= $5 BEFORE THE MAHARASHTRA REAL ESTATE APPELLATE TRIBUNAL APPEAL NO. AT006000000144294 Omkar Hansraj Guhilot & Ant. «+ Appellants Versus M/s. Ekta Parksville Homes Pvt. Ltd. .-- Respondent AFFIDAVIT IN REPLY I, Chandra Prakash Goyal, being the authorized signatory of the Respondent and having my office address at 401, Hallmark Business Plaza, Off. Western Express Highway, Kala Nagar, Bandra (East), Mumbai- 400 051 do hereby solemnly aftirm and state as under. 1. Isay that I am well versed with the facts and circumstances of the present case based on the documents and records maintained by Respondent company in ordinary course of business. I say that I am filing this affidavit-in-reply to oppose the captioned Appeal. 2. [repeat and reiterate the contents of the Affidavit in Reply dated 7” January 2021 (Exhibit Page 134 to 292 of the Appeal Memo) and written submissions dated 10" April 2022 (Page 499 to 602 of the Appeal Memo)filed on behalf of the Respondent before the Authority below, and the same be treated as reproduced herein, verbatim. 3. At the outset it is pertinent to note that the captioned Appeal is nothing but an attempt to maximize returns and profiteer. Inspite of having been granted reliefs sought in the complaint, this appeal has been filed to increase the monetary amounts awarded to the Appellants. The Appellants has already been granted an exit from the project with interest and therefore there arises no question of the Appellants challenging the order. The purpose of the Real Estate (Regulation & Development) Act, 2016 (“RERA”) is to protect the interest of allottees and to ensure allottees get their homes, it is not help allottees maximize their retum on investment. This appeal is a perfect example of the misuse of RERA. 4. The main basis for filing this appeal is the benefit of the “moratorium period” given to the Respondent pursuant to the Authority’s Notifications / Orders Nos. 13, 14 and 21 dated 2 April, 2020, 18" May, 2020 and 6" August, 2021, respectively on account of the Covid 19 pandemic. The Appellants are in the most unfair manner trivializing the effects of the COVID 19 pandemic which is a notified force majeure event. ‘oR mumeal ManaRasHTRA \% REGO NO. US231 Expiry Dato a1t0/2024gee ; Further, another absurd grievance raised by the Appellants is that the Learned Authority bas not ordered a refund of the statutory amounts while granting a refund of the amounts collected towards the subject flat. The Appellants are seeking refund along with interest on the amounts collected by the Respondent on behalf of the government like taxes, cess, stamp duty/ registration charges etc. I say that these amounts are a pass through and lie with the government. The Respondent is not a beneficiary thereof. The Authority has no jurisdiction to award refund of statutory amounts and has therefore rightly not adjudicated upon issues outside of its jurisdiction. The Respondent cannot be asked to refund what it doesn’t have to start with, Further, the Appellants have also relied on observations made by the Hon’ble Apex Court of India in the case of Newtech Developers Pvt Ltd vs State of Uttar Pradesh &Ors. (Civil ‘Appeal Nos. 5745, 6749 and 6757 of 2021) to claim that his right to claim refund with interest is unqualified. Pertinently, of the 7 issues framed and decided by the Hon’ble Apex court in the above case of Newtech (Supra), none pertain to delay in possession, payment of interest and extension in possession timelines. A mere observation/ view on the issue is not a binding precedent. It must be borne in mind that the Appellants have already been granted a refund with interest, and therefore Newtech (Supra) is of no consequence. ‘Another reason for filing the captioned Appeal is the fact that the Learned Authority has not awarded refund of the pre-emi paid on the housing loan ayailed by the Appellants. This Tribunal in the case of Vinay Singh vs Kapstone Constructions Pvt. Ltd. already held that the RERA does not concern repayment of loans and the Authority/Tribunal don't have jurisdiction to go into the issue. A copy of the judgment passed in the above appeal is annexed hereto and marked as Exhibit A. In any event, and without prejudice, it is pertinent to note that the Respondent has till date paid an amount of Rs. 6,25,857/- towards pre-emi interest on behalf of the Appellants. . Ibis pertinent to note that the impugned order awards the Appellants a refund with interest on a partial reading of clause 13 of the Appellant's Agreement for Sale dated 10"December 2014 (“said Agreement”) which provides for a date of December 2017 as the date of possession with a 6 months grace period. This date is also subject to the occurrence of mitigating events as more specifically specified the same clause of the said Agreement. There is, factually, no delay in terms of the said Agreement and therefore section 18 of the RERA is not attracted. ‘The Respondent has already completed construction of the subject flat and applied for the occupation certificate on 26" December 2022from the planning authority despite several hurdles. The layout of which the subject project forms a part has 43buildings, out of which the Respondent has already received Occupation certificate for 21 buildings.Sat 10. There is no delay in possession, and section 18 of the RERA is not attracted nor invoked in the instant case, for the following reasons and if the following facts are taken into consideration, iti, vi. The factual matrix of the present case will show that there is absolutely no delay in terms of the agreement for sale, Section 18 of the RERA contemplates a situation where a promoter fails to handover possession in terms of the agreement for sale. The date of December 2017 mentioned in the said Agreement was subject to a grace period of 6 months. This was subject to a further extension on occurrence of mitigating events specifically contained in clause 13 of the said Agreement. ‘The Appellants purchased the subject flat knowing fully well about the nature and magnitude of the project being undertaken by the Respondent, The subject Project forms part of a larger layout owned by Housing Development and Infrastructure Limited (“HDIL”) at Chikale Dongare, Virar. The said Agreement has clear and transparent disclosures as regards the role of HDIL in respect of the project. ‘The larger land was sub divided into smaller plots and thereafter HDIL granted development rights in respect of each sub-divided plot to multiple developers including the Respondent. The developers of the sub-divided plots were responsible for the development within their plots and HDIL is responsible for the larger layout related compliances and for permissions from authorities. The erstwhile planning authority in respect of the larger layout was the City and Industrial Development Corporation (“CIDCO”) which was replaced by the Vasai Virar City Municipal Corporation (“VVCMC”). Owing to this change in the planning authority, the Respondent had to re-submit already sanctioned plans/documents for approval to VVCMC as per VVCMC norms when the planning authority changed. This caused delays in development by almost 19 months. After work commenced pursuant to sanction of plans by VVCMC, on December, 2013, the VVCMC directed stop work inter alia on the subjectproject. This was communicated to the Respondent by HDIL vide letter dated 9" December, 2013 (Pages 210 to the Appeal Memo).Rr sh ‘ Thereafter, another Stop Work Notice dated 8"January, 2014 was issued by the VVCMC once again directing stop work on the Project. HDIL, by letter dated 8" January, 2014 forwarded the aforesaid stop work notice to the Respondent and called upon them to stop work until further orders by the VVCMC. (Pages 214 to the Appeal Memo). viii, HDIL, vide letter dated 16" January 2014 confirmed to the Respondent that they shall forthwith cause the withdrawal of the stop work notices issued by VVCM. (Pages 218 to the Appeal Memo). ix. VVCMC issued the revised development permission only in the month of May 2014 vide its letter dated 15"May, 2014 thereby enabling the Respondent to recommence construction work in the project after the stop work notice was issued(Pages 220 to the Appeal Memo) x. The abovementioned stop work notices severely disrupted the timelines of the project which was brought to a standstill for a period of 6 months, and thiswas in no way attributable to the Respondent as is evident from the documents on record, One of the factors stated in clause 13 of the said Agreement enabling reasonable extension is stop work orders. xi. Further, scarcity of sand which is the most essential building material that is required for construction, also adversely affected the construction timelines of the project. Scarcity of sand was also one of the mitigating events stated in clause 13 of the said Agreement which allowed extension in possession timelines. xii, Since2011, there has been severe scarcity of sand in the State of Maharashtra owing to ban on mechanized mining of sand, Sand for construction purposes was available only against permits issued by the Revenue and Forest Department, Government of Maharashtra. Such permits were valid only for a period of 3 months. xiii, Only limited quantity of sand was available and the quantity of sand that was supplied by the suppliers holding such permits and its quality was not helpful to undertake construction at the envisaged pace. The sand was completely unfit for any masonry work involved in multi-storied buildings. xiv. Vide its Judgment dated 12"January, 2011 the Hon’ble Bombay High Court (passed in Civil Writ Petition Nos, 97 and 98 of 2011) put a moratorium onxvii. xvii, xix. XX, sa - excavation of sand without the State Government's permission leading to the commencement of the scarcity problem. (Pages 228 t0239 to the Appeal Memo). On account of this scarcity of good quality construction grade sand, the Respondent attempted to undertake construction with alternative material such as fly-ash, stone-dust, dry mortar ete. but the same resulted in compromising with structural stability of the buildings and therefore the same could not be used as a replacement of sand. Work progressed slowly as and when sand became available, The Principal Bench of National Green Tribunal at Delhi had by order dated "August 2013 passed in Original Application No. 171 of 2013 imposed a blanket ban on sand mining across the country on account of illegal mining activity and sand mining carried out by miners on certain riverbeds in the country. In the year 2015, Principal Bench of National Green Tribunal at Pune, while deciding Application No. 58 (THC) of 2014 on 9November 2015 restrained the concerned authorities from issuing any construction permission to any residential, commercial or industrial projects. The principal bench of Western Zone at Pune by Order dated 31March,2017 passed in Application No. 63 of 2015 restricted use of suction pumps and mechanical equipment in the riverbed for sand mining in Maharashtra, and further strictly prohibited use of the same unless there was a specific approval granted by SEIAA/ DEEIAA as per the provision of EIA notification 2006 (pages 535 to the Appeal Memo). This again led to delay in undertaking construction work as the construction grade sand scarcity continued unabated the shortage resulted in hampering timely construction schedules as also project costs/feasibility. Pertinently, the concerned Authority issued revised guidelines for mining of sand accordingly sand in some limited quantities became available after the month of March, 2017. Thus, as a result of the above judicial restrictions/directions, no sand was readily/easily available from 201 lupto March 2017 leading to very slow pace of work. The Respondent lost about more than 22 months of work time due to scarcity or non-availability of sand for construction as well which, as stated above was a mitigating event covered under clause 13 of the said Agreement.Zao xxii xxiii. xxiv. xxv. xxvi xxvii xxviii. Additionally, the subject project also faced hurdles due to delay in provision of a peumanent electric connection/ supply from Maharashtra State Electricity Distribution Company Limited (“MSEDCL"). ‘The Respondent had paid monies to MSEDCL for camying out requisite jafrastructure work after applying for a permanent electric connection which has not been completed even today. me The delays are due to the inter se disputes between HDIL and MSEDCL, as’ 9 MSEDCL was not handed over land by HDIL on the larger land for installation of transformers for supply of electricity to the larger layout “The Respondent has managed to reach out directly to the MSEDCL and explain the plight of the“ sllottees who has been Kind enough to extend supply from is other transformers “,. and has provided electric meters to the completed flat ‘The delay in procurement of electric supply still continues even after applying for the same way back in 2018.It was only when the Respondent stepped in and requested the MSEDCL to show some concession on aeeunt of the fact that its allottees were suffering that there has been some progress and the project has received partial supply of electricity. Further, HDIL, which was to comply with all the larger layout related formalities and obligations in respect of VVCMC like hand over certain portions of the larger layout to VVCMC as an amenity space or for a road setback area or other reservations, failed to do so. This eaused the VVCMC to issue @ notice to HDIL to comply with its obligations and rejected applications for occupation certificate on this basis ‘As a result of the above, a complaint being Complaint No. €C006000000056960 ‘as filed inter alia against HDIL, VVCMC and the Respondent before this ‘nuthority by another allottee, In this complaint, at the instance of this Respondent, HDIL was made to give an undertaking that the layout related compliances would be adhered to.. tt-was thereafter that HDDIL started undertaking some complianess 0S required by VVCMC. HDIL soon thereafter, had gone into liquidation and is subject to a corporate resolution insolvency process. * fee odil xxix, In addition to the above, theproject required a consent to operate to Ro occupation certificate. The Cosent to Operate was to be procured by HDIL, whe as usual failed to do S<>. Eventully, in 2017 HDIL procured a conditional sarction to the Consent to Opex-ate. 2x, The above consent to operate was provisional and the final one would be issued only once the conditic>ans set out therein were completed by all sub-developers on the larger layout. As a result, the Respoxadent had to concentrate resources to set up the additional infrastructure required. by the Maharashtra Pollution Control Board (“MPCB") for grant of the final co xasent to operate. voail, After completing the aciditional work to facilitate grant of consent to operate, the same was granted by thae MPCB on 7" May, 2018 thereby causing a delay of 12 months in procurement thereof snd diversion of resources from constructing the project. (Pages 283to the Appeal Memo). | The outbreak of the Covid 19 pandemic also severely affected the timelines of the subject project. While thre Respondent was stil recovering from the earlier hurdles like stop work notices, lelay in grant of consent to operate, delays by MSEDCL, scarcity of sand ete. the Covid 19 pandemic struck. ‘The pandemic is a notified force majeure event and. it led to stoppage of construction sites, offices (including those of planning authorities) ete. xxiv, The Authority has itself, vide Oniers dated 18" May, 2020 and 6" August 2021 granted an extension of 12 montis on the possession timelines inter alia of the subject project on account of the Covid 19 pandemic. (Pages 562 to 565 to the Appeal Memo) vox, All of the above hurdles consumed 71 months of construction time, and contractually entitle the Respondent to an extension on the possession date. The date of completion mentioned on the website of the Authority is 30.09.2023 and the Respondent has alreacly applied for the occupation certificate voarvi, The tems of the said Agreement must necessarily be given effect to in entirety and this Authority cannot rewrite the terms of a mutually executed contract. Even the Authority is only bound to penalize the developer or burden it with the liability of interest if there is a delay in terms of the agreement for sale, but it cannot rewrite contracts,11. Without prejudice to the above, I shall now deal with the said Appeal, pargraphwise asunder: With reference to paragraphs 1 and 2, I deny anything stated therein as is contrary to the case set up by the Respondent No. 1 herein, or the records maintained by it during the ordinary course of business. . With reference to paragraph3, 1 say that in light of the fact that there is 1 violation of the provisions of the RERA, there arises no question of this Learn Tribunal exercising its jurisdiction to hear the captioned appeal. An appeal fileda) for enhancement of compensation/interest is nothing but a misuse of the RERA. ae With reference to paragraph 4, I say that the Appellants have not shown how the 4 captioned appeal has been filed in time. A mere statement has been made that the appeal has been filed in time, Until proved otherwise, the appeal must be taken to be defective and as such time barred. With reference to paragraphs 5 A and 5 B, I deny anything stated therein as is contrary to the case set up by the Respondent herein, T repeat and reiterate what has been stated herein. With reference to paragraph 5 C, I say that the contents of the said paragraph under reply are contrary to the contract mutually and voluntarily executed petween the parties. There is no documentary evidence placed on record. | repeat and reiterate that the date of possession mentioned in the said Agreement is December 2017 subject to a 6 month grace period and further mitigating events. Further, I say that the Appellants has wholly misunderstood the pre-em! understanding crystallized in the leter dated 6" February 2018 which specifically mentions that the Respondent's liability to bear and pay the pre-emi on behalf of the Appellants would come to an end once possession was delayed on account of events beyond the reasonable contro! of the Respondent. Annexed hereto and marked as Exhibit B is a copy of the letter dated 6" February 2018. With reference to paragraph 5D, I say that the said Agreement was mutually executed between the parties and is a valid, subsisting and binding contract. The Respondent has not breached any of the terms of the said Agreement and there is not even an iota of proof of any misrepresentation on part of the Respondent.42 8. With reference to paragraph 5 E, I say that the consideration payable for the subject flat along with all other taxes and charges is found in the said Agreement itself, . With reference to paragraph 5 F, I say that the Appellants appears to have completely suppressed the letter dated 6" February 2018 which mentions that the Respondent’s liability to bear and pay the pre-emi would come to an end in the event the date of possession was extended on account of events beyond the reasonable control of the Respondent. The Appellants has not once disputed the contents of the abovementioned letter. With reference to paragraph 5 G, I say that I am not aware of the terms on which the Appellants has availed housing finance, but say that the entire refumd can never go to the Appellants if there is a mortgage on the subject flat and if there is a lender involved. Unless the Appellants don’t close the loan, for which monies have to be paid to their lender, the flat wont be released and it wont come back to the Respondent. j. With reference to paragraph 5 H, I say that the said Agreement was voluntarily signed by the Appellants and the Appellants have acted in furtherance of the said Agreement forover 4 years without any dispute of demur. The Appellants are bound by all the clauses of the said Agreement. k. With reference to paragraph 5 I, I say that the date of possession as per the registered said Agreement was December, 2017. It was contingent upon occurrence of mitigating events stated in clause 13 of the said Agreement. It is nobody's case that the said Agreement is unenforceable. I reiterate that for reasons stated herein, there is no delay in possession attributable to the Respondent nor under the said Agreement. 1. With reference to paragraph 5 J to L, I say that all representations of the Respondent are contained in the said Agreement and the agreed terms of pre-emi are captured in the letter dated 6" February 2018. There has been no breach of both documents by the Respondent. The Respondent has paid an amount of Rs. 6,25,857/- towards pre-emi from December 2014 to October 2016. It is in line with the terms contained in letter dated 6" February 2018 that the pre-emi liability of the Respondent ended. m. With reference to paragraph 5 M, I reiterate that in terms of clause 13.1 of the said Agreement, the Respondent was to give possession of the said Flat by5a 10 December, 2017 along with a further extension of 6 months thereon and a further extension of time over and above the aforesaid period in the event that any of the circumstances specified in clauses 13. 1 (i) to (viii) occurred. This contractual bargain cannot be rewritten at the Appellants” instance. |. With reference to paragraphs 5 N and O, I say that the issue of pre-emi cannot be gone into under the RERA as has been held by this Tribunal itself. In any event, the understanding as regards pre-emi has been adhered to by the Respondent. With reference to paragraphs SP and Q, I say that the contents of the said paragraph under reply have no relevance under the RERA or for the purposes of. deciding this appeal, The Respondent has followed the applicable laws. With reference to paragraph 5 R, I say that the Appellants cannot for the first time in appeal raise issues not raised before the Authority below. The issue of area was not subject matter of the original complaint nor argued before the Authority. In any event, there is no variation in the actual physical constructed area of the flat. Only due to change in methodology for calculation of carpet area after the advent of RERA, there is a variation only on paper and not on site. With reference to paragraphs 5 S to U, I say that the complaint as also the captioned Appeal filed by the Appellants is without merit. The Appellants has failed to show any violation of contract or law by the Respondent for this appeal to be maintainable or entertainable. The impugned order should never have granted the Appellants even refund let alone interest. I reiterate that there is no delay in possession in terms of the said Agreement, I deny that the Respondent has violated any provisions of the RERA. With reference to paragraphs 6 A) to G), I say that the grounds contained in the said paragraphs under reply are generic, vague, as such unsubstantiated and denied. I say that the Authority ought not to have even granted an exit in light of the clear and express terms of the said Agreement permitting an extension on possession date. With reference to paragraph 6 H), I say that the Appellants are trivializing the impact of the pandemic on the real estate sector and on life in general. I crave leave to refer and rely upon the orders mentioned in the said paragraph under reply for the true and correct interpretation and meaning of its contents, and deny the Appellants’ version thereof, in foro.sis With reference to paragraphs 6 1) and J), I repeat and reiterate what is stated herein and deny anything stated in the said paragraph under reply as is contrary thereto, and/or inconsistent therewith. There is absolutely no breach of contract by the Respondent who has only acted within four comers of the said Agreement and pre-emi arrangement. The Appellants can’t be secking to rewrite other agreement that they find inconvenient. . With reference to paragraph 6 K), I say that the Appellants has failed to establish any case of violation of RERA by the Respondent, Simply citing sections of the Statute without any proof showing breach cannot be entertained. None of the above is present in the present case. The case argued before the Authority below Was restricted to delay in possession only. There is no delay in possession in terms of the said Agreement and therefore section 18 does not apply. No false or misleading representations to the Appellants therefore section 12 is also not applicable. There is no amendment of plans and therefore section 14 also is not invoked. The Respondent can only be penalized when it has breached the said Agreement and violated the RERA. With reference to paragraph 6 L), I deny the baseless allegations made in the said paragraph under reply and say that the Respondent has paid the pre-emi in line with the understanding between the parties. The Appellants have deliberately suppressed the letter dated 6" February 2018which recorded the understanding of the pre-emi, I reiterate that payment of pre-emi does not fall within the realm of the RERA. In any event, Section 12 is not applicable when the parties have executed an agreement for sale containing the final representations between the parties. With reference to paragraphs 6 M) and N), I say that the Appellants has misread the terms of the said Agreement especially clause 13 containéd therein. The Respondent is contractually entitled to an extension in the possession date for circumstances which are all covered under the clause 13.1° permitting an extension. I say that the Covid 19 pandemic is a recognized force’ majeure event and the Respondent cannot be penalized for the same, as the pandemic was not within its control, - With reference to paragraphs 6 ©) and P), I say that the Appellantsneeds to differentiate between an obiter or mere observation made by the Supreme Court of India on a particular issue in a case having substantially different facts and issues in their case. I repeat and reiterate that out of the issues framed and decided by the Supreme Court in the case of Newtech (Supra) none pertain to5% y. aa. bb. ce. dd, 12 whether a developer is entitled to reasonable extension in possession timelines in case of occurrence of mitigating events or the liability to pay interest on account of any alleged delay in possession. Newtech (Supra), if at all, would apply in plain vanilla case, and not in the present case where the possession dat contingent upon other factors and a caveated one. With reference to paragraphs 6 Q) to S), I say that the contents of the s paragraph underreply have already been dealt hereinabove and repeat reiterate the same. I reiterate that pass through amounts cannot never be refundable as they don’t like with the Respondent promoter. Refund is giving back what one has received and utilized/retained, not something that was meant for and has been paid to a third party. The Appellants can always claim refund of such other amounts before the concerned Authority. With reference to paragraph 6 1),I deny the baseless allegations and claims made in thesaid paragraph under reply.I say that the final and binding terms of the sale transaction executed between the Appellants and Respondent were crystallized in the said Agreement and the same must be read and enforced in entirety. With reference to paragraphs 6 U) and V), I say that the basis of any award of refund is that the unit is returned to the developer. This is the basic quid pro quo of refund cases. If the flat is mortgaged, until the lender is paid and the charge is released, the flat won't revert back to the developer. In the instant case, the mortgage has been created by the Appellants and they need to first release the subject flat from the charge of their lender. In any event, the Respondent has been wrongly directed to give refund with interest and is handicapped by the requirement of the proviso to section 43(5) of the RERA. With reference to paragraphs 6 W) and X), I crave leave to deal with and oppose (if necessary) any addition, amendment, alteration, deletion and/ or modification carried out by the Appellants, prior to the same being allowed by this Tribunal. Further, I say that no case is made out for grant of any relief® in this appeal. With reference to paragraphs 7 and 8, I say that in light of what has been stated herein, no reliefs either as prayed for in the said paragraphs under reply or even. otherwise ought to be granted to the Appellants. With reference to paragraphs i) and ii) titled ‘Reasons’, I say that the contents of the said paragraphs under reply are denied and it is reiterated that for reasons stated hereinabove, there is no misrepresentation and/ or violation by the54% Respondent. There is no liability to pay any pre-emi and no obligation to refund any monies with interest since the order is illegal, perverse and prejudicial . With reference to paragraphs 9 and 10, I am not aware and therefore do not admit to the contents thereof. With reference to paragraph 11, I crave leave to refer to and rely upon all documents stated in the list of enclosures in the said paragraph under reply, and those documents, material, data, law etc that may be produced by the Appellants during the course of these proceedings, for the true and correct interpretation and meaning of their contents and deny the Appellants’ version thereof, in fofo. 12. In light of what has been stated herein, the present Appeal ought not to be entertained on any count whatsoever and the same be dismissed with costs. Solemnly declared at Mumbai ) Dated this 31" day of May, 2023 ) Before me For M/s Wadia Ghandy & Co. Ekta Parksville Homes Pvt Ltd, Partner Ly cores Signatory +P irogad) Advocates for the Respondent OR. MUNeA: f+ (sce \E E chener Abn > Patel) pees a, BEF eo ce ‘OFINDIA se NOTARY CONE. tv eal, Maharastra Reg, No. 15231Exusom-'A' 5% 37006000000010870 BEFORE MAHARASHTRA REAL ESTATE APPELLATE TRIBUNAL MUMBAI APPEAL NO. ‘AT006000000010870 Vinay Singh ] having address at G3001. Eastern ] Express Highway India, 1 Rustomjee Azziano, } Thane West: 400 610. } Appellant vs Kapstone Constructions Pvt. Ltd. ] having address at 702, Natra}, 1 NEY. Road Junction, Western Express] Highway, Andheri (East), j J Mumbai- 400 069. Respondent ‘Agu. Ms, Mugdha Sahal for Appellant. ‘Aav. tr, Abir Patel for Respondent: _ CORAM : SHRIRAM R. JAGTAP, MEMBER (J) & §.S. SANDHU, MEMBER (A) DATE: 10° August, 2022. (THROUGH VIDEO CONFERENCING) JUDGMENT (PER: SHRIRAM R. JAGTAP, MEMBER GQ.) ‘this appeal arises from the order dated 18" July 2018 passed by learned Chairperson, MahaRERA in Complaint No.cc006000000044011 filed by allottee, whereby learned wisSt 2 47006000000010870 Chairperson, MahaRERA refused to grant relief sought by allottee in his complaint. 21 Appellant and respondent hereinafter will be referred to as complainant and developer respectively. 3] Facts as gathered from the record indicate that complainant has purchased an apartment bearing No.3001 in Wing-G of the respondent's project “Rustomjee Azziano” situated at Thane Complainant filed complaint alleging therein that developer agreed to pay pre-EMIs of home loan until he takes possession of flat. On 18% February 2018 representative of developer informed the complainant by email that the developer has received occupation certificate for the flat and fiat is complete in all respects. The developer has raised demands for full and final payment including the charges for common amenities like Gym and Club-house. The representative of developer further apprised complainant that developer would pay interest on home loan till 18% February 2018 since they have already sent final demand letter, Soon after receipt of email, complainant visited the flat and found that developer had not completed the internal work in the flat and the subject flat was not habitable. The developer was supposed to carry out internal works in the flat like (1) wall mounted western WC, (2) wash basin, (3) kitchen sink, (4) flooring and tiling work in the 233 87006000000030870 living room before issuance of final demand letter. Apart from the above internal works none of the common amenities were ready, yet developer was demanding full and final payment including costs for common amenities from the complainant. 4] Tt was also alleged in the complaint that on taking all these issues with the representative of developer, he committed to complete the same after developer receives full and final payment. In reliefs, complainant sought direction to developer to reimburse EMI till the project is completed. 5] The developer has appeared in the complaint and remonstrated the claim of complainant contending that developer has obtained occupation certificate for the said project in February 2018 and possession of the apartment along with amenities, was offered to complainant in accordance with the terms and conditions of agreement for sale. As per agreed terms between the parties, the developer was required to pay pre-EMIs only til the last and final demand is raised by the developer, which has been raised after receipt of occupation cettificate from the competent planning ‘Authority. The developer has specifically contended that developer has not violated any of the terms and conditions of agreement for sale. an3 600col 4 4T006000000010870 6] ‘After hearing the parties, the learned Chairperson, MahaRERA (for short “Authority") passed the impugned order holding that respondent is not liable to pay pre-EMIs after occupation certificate has been received and the demand for full and final payment of consideration price has been raised. 7] We have heard the arguments of Adv. Ms. Mugdha Sahal for appellant and Adv. Mr. Abir Patel for respondent. 8] The skeleton of the argument of learned Adv. Ms. Mugdha= ahal is that allottee booked a flat bearing No.3001 in Wing-G of respondent's project “Rustomjee Azziano” in March 2016. The developer committed to hand over possession of the subject flat by 30" June 2017 with grace period of 12 months, and at the same time the developer also committed to pay interest on bank loan till issuance of final payment demand letter. In March 2018 the appellant borrowed loan of Rs.1,37,00,000/- (Rupees One Crore Thirty Seven Lakhs Only) from HDFC Ltd, The developer has executed document known as "Cost Sheet” in favaour of allottee, whereby the developer agreed to pay interest on the bank loan till issuance of final demand letter of possession. However, in the month of February 2018, the developer deposited only Rs.62,991/- in the loan account of allottee. On 16" February 2018 the developer issued final demand letter to the allottee 4,OES 5 7006000000010870 and raised a demand of Rs.26,95,528/-. After issuance of the said demand letter, the developer immediately stopped paying pre-EMIs. 9) It is further argued that soon after receipt of final demand letter, the allottee visited the flat on 22°¢ February 2018 and found following infirmities, shortcomings, and missing amenities in the flat = (1) wall mounted English WC (missing in both bathrooms). (2) washbasins and commodes (missing In both bathrooms). (3) _ Kitchen sink (4) Flooring and tiling work in the living room. (5) _ Electric fittings. (6) _ Incomplete painting. (7) Common amenities like Gym and Club house, (8) Balcony windows were not installed properly: 10] on 234 February 2018 the allottee communicated the aforesaid missing fitures and fittings In the subject flat to the respondent/developer by email. On 25" February 2018 the developer replied by email that missing fixtures and fittings will be provided once the balance payment will be paid by the appellant. This signifies that the respondent failed to provide basic fixtures and fittings in the subject flat. The flat was not in habitable condition. The conduct of the respondent constrained the appellant to file complaint. sA3 gor6 4T006000000010870 11] Itis further argued that the developer installed fixtures and fittings in the subject flat by 13" May 2018. However, the developer as per his own convenience stopped to pay pre-EMIs and made allottee to bear the burden of payment of pre-EMIS for 4 months. Adv. Ms. Mugdha Sahal has sorely submitted that the brochure issued by respondent clearly indicates that the developer promised to pay pre- EMI until the allottee takes possession of flat. It is not in dispute that the developer handed over possession of the subject flat to allottee im july 2018. Therefore, the respondent is liable to pay pre-EMI till Jul 2018. The developer is liable under Section 19(4) of RERA to refund of * amount paid alongwith interest as developer offered possession of the flat to allottee which was not ready for possession. The developer is also liable under Section 12 of RERA for failure to fulfill commitment of payment of pre-EMIs till issuance of final demand letter. It is not in dispute that the allottee took possession of the subject flat in July 2018, Therefore, the respondent is liable to pay compensation to allottee under Section 18(3) of RERA and also liable to pay pre-EMIs for 4 months to allottee. With these submissions, the learned Advocate for allottee prayed to grant reliefs sought in the appeal and complaint. 12] Succinct of argument of Adv. Mr. Abir Patel for respondent is that the entire case of the allottee is premised on the claim that pre- ona604 87006000000010870 7 EMI on his housing loan was to be borne and paid by the respondent until he takes possession of the subject flat. The allottee sought directions to respondent to pay pre-EMI on his housing loan for 4 months. However, the relief claimed in the complaint as well as in the appeal is outside the realm of the RERA. 13] Its further argued by the developer that the appellant has produced a new document i.e. brochure on record which was neither produced before the Authority nor annexed to the instant appeal. A party cannot produce new document by way of pleadings and therefore the document produced with rejoinder is not admissible and cannot be considered for the purposes of deciding the appeal. Besides, the brochure does not bear the signature of the developer Moreover, the appellant has not explained source of the brochure. Therefore, the prochure cannot be taken into consideration for deciding the appeal. ‘The appellant, for the first time, raised a new issue at appellate stage which was neither pleaded nor argued before the Authority. Neither the respondent was given a chance to deal with such document i.e. prochure before the Authority nor did the Authority itself get a chance to adjudicate the claim of allottee on the basis of this document. wy Therefore, the Tribunal cannot take cognisance of the brochure. < 3609 8 AT006000000010870 14] Learned Adv. Mr. Abir Patel invited our attention to the document which is styled as “Cost Sheet” and submitted that the said cost sheet signed by the appellant at the time of booking of flat states that the respondent's liability to pay pre-EMI shall be up to the date when final demand is raised on the appellant. The appellant has not produced document to show that pre-EMI was to be paid up to the date on which possession of flat was taken by the appellant. The final demand, as per usual practice, is raised on procurement of occupation certificate. It is well settled proposition of law that no Court can rewrite “o. contract. The allottee is bound by cost sheet and therefore by a Zs, stretch of imagination it cannot be said that the developer is liable ele’ pay pre-EMI on housing loan of allottee until allottee takes possession of the flat 15) It is further argued by the developer that the allottee cleared final outstanding amount in multiple installments and last installment was paid only on 27% June 2018. Thereafter allottee took possession of the subject flat on 4% July 2018. The allottee has committed default in making payment by 4 months and thereby violated the provisions of Section 19(6) of the RERA. The allottee is also in violation of Section 19(10) of the RERA for deliberately avoiding taking possession of subject flat within 2 months of occupation 8/33606 47006000000010870 certificate, The allottee, upon being served with final demand letter, first raked up baseless dispute about alleged shortcomings in the flat. -Those were merely issues with finishing and touch-up work and no any work that remained incomplete, The developer installed fixtures and fittings in the subject flat and communicated the same to allottee by email dated 14% May 2018. 16] So far as the amenities are concerned, learned Adv. Mr. Abir patel submitted that all amenities stated in the agreement for sale have been provided to allottee and as such the project is being developed in phase-wise manner as per sanctioned plans. The allottee is well aware of phase-wise development of subject project. Clause-13.7 of the agreement for sale clearly indicates that the project including amenities would be completed and handed over in a phase-wise manner ‘Therefore, the claim of allottee in regard to non-providing of amenities is misleading, Learned Adv. Mr. Abir Patel for respondent has placed reliance on following citations : (1) HS. Goutham Vs. Rama Murthy & Another. [(2021) 5 SCC 241]. (2) _ Rajasthan State Industrial Development And Investment Corp. & Another Vs. Diamond & Gem Development Corp. Limited. [(2013) 5 SCC 470}. ae (3) _ Institute of Chartered Accountants of India Vs. L.K. Ratna & Others. [(1986) 4 SCC 537] ons20 4T006000000010870 (4) Daman Singh & Others. Vs. State of Punjab & Others. [(1985) 2 Scc 670]. (5) Ashok Kapil Vs. Sana Ullah (Dead) & Others. [(1996) 6 SCC 342). With these submissions, learned Advocate submitted that appeal be dismissed with costs. 17) After considering the submissions advanced by learned Advocates appearing for respective parties, impugned order and the documents on record, the only point that arises for our determination is, whether the relief sought by the appellant in complaint falls within the ambit of RERA, 2016 ? To this our answer is in the negative for the w/C) & reasons to follow. = oics x\ we REASONS f ‘ 18] Itis specific case of allottee that by virtue of brochure and», ei) my document styled as ‘cost sheet’ pre-EMI of his housing loan was to be borne and paid by the developer until he takes possession of the subject flat. Disagreeing with this contention of the allottee, the developer claimed that the relief claimed by allottee does not fall within the ambit of RERA, 2016 and therefore, neither the Authority nor this Tribunal has jurisdiction to entertain the complaint which contains relief to direct the developer to pay pre-EMI though the developer has not violated any of the provisions of RERA, 10713oot uu 87006000000010870 19] ‘close examination of provisions of RERA, 2016 shows that certain provisions of RERA empower the allottee to claim monetary reliefs such as refund of amount along with interest and compensation, if promoter fails to fulfil his obligations defined under Chapter III of the Act. Some of the obligations are spelt out in Sections 12, 14, 18 and 19 of the Act, The concatenation of provisions of RERA by which the allottee can claim aforesaid reliefs may be summarised as under ~ (a) Section 12 of the Act provides allottee to claim relief of compensation for sustaining loss or damage on account of false representation contained in advertisement or prospectus etc. proviso to Section 12- provides allottee to claim compensation along with return of investments with interest, (b) Section 14 of the Act relates to adherence to sanctioned plans and project specifications by the promoter. Section 14(3) empowers the allottee to receive compensation in the event when there isany structural defect or any other defect In workmanship etc. (©) _ Sections 18(1) and 19(4) of the Act entitle the uy3601 20] 2 47006000000010870 allottee to claim refund of amount paid along with interest and compensation, if the promoter fails to complete or is unable to give possession of an apartment or building. Proviso to Section 18(4) provides interest to allottee in case of delay in possession. (d) Section 18(2) of the Act empowers the allotize to claim compensation for loss sustained on account of defective title of the land on which the project is developed. %, (e) Section 18(3) ofthe Act gives right to alfottee to Ye claim compensation on account of failure of aN promoter to discharge any other obligation imposed “0. ) upon him under the Act, Rules and Regulations. The Authority has jurisdiction to adjudicate claim relating to interest for delayed possession, refund of amount, and for other violations of provisions of RERA as the case may be. The Adjudicating Officer has limited jurisdiction under Sections 71 and 72 of RERA to adjudicate compensation under Sections 12, 14, 18 and 19. In the instant case the allottee has claimed reliefs of direction to developer to reimburse pre-EMI on his housing loan till he has taken possession of 1/313 8T006000000010870 the flat ie, for 4 months i. tll July 2018. The aforesaid relief does not fall within the ambit and scope of RERA, 2016. The Authority as well a8 ‘Adjudicating Officer have no competence to entertain, hear and decide the complaint containing such relief, The Authority as well as Adjudicating Officer have Inherent lack of jurisdiction to hear and decide the said complaint, 2s It is contractual dispute, 21] After considering the relief claimed by allottee inthe instant case, we are of the view that the relief sought by appellant is outside the scope or realm of the RERA and therefore Authority, Adjudicating officer and this Tribunal have no jurisdiction to grant such relief. Appeal ig devoid of merits. Consequently, we pass the following order ~ ORDER (i) Appeal is dismissed. (ji) Parties to bear their own costs. (iii) In view of the provisions of Section 44(4) of the Act of 2016, copy of the Judgment shall be sent to the parties and the Authority. (S.S. SANDHU) uy (SHI iia R. JAGTAP) U TRUE COPY \w @ mater Wadia Ghandy & Co. 3/8 ‘Advocates, Solicitors & Notaries N. BE. Wadia Building, 123, Bahatme Gandhi Read, Fost, Mumbai - 406 023. 610To, Thar ‘Sub: OMAR H. GUHLOT / HANSRAJ R. GUHLOT 1703, Bidg No. 4, Regency Heighs, ‘Azad Nagar, Brahmand, 400 807 Thane-400607 \Waharasha nda Wo 619518521 9619520983, 4. Agreement fr Sse dale 10-Deo-14 recistored wih the offes ofthe Sub registrar of Assurances Vasal exeoutd between yousalf and ourseves. 2 Payment of pre-EM interest onthe housing logn availed by you for purchase of Flat No, 1005 wing H ‘in Brookiyn Park phase of our Ekta Parksville Project (sald Project in ier, Maharashtra Wie reterto the above an wit to you in respact thera. By and under Agreement for Sale dated 10-Dec-14 you have purchased the said Flat from us for @ cansideraton and onthe terms and conditions spectfed therein. Prior othe execution of Agreement of Sale ie. when you approached us to book said Flat provisonalin your name, you had aso requested us lo consider bearing the pro-EMlinerest of the housing loan thal you intondd to aval fe purchase of the said Fat, since the said Project was at a nascent stage and there was no foreseeable dale of possession af he relevant ime, {Upon your aquest, we informed you that we ware athe tim runing an of where the company would ‘bear the pre-EMl interest ofthe Fat purchaser and reimburse he same, but only fora ted pared of ‘ime, We aso informed you, tat should you aval ur offer we would bear your pre EMI inter! upto handover of keys ofthe sald Flat only. We further informed you that ho dato of handover of the sald Flat was subject to miigating circumstances beyond our conto and that in the event of any dela for reasons beyond our cont, ourpre-EMI Lblty weld stand susponded, Pursuant fo extensive negotiation it was agreed betveen both the paros that wo would romburce your ‘re-EM| interest uplo the date on which the keys ofthe sald Flat would be handed over to you. It was ‘also agreed that such pre-EMl interest and our obigatons to reimburse the same would stand suspended in the event thatthe dale of handover ofthe said Flt was delayed on account of reasone beyond our reasonable contol Based on our aforesaid understanding and our bonafde bel that we would hand over the Keys of the ‘59 Flat fo you by 20-Jun-15 on best effort bass, we commanced reimbursing the pre-EMI intrest agains he interest paid by you on your Housing Loan from HDFC LTD We havo paid a sum of RS. 4783941 to you towards such pe-EMinerest ‘Wie would tke to bring to your notice thatthe said Project has been delayed owing fo reasons beyond ‘ur reasonable conto. These are essonslcicumslances that conrectualy eile us o a revised date for handing over the said Flt. As ares ofthese reasons, we have been unable to handover kays of the said Flat to you which was the originally projected and greed date for handover of keys to you ‘lease note that we wl now be in poston to handover keys of the said Fll to you only by 31-Aug-18 ‘As pe our understanding, in the event of any dely in handover of the sai ltt you, ou abit to reimburse you the re-EM inlerest woul cease. As a consequence ve a, in actordance wth our understanding wth you no longer able to pay any further pre-EMineest you. Wie request you to kindly take note ofthe aforesaid. We appreciale your continued faith in our projet. and assure you of early handover of he said Flt ‘wer ektaor com TRUE COPY \pr Vegeta ae Sian io a NT EO N.M. Wadia Building, 123, Muhatma Gandhi Road, Fort, Mumbai - 400 023.Y8@O Susy sontvatt 8) 3s anal i asrmeK & Hwiiathoz gnilsliog® allt peat Lalnsd? mined FSW OOF —Yasdinads, 06%