- INTRODUCTION
Through a common order1 passed in 2 (Two) separate appeals filed by Naresh Joshi and Sarang Joshi ("Complainants") against Nahar Homes LLP ("Promoter"), the Hon'ble Maharashtra Real Estate Appellate Tribunal ("MREAT") held that Section 18 of the Real Estate (Regulation and Development) Act, 2016 ("Act") does not explicitly limit changing of prayers from seeking possession of premises to refund of monies, if due process of law is followed. Further, the MREAT directed the Promoter to refund the paid amounts including taxes to Complainants within 45 (Forty Five) days with interest.
- BACKGROUND
The Complainants had executed registered sale agreements dated March 31, 2015 ("Agreements") for booking 2 (Two) flats bearing numbers 703 and 803 ("Flats") in B1-Building, "F- Residences" at Haveli, Pune ("Project"). A housing loan was provided by Indiabulls Housing Finance Limited under 10:80:10 subvention scheme2 by executing tripartite agreement with the respective Complainants and the Promoter ("Tripartite Agreements"), wherein the Promoter agreed to pay pre-EMI interest till the handing over of the possession of the Flats to the Complainants.
Aggrieved by delay in handing over timely possession along with an occupation certificate ("OC") and the default in payment of the pre EMI by the Promoter, the Complainants filed complaints before the Maharashtra Real Estate Regulatory Authority ("MahaRERA") on October 31, 2019, seeking various reliefs including a direction to the Promoter to comply with the terms and conditions of the Tripartite Agreement, handing over the possession of the Flats along with parking and OC as well as for compensation for delay in providing possession of the Flats. The relief sought was later amended to refund of monies with interest instead of the aforementioned reliefs.
The Adjudicating Officer ("AO") through 2 (Two) separate orders dated April 03, 2019, allowed the Complainants to withdraw from the Project and directed the Promoter to refund the amounts paid by each of the Complainants along with an interest calculated at the rate of10.75% (Ten point Seven Five percent) from October 15, 2018, together with costs subject to certain conditions stipulated in the said orders. These orders were subsequently rectified by the AO vide 2 (Two) separate orders dated May 03, 2019, to include refund of the relevant taxes paid by the Complainants. Aggrieved by these orders, the Complainants preferred 2 (Two) separate appeals3 before the Hon'ble MREAT which were disposed of by the Hon'ble MREAT through 2 (Two) separate orders dated February 15, 2020 and the complaints were remanded back to MahaRERA to decide afresh.
The Chairperson of the MahaRERA ("Authority") disposed of the complaints through an order passed in May 2021 ("Impugned Order") observing that the Complainants cannot amend the reliefs sought at such a belated stage to withdraw and seek refund of monies from the Promoter and that the withdrawal from the Project shall be guided by the terms and conditions of the respective Agreements and concluding that if Complainants intended to continue in the same Project, then the Promoter was directed to handover possession of the Flats at the earliest. Aggrieved by the Impugned Order, the Complainants filed appeals before Hon'ble MREAT ("MREAT Appeals") inter alia on the following grounds:
(a) The Promoter committed serious actions and omissions, while carrying out construction of the Project. Hence the OC was denied by the local authority through an order dated August 13, 2018.
(b) Acting on the advice of MahaRERA, the Complainants chose to modify the reliefs inter alia seeking withdrawal from the Project and not possession of the said Flats and had accordingly filed handwritten applications dated November 22, 2018 for refund and other reliefs as mentioned in appeals. The Authority failed to appreciate that amendment applications for withdrawal from the Project were allowed vide order dated January 25, 2019 including refund of paid amounts together with interest from October 15, 2018 by AO vide its order dated April 03, 2019.
(c) The Promoter had accepted the amended reliefs since the Promoter did not file any appeal/review/revision against such order dated April 03, 2019 and had neither raised issue of amendment of prayer in their written reply/ submissions.
(d) The Authority had erred in observing that the Promoter had completed the construction of the Flats within the timeline mentioned under clause 11 of the Agreements, which stipulated delivery of possession of Flats by March 31, 2018, whereas the OC was provided to the Complainants only on January 31, 2019.
The Promoter contested the MREAT Appeals on the below mentioned grounds amongst others:
(a) The Promoter had to take steps to mitigate factors for timely project completion including by filing of Writ Petition before the Hon'ble High Court. Therefore, there was no delay on the part of the Promoter.
(b) Despite factors not attributable to the Promoter, the OC was provided on January 31, 2019, even though the Promoter had applied for the same on April 18, 2018.
(c) The Complainants were at default and had not taken possession of the Flats even after the receipt of the OC.
(d) The Promoter was entitled to deduct 10% (Ten percent) of the value of the Agreements in addition to the interest already paid by the Promoter besides the cost of registration of the Agreements and stamp duties, as per the Agreements.
Footnotes
1 Order dated 16th December 2022 in Appeal No. APPEAL NO. AT006000000053252 and AT006000000053263
2 10:80:10 scheme is where the purchaser has to pay up only 10% (Ten percent) of the sale consideration upfront for booking the unit, 80% (Eighty percent) of the sale consideration will be paid through a bank loan during the period of construction and the final 10% (Ten percent) of the sale consideration will be paid after getting possession of the unit by the purchaser
3 Appeal no. AT- 005000000031587 and AT- 005000000031588
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