 introduced in the year
2018. The respondent stated that though it had permission, it could not
start construction on site since the competent authority stopped issuing
requisite permissions for construction. However, the said status quo order
got vacated vide order dated 5 and 6th April, 2018. Hence without its fault
the project got delayed and the said delay was beyond its control and the
same is covered under the force majeure ground mentioned in clause No. 37
of the agreements entered into between the parties.

9. With regard to the above issues as contended by the respondent in response

to the complaint, the MahaRERA feels that the reasons cited by the
respondent do not give credible explanation. As a promoter, having sound
knowledge in the real estate sector, the respondent was fully aware of the
market risks when it launched the project and signed the agreement with
the home buyers. Moreover, if the concerned competent authority was
delaying the further permissions, in that event it could have completed the
construction for which it had valid permissions or taken appropriate action
as per the agreement for sale. The issue of height NOC arose since the
respondent wanted to construct additional floors up to 23rd floors. However,
the complainants being allottees have nothing to do with the same. Even
the other issues raised by the respondent such as new DCPR -2034 come into
force in the year 2018 and till that time there was no progress in the
project. The issues of Covid-19 Pandemic occurred after the agreed date of
possession mentioned in the agreement for sale being lapsed on 31-12-2018.
Hence the said justification cannot be accepted by the MahaRERA.

7
10.Moreover, if the project was getting delayed due to the aforesaid reasons
cited by the respondent, then the respondent should have informed the
same to the complainants and should have revised the date of possession in
the agreements at that relevant time or should have offered refund of the
amount to the complainants, if the said delay was not acceptable to them.
From the record, it prima facie appears that no such steps have been taken
by the respondent. Hence now it cannot take advantage of the said reasons
of delay.

11.It is clear from the above discussion that the reasons cited by the
respondent don’t justify the delay.. Moreover, the payment of interest on
the money invested by the home buyers is not a penalty, but a type of
compensation for the delay as has been clarified by the Hon’ble High Court
of Judicature at Bombay in its judgment dated 6th December, 2017 passed in
W.P. No. 2737 of 2017. The respondent is therefore liable to pay interest
for the period of delay in accordance with the terms and conditions of
agreement.

12.In the present case, the MahaRERA is of the view that the respondent has
relied upon clause No. 37 of the said agreement for sale registered with the
complainants on 31-12-2014, wherein it is entitled for reasonable extension
in the date of possession due to the force majeure reasons which are
beyond it control. In this regard, the MahaRERA is of the view that the said
agreements were executed between the parties when the provisions of
MOFA were in force. As per the MOFA, the promoter was allowed an
extension of 6 months maximum for force majeure reasons. Likewise in this
case even if the justifications cited by the respondent is accepted by the
MahaRERA, it is entitled to seek only 6 months extension as per the
provisions of MOFA in the date of possession mentioned in the agreement
for sale from 31-12-2018 till 30-06-2019.

13.With regard to the formation of society as demanded by the complainants,

the MahaRERA is of the view that as per the provision of section 11(4) (e)
8
 of the RERA, it is statutory duty of the respondent promoter to enable the
formation of society if more than 50% flats in the project have been sold
and the respondent cannot back out from the said liability.

14.In view of above facts and discussion, the respondent is directed to pay
st
interest to the complainants from 1 July, 2019 for every month till the
actual date of possession on the actual amount paid by the complainant at
the Marginal Cost Lending Rate (MCLR) of SBI plus 2% as prescribed under
the provisions of section 18 of The Real Estate (Regulation and
Development) Act, 2016 and the Rules made there under.

15.With the above directions, the complaint stands disposed of.

(Dr.Vijay Satbir Singh)

Member – 1/MahaRERA

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 Complaint Cum Review Application No. CC006000000196368
In
Complaint No. CC006000000100369

BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY

AUTHORITY MUMBAI
Review Application Cum Complaint No. CC006000000196368
In
Original Complaint No. CC006000000100369

Rare Townships Private Limited ....Applicant/Complainant

(Original Respondent)
Versus
1. Apurva Ashwin Desai
2. Mansi Apurva Desai .... Respondent
(Original Complainants)

MahaRERA Project Registration No. P51800001036

Coram: Shri. Mahesh Pathak, Hon’ble Member – I/MahaRERA

Ld. Adv. Rubin Vakil appeared for the Applicant-promoter.
Ld. Adv. Jennifer Michael appeared for the respondent-allottees.

ORDER
(Wednesday, 14th June, 2023)
(Through Video Conferencing)

1. The applicant promoter (hereinafter referred to as “promoter”) above

named has filed this review application in the form of fresh complaint
before the MahaRERA on 16/03/2021 mainly seeking directions from
MahaRERA for review of the order dated 29-10-2020 passed by the

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 Complaint Cum Review Application No. CC006000000196368
In
Complaint No. CC006000000100369

MahaRERA in Complaint No. CC006000000100369 filed by the

respondent allottees (hereinafter referred to as the ‘allottees’) under the
provisions of Regulation 36 of the MahaRERA (General) Regulation,
2017 and section 39 of the Real Estate (Regulation & Development) Act,
2016 (hereinafter referred to as ‘RERA’) and Regulation 36 of the
MahaRERA (General) Regulation, 2017 in its the registered project
known as “Rising City - North Sea Heights - 15 to 18 Floor” bearing
MahaRERA registration No. P51800001036 located at Ghatkopar, Taluka
Kurla, Dist. Mumbai Suburban.

2. This review application was heard on several occasions and the same
was heard finally on 25-01-2023 as per the Standard Operating Procedure
dated 12-06-2020 issued by MahaRERA for hearing of complaint through
Video Conferencing. Both the parties have been issued prior intimation
of this hearing and they were also informed to file their written
arguments and written submissions. Accordingly, both the parties
appeared and made their respective submissions.

3. After hearing the arguments of both the parties, the following Roznama
was recorded -
“Both the parties are present. This review application is filed against
an order of the MahaRERA in the complaint No.CC006000000100369
dated 29-10-2020 and further order dated 05-07-2022 came to be issued
by the MahaRERA vide which several complaints related to the project
of the applicant- promoter (original respondent) were to be heard
together. The applicant-promoter has pointed out the reasons for the

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 Complaint Cum Review Application No. CC006000000196368
In
Complaint No. CC006000000100369

delay i.e. the civil aviation NOC which led to a delay from September
2016 till about June 2019 as the Hon’ble High Court at Bombay had
issued a stay order regarding the funnel aspect of the Mumbai Airport.
Therefore, as per the clause 37 of the agreement for sale, the applicant-
promoter contends that the said period needs to be in addition to the 6
month’s of grace period as per the agreement for sale and such period
should accepted / considered as part of force majeure and the applicant-
promoter is not liable for the delay caused in the completion of the
project. The applicant-promoter also pointed out to the further
happenings in the year 2018 (change in DCPR) as well as 2020-21 (covid-
19 pandemic) because of which, the project completion was impacted.
Therefore, the applicant- promoter avers that the MahaRERA has made
an error apparent on the face of the record by not considering the
exclusion of such period in its order dated 29-10-2020 while deciding that
the promoter was responsible for the delay and hence liable to pay
interest. The applicant- promoter also pointed to the case law in this
regard vide which the force majeure should consider these aspects. The
respondent- allottees (original complainants) have pointed out to the
fact that an appeal has already been filed by the applicant-promoter in
March 2021. Therefore, as per Regulation 36 of the MahaRERA (General)
Regulation, 2017, this review application is not maintainable as appeal
had already been filed. Although the appeal was finally withdrawn by
the applicant-promoter, the said withdrawal order was issued by the
Hon’ble Appellate Tribunal only in May 2021. Further the respondent
allottees have also pointed out that the applicant-promoter is
attempting to get the fresh arguments heard in the matter as this cannot
be done in the review application. The MahaRERA has already
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In
Complaint No. CC006000000100369

considered and it is a view of the MahaRERA that the period mentioned

as delay because of civil aviation NOC etc., are the responsibility of the
applicant promoter (original respondent) in the earlier complaint and
this view of the MahaRERA cannot be re-argued in the review
application. The para 8 and 9 of the said order needs to be considered
together as the applicant -promoter is quoting the view of the
MahaRERA out of context. Also, the respondent allottees have pointed
out that said reasons for the delay were not communicated by the
applicant-promoter (original respondent) even though it is claiming that
it had been informed about the same, there is no material on record to
show this fact. In view of the above, both the parties may file further
written arguments and submissions in the matter within a period of next
2 weeks i.e. by 08-02-2023. The matter is reserved for orders suitably after
08-02-2023.”

4. However, despite specific directions issued in the previous hearing, the

allottees have not filed their written submissions. The MahaRERA has
perused the available record.

5. The promoter has filed this review application in the form of fresh
complaint seeking review of the order dated 29-10-2020 passed by the
MahaRERA in the Complaint no. CC0060000000100369 filed by the
allottees herein (complainants therein) on the grounds and for the reliefs
mentioned herein. It has stated that the MahaRERA has failed to take into
consideration that the present complaint was not maintainable and was
required to be dismissed. The flat purchasers in its project formed an

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In
Complaint No. CC006000000100369

association in 2017 i.e. Rising City Ghatkopar Association which is a

registered Association and the allottees are admittedly members of the
said association wherein the reliefs sought by the allottees in the said
complaint (CC0060000000100369) are the same. The promoter has set out
facts of the case stating that the allottees have filed the said complaint
seeking directions against it to pay interest for delayed possession under
section 18 of the RERA in respect of their said flats.

6. The promoter had filed an application dated 18-10-2019 raising the

preliminary issue of maintainability of the said complaint filed by the
allottees on the ground that in the said project the allottees have formed
an association of allottees and the said association has filed a complaint
bearing no. 006000000023888 before the MahaRERA seeking various
reliefs sought therein. In the said complaint, the objectives of the
association were enumerated. When the list of members of the said
association was served upon it, it was noted that the allottees are
members of the said association. Subsequently, the allottees have filed
the said complaint bearing No. CC0060000000100369. Further, on a bare
perusal of the reliefs claimed in both the complaints, it is evident that
both the complaints have sought identical reliefs i.e. a) interest on
amounts paid by the allottees; b) formation of cooperative housing
society, c) to restrain promoter from cancelling or threatening to cancel
the bookings of the allottees and d) disclosure of permissions. Further in
the complaint no. 006000000023888 filed by the association, more than
2/3 rd allottees desired to stay in the project. Therefore, the then Hon’ble
Chairperson /MahaRERA passed an order on 10-10- 2018 directing the

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In
Complaint No. CC006000000100369

parties to execute and register the agreement for sale as per section 13 of
the RERA. Further, the association filed an appeal bearing Appeal no.
AT006000000010525 before the Hon’ble Appellate Tribunal challenging
the said order dated 10th July, 2018. The Hon’ble Appellate Tribunal vide
order dated 23-04-2019 remanded the matter back to the Hon’ble
Chairperson/MahaRERA for consideration and deciding afresh all the
issues in their entirely as per law. Thereafter, the then Hon’ble
Chairperson/MahaRERA heard the complaint no. 006000000023888 on
7-05-2019 extensively and the same had been reserved for orders. The
allottees are members of the association till date and have not taken steps
to seek leave from the MahaRERA to file a separate complaint to agitate
the same cause of action. Further, the allottees were bound by the
outcome of the complaint filed by the association and the appeal filed in
the Appellate Tribunal. They had filed the present complaint by adopting
the back door entry approach to re-agitate the same issues which are
already agitated before the Hon’ble Chairperson/MahaRERA by the
said association. Hence, in accordance with the principle of subjudice, it
is impermissible for the allottees to indulge in forum shopping and re-
agitate the same issue before the MahaRERA when the complaint of the
association which is filed prior in time which also seeks identical reliefs
was pending. Subsequently, the members of the association have
approached the Hon’ble Appellate Tribunal once again to challenge the
order dated 25-10-2019 passed by the Hon’ble Chairperson/MahaRERA
and the same is pending litigation. The said application was wrongly
rejected by the MahaRERA vide Interim Order dated 11-02-2020 without
having anything material on record to substantiate that the allottees have

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In
Complaint No. CC006000000100369

withdrawn from the association. The MahaRERA wrongly held that this
complaint had nothing to do with the issue of the association which are
common in nature for all the allottees and dismissed the application by
not considering that the allottees had already invoked his contractual
remedy and had approached the Court through an association of
allottees. At the time of booking of the said flats, it had permission from
the Airport Authority of India to construct buildings upto the 18 th floor.
As per the agreements for sale, it was liable to handover the possession
of the said flats to the allottees on or before 31st December, 2018,
however, its hands were tied as there was a status quo order passed by
the Hon’ble High Court of Bombay in PIL No. 86 of 2014. Hence, the
MahaRERA passed the impugned order dated 29-10-2020 without giving
due consideration to the aforementioned facts and being aggrieved by
the said order, it has stated that it is filing the present review application
before the MahaRERA on the ground that the said order is erroneous on
the face of it, contrary to the well-established principles of law and have
occasioned grave miscarriage of justice. Hence, it has prayed to allow this
review application.

7. The allottees who are the original complainants are purchasers of the said
flats of the promoter ( the original respondent) in the present review
application. They have stated that the promoter had filed an application
dated 18-10-2019 challenging the maintainability of the complaint filed
by them on the grounds more set out in the said application. The said
application was rejected by the MahaRERA vide an order dated 10-02-
2020 which was not challenged by the promoter and therefore the

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In
Complaint No. CC006000000100369

MahaRERA proceeded to hear the matter on merits and passed a final

order dated 29-10-2020 and granted reliefs to them under section 18 of
the RERA. The promoter has filed this review application seeking review
of the said order dated 29-10-2020. The promoter had first filed an Appeal
no. AT006000000052999 challenging the impugned order dated 29-10-
2020 before the Hon’ble Appellate Tribunal on 3-3-2021 but
unconditionally withdrew the said appeal without seeking any liberty
from the Hon’ble Appellate Tribunal as recorded in the order dated 25-
5-2021 passed by the Hon’ble Appellate Tribunal. Thereafter, this review
application was filed before the MahaRERA by the promoter which
cannot be equated with an appeal as the two are very different. Further,
there is no ground for preferring a review under Regulation 36 of the
MahaRERA (General) Regulation ,2017. The promoter has not put forth
any new or important evidence which it has allegedly now discovered
after passing of the impugned order dated 29-10-2020 which was not
within its knowledge or could not be produced by them earlier.
Moreover, the statements in the review application are identical to what
was pleaded and argued in the maintainability application. They have
relied on certain judgements in support of its case and have also clarified
how the judgements referred to by the promoter do not hold good in
proving their case. Hence, they prayed that the present review
application is not maintainable and is liable to be dismissed.

8. The promoter filed its rejoinder to the aforesaid reply filed by the
allottees and stated that the contentions made by the allottees are
misconceived and baseless. It has once again brought to the notice of the

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In
Complaint No. CC006000000100369

MahaRERA that appeal was filed on 04-03-2021 and thereafter on 06-03-

2021 it had filed an application for withdrawal of the said appeal. The
said withdrawal was permitted by the Hon’ble Appellate Tribunal, vide
its order dated 25-05-2021. It has also stated that the said appeal stood
withdrawn with effect as on 06-03-2021. Hence, it has stated that the
present Review Application is maintainable. The promoter cited a case
law “Kunhayammed v/s. State of Kerala” (2000) 6 SCC 359; wherein it is
held by the Hon’ble Supreme Court that without compliance with the
mandatory requirement of deposit, no appeal can be said to have been
preferred. On the same ground the promoter submitted that the appeal
filed by the promoter had been withdrawn. Further, the promoter
specifically stresses on clause no. 2(xxv), 37, 20.5.1, of the agreement for
sale dated 31-12-2014 that the delay was beyond its control, wherein the
delay was caused due to Civil Aviation NOC, pending PIL in the
Hon’ble Bombay High Court, implementation of the DCPR 2034, Covid-
19 pandemic and due to non- payment of timely instalments by the
allottees. It has further stated that the agreement for sale specifically
mentions arbitration clause in clause no. 58 and the agreement was
executed prior to the commencement of the RERA. It has also stated that
the MahaRERA has failed to consider the terms of the agreement for sale
and hence there is an error apparent in the impugned order. However,
the MahaRERA while passing the said impugned order has only taken
narrow interpretation of force majeure, and failed to take into
consideration the contractual terms. It has further stated that the status
of the project was duly and timely being informed to the allottees vide
various e-mails and the allottees are also the member of the association.

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Thus, the bona-fide conduct of the promoter can be seen and it cannot
be contended by the allottees that it has kept them in dark and they were
never informed about the progress of the project. Hence, the promoter
prayed to allow this review application.

9. The MahaRERA has examined the submissions made by both the parties
and also perused the available record. In the present case, this review
application is filed by the promoter, mainly seeking review of the order
dated 29-10-2020 passed by the Ld. Erstwhile Member-1/MahaRERA in the
aforesaid complaint filed by the allottees seeking relief for possession of
their flats along with interest under section 18 of the RERA. The said
complaint was heard and disposed of vide an order dated 29-10-2020
passed by the Ld. Erstwhile Member-1 /MahaRERA. In the said order the
following observations and directions were issued by the MahaRERA:-

“8. The MahaRERA has examined the arguments advanced by both the
parties as well as the record. In the present case, the complaint is filed
seeking interest for the delayed possession under section 18 of the RERA.
Admittedly, there are registered agreements for sale entered into between
the complainants and the respondent promoter dated 31-12-2014.
According to the said agreements, the respondent promoter was liable to
handover possession of the said flats to the complainants on or before 31-
12-2018 and admittedly possession of the flats has not been given to the
complainants. The respondent promoter has contended that the said delay
occurred mainly due to status quo order passed by the Hon’ble High Court
at Bombay dated -1st September, 2016 in PIL No.86 of 2014 filed by one Mr.

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Yashwant Shenoy since the respondent’s project falls within the limit of 4
klm from the runway and under the new DCPR-2034 introduced in the year
2018. The respondent stated that though it had permission, it could not
start construction on site since the competent authority stopped issuing
requisite permissions for construction. However, the said status quo order
got vacated vide order dated 5 and 6th April, 2018. Hence without its fault
the project got delayed and the said delay was beyond its control and the
same is covered under the force majeure ground mentioned in clause No. 37
of the agreements entered into between the parties.
9.With regard to the above issues as contended by the respondent in
response to the complaint, the MahaRERA feels that the reasons cited by
the respondent do not give credible explanation. As a promoter, having
sound knowledge in the real estate sector, the respondent was fully aware
of the market risks when it launched the project and signed the agreement
with the home buyers. Moreover, if the concerned competent authority
was delaying the further permissions, in that event it could have
completed the construction for which it had valid permissions or taken
appropriate action as per the agreement for sale. The issue of height NOC
arose since the respondent wanted to construct additional floors up to
23rd floors. However, the complainants being allottees have nothing to do
with the same. Even the other issues raised by the respondent such as new
DCPR -2034 come into force in the year 2018 and till that time there was
no progress in the project. The issues of Covid-19 Pandemic occurred after
the agreed date of possession mentioned in the agreement for sale being
lapsed on 31-12-2018. Hence the said justification cannot be accepted by
the MahaRERA.
10. .Moreover, if the project was getting delayed due to the aforesaid
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reasons cited by the respondent, then the respondent should have informed
the same to the complainants and should have revised the date of
possession in the agreements at that relevant time or should have offered
refund of the amount to the complainants, if the said delay was not
acceptable to them. From the record, it prima facie appears that no such
steps have been taken by the respondent. Hence now it cannot take
advantage of the said reasons of delay.
11. It is clear from the above discussion that the reasons cited by the
respondent don’t justify the delay. Moreover, the payment of interest on
the money invested by the home buyers is not a penalty, but a type of
compensation for the delay as has been clarified by the Hon’ble High Court
of Judicature at Bombay in its judgment dated 6th December, 2017 passed
in W.P. No. 2737 of 2017. The respondent is therefore liable to pay interest
for the period of delay in accordance with the terms and conditions of
agreement.
12. In the present case, the MahaRERA is of the view that the respondent
has relied upon clause No. 37 of the said agreement for sale registered with
the complainants on 31-12-2014, wherein it is entitled for reasonable
extension in the date of possession due to the force majeure reasons which
are beyond it control. In this regard, the MahaRERA is of the view that
the said agreements were executed between the parties when the
provisions of MOFA were in force. As per the MOFA, the promoter was
allowed an extension of 6 months maximum for force majeure reasons.
Likewise in this case even if the justifications cited by the respondent is
accepted by the MahaRERA, it is entitled to seek only 6 months extension
as per the provisions of MOFA in the date of possession mentioned in the
agreement for sale from 31-12-2018 till 30-06-2019.
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13. With regard to the formation of society as demanded by the

complainants, the MahaRERA is of the view that as per the provision of
section 11(4) (e) of the RERA, it is statutory duty of the respondent
promoter to enable the formation of society if more than 50% flats in the
project have been sold and the respondent cannot back out from the said
liability In view of above facts and discussion, the respondent is directed
to pay interest to the complainants from 1st July, 2019 for every month till
the actual date of possession on the actual amount paid by the
complainant at the Marginal Cost Lending Rate (MCLR) of SBI plus 2%
as prescribed under the provisions of section 18 of The Real Estate
(Regulation and Development) Act, 2016 and the Rules made there under.
14. With the above directions, the complaint stands disposed of”.

10. Being aggrieved by the aforesaid impugned order dated 29-10-2020 passed
by the MahaRERA, the promoter has filed this review application mainly
seeking following reliefs from the MahaRERA:-
“ (a) That the Hon’ble Authority be pleased to allow this review
application seeking review of the impugned order dated 29th October 2020
passed by the Hon’ble Authority in the Complaint No.
CC0060000000100369 of 2019; and (b) That the Hon’ble Authority be
pleased to exercise his powers of review under regulation 36 of
Maharashtra Real Estate Regulatory Authority (General) Regulations,
2017 and after examining the legality and proprietary thereof, be pleased
to quash and set aside the order dated 29th October 2020. (c) Pending the
hearing and final disposal of this application the Hon’ble Authority be
pleased to stay the operation implementation and effect of the impugned

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order dated 29th October 2020. (d) Pending the hearing and final disposal
of this application the Hon’ble Authority be pleased to pass an order
directing and restraining the respondents/org. complainants, its
agents/persons claiming under them from taking any steps in any manner
in furtherance of the impugned order; (e) For costs; (f) For such orders which
the Hon’ble Authority deems fit.”

11. Before dealing with this review application, the MahaRERA felt it
necessary to peruse the provisions of Regulation 36 of the Maharashtra Real
Estate Regulatory Authority (General) Regulations 2017, whereby an order
of the Authority can be reviewed. The said regulations read as under:

“36(a) Any person aggrieved by a direction, decision or order of the

Authority, from which (i) no appeal has been preferred or (ii) from
which no appeal is allowed, may, upon the discovery of new and
important matter or evidence which, after the exercise of due
diligence, was not within his knowledge or could not be produced by
him at the time when the direction, decision or order was passed or
on account of some mistake or error apparent from the face of the
record, or for any other sufficient reasons, may apply for a review of
such order, within forty-five (45) days of the date of the direction,
decision or order, as the case may be, to the Authority.
(b) ……..(e) When the Authority is of the opinion that the review
application should be granted, it shall grant the same provided that
no such application will be granted without previous notice to the
opposite side or party to enable him to appear and to be heard in
support of the decision or order, the review of which is applied for.”
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12. Further, in this regard, the MahaRERA also felt it necessary to peruse the
relevant provisions of section 39 of the RERA, which reads as under:-
“39. The Authority may, at any time within a period of two years
from the date of the order made under this Act, with a view to
rectifying any mistake apparent from the record, amend any order
passed by it, and shall make such amendment, if the mistake is
brought to its notice by the parties: Provided that no such
amendment shall be made in respect of any order against which an
appeal has been preferred under this Act: Provided further that the
Authority shall not, while rectifying any mistake apparent from
record, amend substantive part of its order passed under the
provisions of this Act.”

13. In view of the aforesaid explicit provision prescribed under Regulation 36,
it is clear that an order passed by MahaRERA can be reviewed if there are
new facts discovered or any important matter or evidence which was not
within the knowledge of the parties or could not be produced by them at
the time when the order was passed or if there are other sufficient reasons.
Further, the provision of section 39 of the RERA empowers the MahaRERA
to rectify the mistake apparent on face of the order.

14. Admittedly, this review application is filed beyond the stipulated time
period mentioned in Regulation 36 of the MahaRERA (General)
Regulation, 2017. Further, the appeal filed by the promoter has been
withdrawn by the promoter vide an order dated 25-05-2021 passed by the

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Hon’ble Appellate Tribunal. However, the provision of section 39 of the

RERA, provides that within a period of two years from the date of the
order, the MahaRERA can rectify any mistake apparent from the record,
amend any order passed by it, and shall make such amendment, if the
mistake is brought to its notice by the parties concerned. However, such
amendment can be done if no appeal against the said order is preferred. It
also provides that while rectifying the said order the MahaRERA cannot
amend substantial part of the said order. In this case admittedly, there is
no appeal filed against the said order dated 29-10-2020.

15. In the present case, the promoter has mainly contended that at the time of
hearing of the said complaint filed by the allottees, it has pointed out the
reasons for the delay i.e. the civil aviation NOC which caused the delay
from September 2016 till about June 2019, due to the reason that the
Hon’ble High Court at Bombay had issued a stay order in PIL No 86 of 2014
filed by one Mr. Yashwant Shenoy regarding the funnel area of the
Mumbai Airport. It has stated that therefore, as per clause 37 of the
agreement for sale, the said period needs to be in addition to the 6 months
of grace period as per the agreement for sale and such period should be
accepted / considered as part of force majeure reasons beyond its control
and it is not liable for the said delay caused in the completion of the project.
It has also contended that the further incidence happened in the year 2018
(change in DCPR) as well as 2020-21 (covid-19 pandemic) because of which,
the project completion was impacted too. However, the same are not
considered by the MahaRERA while passing the said impugned order
dated 29-10-2020. Hence, the MahaRERA has made an error apparent on

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the face of the record by not considering the exclusion of such period in the
said order and has held that the promoter was responsible for the delay
and hence liable to pay interest. In support of its contentions the promoter
also pointed to the case law in this regard vide which the force majeure
aspect should be considered.

16. However, the allottees have refuted the contentions raised by the
promoter and contended that an appeal has already been filed by the
promoter in March 2021. Therefore, as per Regulation 36 of the
MahaRERA (General) Regulation, 2017, this review application is not
maintainable as an appeal had already been filed. Further, although the
appeal was finally withdrawn by the promoter, the said withdrawal
order was issued by the Hon’ble Appellate Tribunal only on 25-05-2021.
Hence, this review on the date of its filing was not maintainable. Further,
the promoter is attempting to get fresh arguments heard in the matter as
this cannot be done in a review application. They further stated that the
MahaRERA has already considered and it is the view of the MahaRERA
that the period mentioned as delay because of civil aviation NOC etc.,
are the responsibility of the promoter and this view of the MahaRERA
cannot be re-argued in the review application. Further, the said reasons
for the delay were not communicated by them by the promoter and it is
wrongly claiming that it had informed about the same to the allottees
without citing any material proofs on record of MahaRERA. Hence, the
allottees prayed for dismissal of this review application.

17. From this rival submission made by both the parties and after going

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through the impugned order dated 29-10-2020 passed by the Ld.

Erstwhile Member-1/ MahaRERA, the MahaRERA has prima facie
noticed that the promoter is seeking review of the said order passed by
the MahaRERA merely on two grounds viz i. the very fact that the
allottees are members of the Rising City Ghatkopar Association, who had
filed a complaint seeking similar sort of reliefs under the provisions of
RERA. Hence, the said complaint filed by the allottees was not
maintainable. This issue was not considered by the MahaRERA while
passing the said impugned order and ii) various force majeure events
such as civil aviation NOC due to status quo order passed in PIL filed
before the Hon’ble High Court at Bombay, although covered in clause
No. 37 of the agreement for sale however the six months extension has
not been granted by the MahaRERA while passing the said impugned
order.

18. As far as the ground of review at (i) above cited by the promoter , does
not survive now as the Hon’ble Appellate Tribunal has already passed
an order on 5-04-2022 in Appeal No. AT006000000042069 filed by the
said Association and held that the individual complaints filed by the
allottees of this project can go ahead.

19. As far as the issue at (ii) raised by the promoter, the MahaRERA has
prima facie noticed that the said order dated 29-10-2020 is passed on
merits after considering the submission made by both the parties at
length. Further, on the grounds of force majeure reasons cited by the
promoter has also been considered in para nos. 9 and 12 and thereby 6

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months extension in date of possession from 31-12-2018 till 30-06-2019

has already been granted by the MahaRERA. Further as pointed out by
the promoter about clause No. 37 of the agreement for sale, it does not
provide for additional 6 months extension as contended by the promoter.
Hence, the MahaRERA does not find any merits in the said ground of
review at para (ii) cited by the promoter. Hence, the MahaRERA does
not find any merits in the said ground of review at para (ii) cited by the
promoter. Hence, the MahaRERA cannot revisit the finding given by the
Erstwhile Ld. Member -1/MahaRERA. Hence, the promoter cannot term
it as an error apparent on the face of the record for the findings given in
the said order for which the promoter can seek review of the same as it
is a well-reasoned order passed by the MahaRERA. Moreover, the
promoter has pleaded the grounds of appeal which are to be agitated
before the Hon’ble Appellate Tribunal and hence the same cannot be
taken into consideration by the MahaRERA while deciding these review
applications within the ambit of section 39 of the RERA and Regulation
36 of the MahaRERA (General ) Regulation, 2017.

20. However, the MahaRERA prima facie noticed that the issue of Covid-
19 pandemic does not seem to be considered by the Erstwhile Ld.
Member-1/MahaRERA while passing the said order dated 29-10-2020.
In this regard, it is pertinent to note that the aim and object of the RERA
is not only to regulate but is also to promote the real estate sector, which
is facing acute financial problems due to various issues which arose
recently one of which is the covid-19 pandemic. The promoter in this
case is showing its willingness to complete the project which has already

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suffered due to various issues since the year 2014 due to various force
majeure reasons such as Civil Aviation, change in DCPR -2034 etc. If the
issue about the Covid-19 Pandemic is brought to the notice of
MahaRERA by the promoter by filing this review application, the
MahaRERA being regulatory authority, cannot ignore it. Ultimately, if
the project gets completed within the timeline, the allottees would get
major benefit out of that. Hence, the MahaRERA feels that though the
review application suffers from various technicalities/legalities as per
the allottees the MahaRERA, it need not be considered by the
MahaRERA.

21. In this regard it is pertinent to note that as per the provision of section
38(2) of the RERA, the MahaRERA shall be guided by the principles of
natural justice and subject to the other provisions of the RERA and the
rules made thereunder. Besides, the MahaRERA shall have powers to
regulate its own procedure.

22. Considering the facts and circumvents of this peculiar case, the
MahaRERA find substance in the review application filed by the
promoter about not considering the issue of Covid -19 pandemic while
passing the said order. The MahaRERA in all such cases majorly filed
under section 18 of the RERA has taken consistent stand and has granted
concession in payment of interest by virtue of the various notifications /
order issued by the MahaRERA due to Covid-19 Pandemic from time to
time. Hence, in this case also although the said order was passed on 29-
10-2020, when the Covid-19 pandemic had already started due to which

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the MahaRERA had issued Notifications /Orders nos. 13 and 14 dated

2nd April, 2020 and 18th May, 2020, however, the same has not been
considered by the MahaRERA.

23. In view of the above , the following order is passed:

a) This review application is partly allowed.
b) The order dated 29-10-2020 passed by the MahaRERA in Complaint
no. CC006000000100369 filed by the allottees is hereby recalled.
c) The following para-No. 14 (a) is added after para no. 14 of the
impugned order dated 29-10-2020 :-
“14 (a). With regard to the payment of interest to the complainants,
the MahaRERA further directs that the respondent promoter is
entitled to claim the benefit of “moratorium period” as mentioned in
the Notifications/ Orders nos. 13 and 14 dated 2nd April 2020 and 18th
May 2020 issued by the MahaRERA.”
d) The rest of the said order dated 29-10-2020 be read as it is.

24. With these observations/ directions, the present review application cum
complaint stands disposed of.

(Mahesh Pathak)
Member – 1/MahaRERA

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