Complaint No.

CC006000000199005

CC006000000209632
BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY
AUTHORITY MUMBAI
Complaint No. CC006000000199005
Uday Harilal Joshi .... Complainant
Versus
M/s Om Mandar Realtors
Through its partner Raju Sulire .... Respondents

Complaint No. CC006000000209632

Rajendra Y. Jadhav .... Complainant
Versus
M/s Om Mandar Realtors
Through its partner Raju Sulire .... Respondents

MahaRERA Project Registration No. P99000011277

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

Ld. Adv. Hardik Joshi appeared for the complainants.
None appeared for the respondent.

ORDER
(Wednesday, 31st May, 2023)
(Through Video Conferencing)

1. The complainants above named have filed these two separate complaints
before the MahaRERA on 15-11-2021 and 07-01-2022 (respectively)
mainly seeking directions from the MahaRERA to the respondent to pay

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refund along with interest under the provisions of the Real Estate
(Regulation & Development) Act, 2016 (hereinafter referred to as
‘RERA’) in respect of booking of their flats nos. 605 -D Wing and 608 –
C Wing (respectively) in the respondent’s registered project known as
“OM MANDAR REALTORS” bearing MahaRERA registration No.
P99000011277 located at Vasai, Dist- Palghar.

2. These complaints were filed with respect to the same project and hence
the same were clubbed together and heard on several occasions and same
were heard finally on 09/02/2023 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, the complainants
appeared for the hearing and made their submissions. However, even
though the notice of the said hearing was duly served upon the
respondent, it remained absent. Hence, the MahaRERA heard the
submissions of the complainants and perused the available record.

3. After hearing the arguments of both the parties, the following Roznama
was recorded -
“The complainant is present. The respondent is absent for the 3 rd time.
In fact the respondent has neither filed a reply to the complaint nor
appeared before MahaRERA for hearing despite the last chance given in
the previous hearing dated 15-12-2022. The complainants have argued
their matter and contend that they seek refund with interest since the
date of possession was 29-04-2017 (in the complaint at Sr. No 23
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CC006000000199005) and 25-11-2021 (in the complaint at Sr. No. 24
CC006000000209632). Therefore, as the occupancy certificate for the
project has not yet been received, although the date of completion as
mentioned in the agreement for sale was 2014, therefore, the
complainants request for a refund along with interest and compensation
and also allege that these flats are likely sold to a third party.
The respondent is granted one week's time i.e till 16-02-2023 to file a
reply and written arguments in the complaint. Further one week's time
to till 23-02-2023 granted to the complainant to file rejoinder and
written arguments in the complaint. The matter is reserved for orders
suitably atter 23-02-2023 based on the arguments of the complainant as
well as reply, rejoinder and written arguments of both the sides. If the
respondent does not file any reply, the MahaRERA would be
constrained to decide the matter ex parte against the respondent on
merits.”

4. Pursuant to the aforesaid directions issued by the MahaRERA, the

complainants have filed their written arguments on record of
MahaRERA on 23/02/2023. However, despite specific direction the
respondent has not uploaded any reply to these complaints. Hence, the
MahaRERA perused the available record.

5. Submissions of the complainant at Sr No. 1:- He has purchased the said

flat from the respondent for total consideration of Rs. 25,07,000/-
(inclusive all other charges). Till date, he has paid an amount of Rs.
28,34,100/- to the respondent against the said flat as a full and final
consideration. Further, both the parties have executed registered
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agreement for sale dated 29/04/2017. As per the said agreement for sale,
he has paid an excess amount of Rs. 3,27,100/- to the respondent. Hence,
the respondent has agreed to refund the same to the complainant.
Further, the respondent offered possession letter to him on 29/04/2017.
The complainant further stated that the respondent has executed a
registered deed of rectification dated 10/08/2017 stating that there is a
typographical error in registered agreement for sale as flat no 605 – D
wing has mentioned wrongly instead of flat no 604 – D wing. By the said
deed the respondent confirmed sale and transfer of all rights, title and
interests of said flat in the said project in favour of the complainant.
Thereafter, he came to know that third party interest was created in the
said flat and hence the complainant took help of his advocate and made
a Title Search Report in the year 2021. As per search report, prior to
agreement for sale and rectification deed in 2017, the respondent had
already sold and transferred all rights, titles, and interest against the said
flat to one Mrs. Vidya Ganesh Jain by executing the registered agreement
for sale with her on 08/12/2014. Further, the respondent again sold and
transferred all rights, titles and interest against the said flat to one Mrs.
Fehmida Shaukat Shaikh vide registered agreement for sale dated
30.04.2015. This double registration reflects the malafide intention of
respondent to defraud him and its intention to derive benefit out of this
act. Hence, he has filed this complaint mainly seeking refund of the entire
money paid by him along with interest.

6. Submissions of the complainant at Sr No. 2:- He purchased the said flat

from the respondent for total consideration amount of Rs. 25,00,000/-

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(inclusive all other charges). The complainant paid entire amount for the
said flat as a full and final consideration. Further, both the parties have
executed the registered agreement for sale dated 15/04/2017. The
complainant approached the respondent and requested to complete the
construction work and handover the possession of the said flat, but the
respondent failed to handover the possession on time. Thereafter, on
25/11/2021, the respondent issued possession letter in respect of the said
flat to him. On 06/12/2021, complainant went to put their household
articles in the said flat and at that time he came to know that the lock put
by him was removed, and other person had put the lock on the door.
Upon inquiry with the office of Sub-Registrar and Title Search Report
dated 08/12/2021, he came to know that the said flat was already sold to
other person named M/s Morya Builder through its partner Satish
Kumar Yadav vide registered agreement for sale dated 15/04/2017.
Later, the said M/s Morya Builder, through their above-named partner
has executed the registered agreement for sale dated 16/01/2015 in
favour of one Kanchan Harishchandra Hankare and Prathamesh
Harishchandra Hankare and sold and transferred all rights, title and
interests of the said flat to them. This double sale of flat by the respondent
reflects the malafide intention of respondent to defraud him and the
intention to derive benefit out of this act. Hence, he has filed this
complaint seeking refund of the entire money paid by him along with
interest.

7. The complainants have filed their written arguments on the record of

MahaRERA as on 23-02-2023, which is mere repetition of what they have

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stated in their complaints.

8. In the present case, the MahaRERA has noticed that these complainants
have filed these online complaints before the MahaRERA on 15/11/2021
and 07/02/2022 respectively. However, till date the respondent has not
bothered to upload its reply to these complaints, though these
complaints were visible to the respondent in its project log in. Even as
per SOP dated 12-06-2020, the respondent was liable to upload its reply
in digital form in these complaints. However, till date the respondent
has not complied with the said direction. Furthermore, though the
notices for virtual hearings on 13-12-2021,15-12-2022 and 09-02-2023
respectively were served, the respondent failed to appear for the said
hearings. Further, on the last date of hearing held on 09-02-2023, one
week’s time is granted to it to file its reply / written submission on record
of MahaRERA. It shows that the respondent is not willing to contest these
complaints. Hence, the MahaRERA has no other alternative but to
proceed with the matter ex- parte against the respondent on merits.

9. The MahaRERA has examined the submissions made by the

complainants and has also perused the available record. In the present
case by filing these complaints, the complainants are mainly seeking
relief under section 18 of the RERA for refund of the money paid by them
along with interest mainly on two grounds:- i) on account of the delay in
handing over possession of their flats on the agreed date of possession
mentioned in the agreements for sale dated 29-04-2017 and 12-04-2017
(respectively) and ii) dual sale of their flats by the respondent thereby

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cheating and defrauding the complainants.

10. To support their contentions, the complainants have uploaded the

copies of the registered agreements for sale duly signed and executed
between by them and the respondent promoter. The complainants also
alleged that they have paid entire consideration amount of Rs.28,34,100/-
and Rs. 25,00,000/- respectively towards the consideration amount and
other charges to the respondent promoter.

11. As stated hereinabove, the said payments made by the complainants as

well as the claim of the complainants for not handing over possession of
their flats on the agreed date of possession mentioned in the agreements
for sale dated 29-04-2017 and 12-04-2017 remains unchallenged as the
respondent has not filed any reply or written submission challenging the
said documents.

12. Admittedly, there are registered agreements for sale signed and
executed between the complainants and the respondent dated 29-04-2017
and 12-04-2017 (respectively). According to clause no. 9 of the said
agreements for sale, the respondent has agreed to handover possession
of the said flat to the complainants on the date of execution of the said
agreements for sale i.e. dated 29-04-2017 and 12-04-2017. The respondent
although has handed over the possession letters to these complainants,
however, the said possession was not a complete possession in the eyes
of law as the same was without occupancy certificate. Even, till date the
respondent has failed to obtained OC. Admittedly, on the said agreed
dates of possession, the respondent has not handed over possession of

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the said flats to the complainants. Hence, the MahaRERA is of the view
that the respondent promoter has violated the provisions of section 18 of
the RERA.

13. In this regard, before dealing with this complaint on merits, it is pertinent
to peruse the relevant provision of section 18 of the RERA, which reads
as under:-
“18. (1) If the promoter fails to complete or is unable to give possession
of an apartment, plot or building,—
(a)in accordance with the terms of the agreement for sale or, as the case
may be, duly completed by the date specified therein; or
(b) due to discontinuance of his business as a developer on account of
suspension or revocation of the registration under this Act or for any
other reason, he shall be liable on demand to the allottees, in case the
allottee wishes to withdraw from the project, without prejudice to any
other remedy available, to return the amount received by him in respect
of that apartment, plot, building, as the case may be, with interest at
such rate as may be prescribed in this behalf including compensation in
the manner as provided under this Act:
Provided that where an allottee does not intend to withdraw from the
project, he shall be paid, by the promoter, interest for every month of
delay, till the handing over of the possession, at such rate as may be
prescribed.”

14. On bare perusal of provision of section 18 of RERA, it clearly shows that

if the promoter fails to handover possession as per the terms of the
agreement for sale by the specified date therein, the allottee has a choice

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either to withdraw from the said project or stay with the project. Further,
if the allottee chooses not to withdraw from the project, the allottee is
entitled to seek interest for the delayed possession. Likewise, the
complainants in this case seek to withdraw from the project and to have
refund along with interest for the delayed possession under section 18 of
the RERA.

15. The respondent promoter has not cited any sufficient reasons of delay in
handing over possession of the said flats to the complainants on the
agreed date of possession mentioned in the said agreement for sale dated
29-04-2017, 12-04-2017 and 14-09-2016. Hence, the complainants are
entitled to seek refund along with interest under section 18 of the RERA.

16. In addition to this, the complainants have also pleaded other ground of
dual sale by the respondent to seek refund along with interest. In this
regard, the MahaRERA has noticed that as per the search report dated 9-
10-2021 and 18-12-2021 (respectively) submitted by the complainants
along with the supportive documents, the respondent has done triple
sale of the same flat allotted to the complainants. The flat No. D-604
allotted to the complainant at Sr No. 1, was already sold to one Mrs.
Vidya Jain vide registered agreement for sale dated 8-12-2014 and
thereafter vide registered agreement for sale dated 30-04-2015 it was
again sold to one Mrs. Fehmida Shaukat Shaikh. Despite this, the
respondent has sold the said flat to the said complainant vide a registered
agreement for sale dated 29-04-2017. Further, in complaint at Sr No. 2,
the flat No. 608-C allotted to the complainant was already sold out to one

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Mr. Satish Yadav vide registered agreement for sale dated 30-04-2014 and
thereafter vide registered agreement for sale dated 16-01-2015, the same
was again sold to Mrs. Kanchan Hankare and Mr. Prathamesh Hankare.
Thereafter, vide registered agreement for sale dated 12-04-2017, the same
was sold to the said complainant and again vide a registered agreement
for sale dated 15-01-2018 the said flat has been sold to one Mrs. Meena
Thomas. The complainants have submitted the relevant pages of the
above-mentioned agreements for sale signed with respect to their flats
along with the title search report issued by the advocate. All these
documents remain unchallenged as no reply has been filed by the
respondent. Such conduct of the respondent promoter is uncalled for and
amounts to fraudulent practice and requires proper investigation by the
concerned police authorities.

17. Moreover, such action also amounts to misrepresentation as the flats

which were already sold to other allottees have again been sold to these
complainants. Such action on the part of the respondent also amounts to
violation of section 12 of the RERA and on this ground also, the
complainants are also entitled to seek refund along with interest.

18. In addition to this in the present case, the MahaRERA has also noticed
that the project validity period has also lapsed on 30-06-2022 and the
respondent till date has neither uploaded the Architect Certificate Form-
4 or completion certificate. It shows that the project is still incomplete and
the respondent has not sought extension in the project within the
stipulated time period.

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19. In view of the aforesaid facts, the following order is passed:
a) The present complaints are hereby allowed.
b) The respondent is directed to refund the entire money paid by the
complainants towards the consideration of their respective flats along
with interest at the rate of SBI’s Highest Marginal Cost Lending Rate
(MCLR) 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, from the date of payment till the actual realisation
of the said money to the complainants.
c) Needless to state here that the actual amount as provided under
section 18 of the RERA means the amounts paid by the complainants
towards the consideration of the said flats only, excluding the stamp
duty, registration charges and taxes etc., paid to the government.
d) However, in view of the mitigating circumstances beyond the control
of the respondent promoter and also to ensure that the said project is
not jeopardised due to the outflow of finances and is completed
keeping in mind the interest of the other buyers of the said project at
large, the amount of refund along with interest payable by the
respondent to the complainants be paid within a period of 3 months in
three equal instalments.
e) 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 and the Notification/ Order which may
be issued in this regard from time to time

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f) Further, the respondent is also directed to take immediate steps for
seeking extension of the said project within 30 days from the date of
this order failing which the respondent shall be liable to pay penalty
under section 63 of the RERA if such default is brought to the notice of
the MahaRERA.
g) The complainants may take up this issue of dual sale by the
respondent in this project with the concerned police authority
for investigation of fraud committed by the respondent.

20. With the above directions, both these complaints stand disposed of.

(Mahesh Pathak)
Member – 1/MahaRERA

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