1

AT006000000053461

BEFORE MAHARASHTRA REAL ESTATE APPELLATE TRIBUNAL

MUMBAI

APPEAL NO. AT006000000053461 0F 2021

IN
coMPLAINT NO.CC006000000192332

Mr. Vijay Choksi l

301, Ghumman Villa (Palazzo) l
Plot No.53, Road No.12, Vile Parle (W), l
I\4umbai- 400 049 l ,..Appellant

-vs-

1) SSSC Escatics Pvt. Ltd. l

2) Wadhwa Group Holding Pvt. Ltd. l
Ram Krupa Bldg., Devji BhimjiLane l
l4athuradas Road, Kandivali (West), ]
lYumbai- 400 067. l ,..Respondents

Adv Ms. lennifer Michael for Appellant.

Adv Mr. Bhupesh Dhumatkar for Respondent No.l.
None for Respondent No.2.

CORAM : SHRIRAM R. JAGTAP, MEMBER (J) &

S.S. SANDHU, MEMBER (A)

DATE : 18th October,2O22.

(THROUGH VIDEO CONFERENCING)

JU DG MENT

[PER: SHRIRAM R. ]AGTAP, MEMBER (J.)]

The complainant (allottee) being dissatisfied with order

w dated 24th September 2021 passed by learned Memberl, MahaRERA

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(for short "Authority"), whereby the learned Authority instead of

granting reliefs sought in the complaint, directed the respondents to

execute agreement for sale, has preferred instant appeal on the

grounds enumerated in the appeal.

21 For the sake of convenience, we would refer the parties in

their original status as complainant and respondents as referred in the

impugned order.

3l It is revealed from the pleadings that the respondents have

jointly undertaken redevelopment of building known as "The Nest" on

the land bearing CTS N0.196(Part), situated at Ganesh Chowk, Bhavans

Camp, D.N. Nagar, Andheri (West), Mumbai under S"R.A. Scheme

Regulation 33(10) of the Development Control Rules, 1991. On 19th

July 2013, the complainant booked a 3 BHK flat bearing No.8-502 in

the project of the respondents for total consideration of

Rs.2.62,35,000^ and paid Rs.1,20,00,000/- to the respondents by

cheque. Pursuant to the said booking, the respondent no.1 issued

allotment letter dated 24th July 2013 to the complainant. Subsequently,

the complainant made payment of entire consideration amount i.e.

Rs.2,62,35,0561- to respondent no.1 from time to time.

4l Since 2015, the complainant has been enquiring about the

date of possession, but respondent no.1 has been giving evasive reply

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to complainant. It being on going project, the respondents have

registered the project with MahaRERA and declared the date of

possession as 31.3.2019. However, the respondents failed to hand over

possession of the subject flat to complalnant by 31.3.2019. The

respondents without obtaining consent of the complainant have

unilaterally revised the date of possession to 31.3.2020

sl The respondent no.1 represented to the complainant that

the area of the subject flat is 2385 sq.fts. A letter of allotment also

shows saleable area of the subject flat as 2385 sq.ft.(221 sq. mt.).

However, on the website of MahaRERq the area of subject is shown as

976.82 sq.ft. (90.25 sq.mt.) which depicts that there is short fall ln the

area of subject flat. The respondent no.1 duped the complainant. The

complainant suffered economic loss because of misrepresentation of

respondents. The respondents have violated the provisions of Sections

12 and 18 of RERA and thereby constrained the appellant to file

complaint.

6l The complainant has sought following reliefs -

(i) To direct the respondents to refund Rs.2,62,35,056/- to the

,'{ complainant with interest.

(ii) To direct the respondents to pay compensation of

Rs.3,00,000/- to the complainant for mental stress and agony

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(iii) To award costs of R.3,00,000/-.

7) The respondent no.1 appeared in the complaint and

remonstrated the complaint by filing affidavit-in-reply. The crux of the

contentions of the respondent no.1 which emerged from the impugned

order and from material on record, is that the respondent no.1 did not

make representation as alleged by the complainant. The complainant

has failed to make out any case that he has suffered loss due to mis-

representation of the respondent no.1 which is pre-requisite condition

to invoke Section 12 of RERA. The respondent no.1 had never promised

any date of possession to complainant. The project is facing numerous

difficulties such as -
(a) The slum-dwellers did not vacate thetr hutments.

(b) The delay in obtaining permissions from the concerned

Authorities, policy paralysis of the authorities of the Government, delay

at the level of tvlunicipal Corporation of Gr. Mumbai etc. which were

beyond the control of the respondent no.1.

(c) Non clearance of access road.

(d) A pandemic of Covid 19 and stringent restrictions that

affected business of promoter severally and constructions of the

V building was stopped due to non-availabiltty of essential construction

material, transport means etc. which led to suspension of work and

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services of man power. Therefore, the respondent no.1 had no option

but to get extension of period for timely completion of project on

lvlahaRERA website as 30.9.2021. The respondent no.1 endeveoured

to complete the project within time line.

8I The respondent no.1 has not denied that in 2013/ the

complainant booked subject flat for total consideration of

Rs.2,62,35,000/- excludlng other charges. The respondent No.1 has

denied that the complainant has paid Rs.90,00,000/- plus

Rs.10,00,000/- in cash. In fact, the complainant has only paid

Rs.1,62,35,000/-. The respondent no.1 claimed that the complainant

booked the subject flat for investment purpose. The complainant was

apprised by respondent no.1 that the respondent no.1 was always

willing to give timely possession of the flat to the complainant, but

because of aforementioned force majeure factors, the respondent no.1

could not complete the poect. The respondent no.1 has further

contended that the area mentioned in allotment letter dated 24.7.2073

is saleable area. It is not carpet area. Saleable area consists of carpet

area, balcony, area covered by walls and flowerbed etc. Upon request

of complainant that he intends to avail loan, in the month of December

2019 the respondent no.1 promoter provided cost sheet to him

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el The respondent no.1 has further contended that on several

occasions/ the respondent no.1 requested lvlr. Aakash Choksi, the son

of complainant to pay necessary stamp duty and registration charges

for execution of agreement for sale, however, the complainant has

failed to come forward for executing agreement for sale.

101 The respondent no.1 has further contended that

respondent no.1 has completed the constructlon of B-Wing of the
subject project and applied for occupation ceftificate. The respondent

no.1 endevoured to complete the construction of the said wing building

within timeline as mentioned on the website of tt4ahaRERA.

111 Upon hearing the parties, the learned Member-1,

l4ahaRERA came to the conclusion that since no agreement for sale

has been executed by the parties, therefore, Authority found claim of

the complainant for refund of amount under Section 18 of RERA is not

maintainable. However, Authority has found that only relief the

complainant can ask is under Section 13 of RERA. Consequenfly, the

Authority directed both the parties to execute and register the

agreement for sale within a period of 30 days from the date of order

Y
failing which the entire amount paid by complainant be refunded to him

within a period of next six months.

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LZ) We have heard arguments of learned counsel for respective

pa ries.

13] Adv. Ms. Jennifer tyichael for Appellant assailed the

impugned order on the following grounds-

(i) The impugned order is perverse as it is passed in ignorance

and contrary to the relevant facts and evident from the record

submitted before the learned Authority. The learned Authority has

declined to grant relief of refund of amount only on the ground that no

agreement for sale has been executed by the parties and the allotment

letter dated 24.7.20t3 does not disclose the date of possession.

(ii) The learned Authority has failed to consider the law laid

down by the Hon'ble Apex Court in Fortune Infrastructure &

Another Versus Trevor D'Lima & Others reported in (2019) 5 SCC

442 that where no delivery date is stipulated, a reasonable time has to

be taken into consideration and reasonable time period would be 3

years for completion of the project. The said three years period would

come to an end on 24.7.2076. Besides, the learned Authority has

miserably failed to consider that the respondents themselves have

w declared the date of completion of

31.3.2019.
poect on MahaRERA portal as

(iii) The learned Authority has failed to consider that the

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respondents did not complete the project and failed to hand over

subject flat to the appellant by 31.3.2019

(iv) The learned Authority has failed to consider that the

respondents unilaterally revised the date of completion of project from

31.3.2019 to 31.3.2020 and again to 30.9,2021 and now to 30.3.2022

(v) This Tribunal in the matter of Ratul Lahiri Vs. Tata

Housing Development Co. Ltd. observed that the original date of

possession as declared by the promoter on the l.4ahaRERA portal was

the date of possession promised to the allottee and any unilateral

extension of the possession date was not binding on the allottee. This

Tribunal has also held that even though no agreement for sale is

executed, the date of possession can be ascertained from the other

documents including the original date of possession committed by the

promoter on the I'4ahaRERA portal. Therefore, the learned Authority

ought to have held that the original committed date of possession was

31.3.2019, therefore the fact that non execution of registered

agreement for sale and allotment letter did not disclose any date of

possession was entirely irrelevant.

(vi) The learned Authority ought to have applied its mind to

ascertain committed/promised date of possession from the factors such

as information uploaded by respondents on MahaRERA portal. The

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learned Authority ought to have considered that the allotment letter

discloses saleable area of the subject flat as 2385 sq.ft. (221 sq.mt.)

However, information uploaded by the promoter on l4ahaRERA website

shows area ofthe subject flat as976.82 sq.ft. (90.25 sq.mt.) only. Thus,

there is considerable shortfall in the area of the subject flat.

(vii) The learned Authority has failed to consider that RERA is

welfare legislation to provide protection and remedy to the appellant

against promoter to deal with various evils. The allottee has

indefeasible right under Section 18(1) of RERA to get the refund of

amount, if promoter fails to deliver possession as agreed for the

reasons not attributable to allottee. In the present case, the promoter

having failed to hand over possession by agreed date ls rinder

obligation to refund the amount under Section 18(1) with interest

(viii) The learned Authority has failed to consider the ratio and

dictum laid down by the Hon'ble High Court in Neelkamal Realtors

Suburban Pvt. Ltd, Vs. Union of India ((2017 2 SCC Online 9302)

that purpose of Section 18(1) (a) is to ameliorate buyers in Real Estate

Sector and balance the rights of the all stake holders. The promoter is

supposed to be conscious of getting poect registered under RERA.

Having sufflcient experience in the open market, the promoter is

expected to have fair assessment oF the time required for completing

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the poect. If the promoter defaults to hand over possession of flat to

the allottee in the agreed timeline or extended period, then allottee

shall reasonably expect compensation from the promoter' Therefore, it

was expected of learned Authority to grant relief of refund of amount

with interest to appellant.

(ix) The learned Authority has miserably failed to consider that

the appellant has paid entire consideration of Rs'2,62,35,000/- to the

respondents from time to time and despite this, the respondents have

failed to execute agreement for sale and thereby respondents have

violated the provisions of Section 4(1A) (ii) of MOFA and Section 13(2)

of RERA. The impugned order is not only contrary to the facts of the

case, but is also contrary to the provisions of RERA The learned

Authority instead of granting relief of refund of amount with interest,

has erroneously directed parties to execute agreement for sale. Such

an order cannot be countenanced and sustainable in law.

With these submissions, the learned Advocate for appellant

prayed that appeal be allowed and grant reliefs sought in complaint

and appeal.

w L4J Disagreeing

supporting the impugned order

with contentions of allottee and
to have been correctly
while

passed, the

learned Adv. I4r. Bhupesh Dhumatkaar for respondent No'1 has

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submitted that the project has faced numerous difficulties such as -

(1) Non vacation of structures by slum-dwellers due to

which the promoter could not commence the construction

work.

(2) Delay in obtaining necessary permissions from S.R.A

and concerned Authorities,

(3) Non clearance of access road.

(4) Pandemic Covid 19 and stringent restrlctions imposed

by the Government that affected business of promoter

severely and construction of the buildings was stopped due

to non-availability of essential construction material,

transport means etc which led suspension of work and

services of man power which constrained promoter to get

extension of time for completing the project from time to

time.

151 The learned Advocate has further sorely submitted that

despite force majeure factors as above and odd circumstances, the

respondent no.1 endevoured to complete the project within timeline.

The promoter was always willing to give timely possession of the

w subject flat to the complainant, but because of aforesaid force majeure

factors, the promoter was helpless in delivering possession of the

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subject flat to the complainant

161 It is futher argued that admittedly no agreement for sale

has been executed and registered by the parties. Therefore, the

complaint seeking relief under Section 18(1) of RERA, 2016 is not

maintainable. There is no mention of specified date of possession in

allotment letter. The respondent no.1 had never promised or committed

any date of possession to the complainant and therefore relief sought

by the appellant to refund the amount with interest is liable to be

rejected. It is fufther argued that Mr. Aakash Choksi (son of appellant)

was apprised by the respondent No.1 that the project is being

developed under S.R.A. Scheme and delay in completing the project is

due to reasons beyond the control of developer and the developer is

endeavouring to complete the project. The learned Adv. N4r. Bhupesh

Dhumatkar further submitted that the judgments relied upon by the

appellant are not applicable in the present case as the facts of those

cases are not same or similar to the facts of the present case.

L7) The learned Adv. I\4r. Dhumatkar sorely submitted that it is

not in dispute that the letter of allotment does not specify the date of

possession of the subject flat. In Mohit Melwani Vs, AA Estates

w ( Appeal No.AT006000000010873 of 2019) this Tribunal has hetd that

letter of allotment is silent on agreed or fixed date of handing over

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possession and therefore, letter of allotment would not assist the

appellant to substantiate his case regarding commltted date of

possession and therefore there is no violation of Section 18 of RERA,

2016.

181 The learned Adv. l,lr. Dhumatkar has submitted that

saleable area and super built-up area are same as per the definition of

RERA, 2016. The respondent no.1 has not misrepresented any

information to the appellant in regard to the area of the subject flat

and therefore, there is no violation of Section 12 of RERA on the part

of respondents. The Section 2(k) of RERA defines carpet area. RERA

also defines balcony or varanda area. Thus, it is crystal clear that

saleable area consists of carpet area plus balconies plus varanda plus

area occupied by walls and plus flower bed. On the contrary the carpet

area does not include any extra area as above. The appellant has

miserably failed to make out a case for invoklng Section 12 of RERA.

The appellant has not produced any material to show that he has

suffered any loss due to alleged misrepresentation by respondent no.1.

191 The learned Adv. Mr. Dhumatkar has further submitted that

respondents have denied that the appellant has paid Rs.90,00,000/-

and Rs.10,00,000/- ln cash to the respondent no.1. The appellant has

paid only Rs.1,62,35,000/- to respondent no.1. The respondent no.1

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took all possible efforts to execute and register agreement for sale in

compliance of order dated 24.9.2027 passed by the learned Authority,

but it is the appellant who was unwilling to pay balance consideration

and to pay necessary charges for execution and registration of

agreement for sale.

In the light of the above submissions, the learned Advocate

for respondent no.1 urged to uphold the impugned order and dismiss

instant appeal with cosG.

2Ol The respondent no.2 has fijed written submissions

contending therein that in 2013 the complainant had approached

respondent no.1 for booking of the subject flat. The respondent no.1

issued letter of allotment on 24.7.20!3 to the complainant. The

complainant has made payments to the respondent no.1. There is no

privity of contract between complainant and the respondent no.2. The

respondent no.2 is neither party to the transaction between the

complalnant and respondent no.1, nor signatory of the allotment letter.

Therefore, the claim of the complainant as alleged in the complaint is

against respondent no.1 with whom the complainant had entered into

letter of allotment and paid consideraUon amount.

w With these submissions, the respondent no.2 has prayed

to dismiss the appeal in limine.

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211 A perusal of pleadings in complaint and defence raised by

the promoter before the learned Authority and this Tribunal and

considering the grievances of the parties in the instant appeal,

following points arise for our consideration and we have recorded our

findings against each of them for reasons to follow -

POINTS FINDINGS

(1) Whether the respondents have failed

to deiiver possession of the subject flat

to the complainant without there being

situation beyond their control ? In the afflrmative

(2) Whether impugned order is sustainable

in law ? In the negative

(3) Whether order under challenge calls

for interference in this appeal ? In the affirmative

(4) What order ? As per final order

REASONS

221 On careful examination of pleadings of the parties, we find

that the respondents jointly took redevelopment of the building known

w as "The Nest". On 79.7.2073, the complainant booked

bearing No.8-502 in the project of respondents for consideration of

3 BHK flat

Rs.2,62,35,000/-. Pursuant to this the respondent no.1 issued

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allotment letter dated 247.2013 to the complainant. Admittedly, no

agreement for sale has been executed and registered by the parties till

date even though the complainant paid more than 20olo amount of total

consideration in the course of time. The letter of allotment is silent on

the specified date of possession. It is not in dispute that as a part of

process of registration of the project under RERA which came into force

on 1.5.2017, the respondents have declared original date of possession

as 31.3.2019. It is also not in dispute that the respondents have not

delivered possession of the subject flat to the complainant till date.

23'J After ensembling of broad factual account of events as

above, it appears that considering the averments made in the

complaint and reliefs sought therein, the Authority had a doddle task

in hand to consider only issue of delay in possession and decide

entitlement of the complainant/allottee in the light of provisions

primarily under Section 18 of RERA. However, it is seen that the

Authority has denied reliefs sought in the complaint only on the ground

that agreement for sale has not been executed behveen the parties

and letter of allotment does not disclose the date of possession and

w therefore, the provisions of Section 18 of RERA do not apply to entitle

the benefits envisaged thereunder. It is significant to note that both

Sections i.e. Section 4 of MOFA and Section 13 of RERA cast obligation

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on promoter to execute agreement for sale before receiving 20o/o and

100/o amount respectively of the total consideration amount. It is not in

dispute that at the time of booking of the subject flat, the complainant

had paid Rs.1,20,00,000/- to the respondent no.1 by cheque. There is

no material on record to show that the respondents have forwarded

draft agreement for sale with terms and conditions stipulated therein

to complainant for execution prior to filing of complaint. The

respondents have themselves failed to comply with their obligations

and now cannot take advantage of their own wrong to deny the

provisions under Section 18 of RERA in the absence of agreement

24) Section 4(1A) (ii) of I\4OFA provides that before accepting

advance payment or deposit more than 200/o of the sale price, lhe

promoter is liable to enter into written agreement for sale and mentlon

in it the date by which possession of the flat is to be handed over to

the allottee. Section 13(2) of RERA also casts similar obligation/liability

on the promoter. Therefore, we are of the view that promoter cannot

take advantage of lts own wrong. In fact, the respondents have

contravened the provisions of Section 4 of MOFA and Section 13 of

RERA.

251 It is not in dispute that there is no mention of date of

delivery of possession of subject flat in the allotment letter. In the

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absence of agreement executed by the parties, the date of possession

can be deciphered from any other document such as brochure,

pamphlet, email communications, letters etc. In Fortune

Infrastructure & Another Versus Trevor D'Lima & Others

(supra), the Hon'ble Apex Court has held that when no date of

possession is mentioned in the agreement, promoter is expected to

hand over possession within reasonable time and the time of three

years held to be reasonable time. The complainant has booked flat on

79,7,2013. The respondent no.1 issued allotment letter on 24.7.2013

to the complainant. Therefore, considering ratio and dictum laid down

by the Hon'ble Supreme Court the promoter was supposed to hand

over possession of the subject flat to the complainant by 24.7.20t6. It

is not in dispute that as a part of process of registration of the project

under RERA which came into effect on 7.5.20U, the respondents have

declared original date oF possession as 31.3.2019. It is also not in

dispute that the respondents have revised the date of completion of

project from 31.3.2019 to 31.3.2020 and again to 30.9.2021.

261 Admittedly, till date the promoter has not handed over

possession of subject flat to the complainant. The promoter has

mentioned various reasons in reply which caused delay in completing

the project. We are not able to accept the same for the reasons that

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the respondents from the day one were aware that completion of slum

projects are dependent on several factors as also illustrated by

respondent no.1 in its reply. It is known to respondents that the slum

projects accord first priority to the rehabilitation of the slum-dwellers

subject to which the permissions to undertake construction of the said

building for third party purchasers like allottee herein are granted by

Slum Rehabilitation Authority (S.R.A.) The Hon'ble Bombay High Court

in Neelkamal Realtors Suburban Pvt. Ltd. Vs. Union of India

(supra) held that being expert in the open market, the promoters

ought to have assessed the likely timelines for completing the project

and provided the possession date accordingly. This being no concern

of allottee, he cannot be held responsible or liable for any delay and to

suffer adverse consequences in case of delay. The respondent no.1 also

indicated Covid 19 as one of the reasons for delay which appears to be

farfetched considering that the respondents themselves declared on

MahaRERA portal the date of completion of project as 31.3.2019 which

was long over when the pandemic of Covid 19 broke out in 2020. We

therefore give no weightage to the delay, if any, caused due to above

factors. It is held by the Hon'bte Supreme Couft in Newtech

Promoters and Developers Pvt. Ltd Vs. State of UP that allottees

are entitled to reliefs under Section 18 of RERA, if the delay is not

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attributable to them.

271 For the forgoing observations, we have no hesitation in

arriving at the conclusion that the respondents had originally

committed to delivery of possession of the subject flat by 31.3.2019 as

declared on MahaRERA portal and later unilaterally revised the same

as 31.3.2020 and again to 30.9.2021. Therefore, there is clear delay in

delivering possession of the subject flat. This delay alone entiued

allottee to refund of his amount with interest under Sections g and 18

of MOFA and RERA respectively. Section 18 of RERA gives absolute right

to the allottee when promoter fails to hand over possession of the

apartment on the date agreed by him to either to continue in the

project and claim interest on payment till getting possession or

withdraw from the project to get refund of the amount paid with

interest. This right cannot be denied to the allottee merely because no

agreement for sale has been executed.

281 In the above premise, it is our considered view that the

complainant is entitled to refund of amount paid with interest as per

provisions of Section 18 of RERA on account of delay in possession.

291 In the result, the impugned order cannot be sustained in

w law and therefore, it calls for jnterference. We answer the points

accordingly and pass the following order

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ORDER
(i) Appeal No,AT006000000053461 is partly allowed.

(ii) Order dated 24th September 2021 passed by learned

lvlember-1, MahaRERA in Complaint

No.CC006000000 192332 is set aside.

(iii) The respondents are directed to refund entire amount

paid by the complainant with interest @ SBIt Highest

Marginal Cost of Lending rate plus 2olo (simple interest)

to allottee i.e. appellant w.e.f. dates of payments till

actual realization of the entire amount.

(iv) The respondents are further directed to pay costs of

Rs. 20,000/- to the appellant/allottee.

(v) Copy of this judgment be sent to the Authority and the

parties as per provisions of Section 44(4) of RERA, 2016.

-1^ /'^/ $fry

(s."s: ^^J
SAN (SHRI Aarq n. IAGTAP)

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