3)

BEFORIi THE MAHARASHTRA

REAL ESTATE REGULATORY AUTHORITY, MUMBAI

Virtual Hearing held through video conlerence i$ per '

MahaRERA Circular No.:27 /2420

COMPLAINT NOr CC00600m00023946

NARENDRA RAMCHAND OCHANI ...COMPLAINANT/S

VS

!'EENA REALCON PVT. LTD. ...RESPONDENTS

MAHARXRA PROJECT REGISTRATION NO. Pll8UXn0016

Ord.r
Apnl26,20D-
(Datc ofheaing - - nattet
L1.01.2022 was reseroed fur ordet)

Coru: Shri. Aioy Meht., Ch.irP€Bott MahaRERA

Advocate Ramdayal for the ComPlainant
Advocate Omta! Kulkami for thc Respondcntr

1. The Complainant is a home buyer a.nd Allottee witiin the m€anl'nt of Sectton 2

(d) oI the Real Estate (Regulation and DeveloPment) Act, 2016 (heleirBfter
refurred to as the "r.td Act") oI Real Btate Regulatory Authotity (he!'inalter
referred to as the "RIRA') and tlte Respondent is the Promoter/Developer

within the meariing of Section 2 (zk) of the said Act The ResPondent is a
registered a! the ltomoter of the Ptorect namely "VEENA SERENIfi" under
No'
section 5 ol the said Act bearing MAHARERA Proiect Rcglrtletlon
P51800000Or6 (hereinafter referred to as the "said Proiect") On the MahaRERA
is
Proiect legbrration webpage the proposed .omPletion date of the said Project
mentioned as 01.12.2020 and the teviE€d comPletion date ls mendoned
aa

07.72.202-1.

Thc Compbinant t! lecklng the follow{ng reliefe:

to dit'ct the ResPondtnt to hand q'Er posse$iofl
"a. This Hort'bh Autllority be Phaj,jd
of thc said Flat lo tfu ArnPlainants.

PaSe 1 of 10
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 32.

O;^!::.!:::r: Authority be_ preaseit to dtrect thz Respondent to

reinburse the
\-ompuuanb for a sum of Rs.10.69 749y'
Conrylcin nE ov.r and abott 24 monthi ?2, pry^r"i oy prr_iii pii'ty ,n"
thc Agrcqrcnthr satz, and
Iutthet @ntinue to pau thz same ,bn::,":i"'81":d"r
',|y\t;aavtiaw';;tr^;tr*:;'F,1#'{"#"*,T;#';# jf
otYt oJ posscssion. ;:k;
cThis.Hon'bh A,uttuity be plea*d to direct thc
Respondent to d.nafld the batnnce sare
ynsiderudon o1.ly y;po! qung trrrsession @upted ioith the occapatior' iiA*t,
,:W-":yXi*: A.ictuding car pa*ing as per Ctause t3 of thc Agrieme"i
ona
a. t fis non'btc Authoity be pleased to pass such iAZ^")
furthcr ind otlir ditectiins fur tfu
t'
benefit of the Complainants as it deems
fiin tW i"i*"to11"rtin o";;;;;.':
The follorying roznama as passed by this Authority
on 11.01.2022:
"The Pmties are present.

Thc-a_gr_eelnent
Ior sala uas signed on 23.03.2075, tle date ofpoes?ssion uas pronised as
22.09.2017. Total consideration Rs. 7.59 oores, ,;;;i';;id ;;.';;;,."*s. ,w
Conplainant subrnits that Ws*ssion uas dcldyea W"r, n"
trlri'rp]"rrt
unvftin by otdcr dnted.23.05,2018 tht Rzspondznt was ditected to gioe "i
tiariIf.a
possession a,ith
int rest. This o lcr was du znged bx tfu Conplainant belore the rtoiile U"i"iU f.
!y, Yttt" M^I4REAT ..t' atidi th. ord.r and rernand.d th, natte? back to
tyt!a!l\!.-!1cc agaii ctsttuhib euirperun MahaRERA prrrri iiitirii _*,
daled 25.09,2079 Wfiitting the Complainant to nou s?ek reti;f in ter7,s of eiting the
Prcject togeth.r uith interest. The Conplainaht subnits thaiin oiea, of'thz dziy hz
changed his pha ltom secking intaftst on dclayeil possBsr,n to nou saehnc eif togethzr
with intcftst atd ompensation, Thc matir ttad. bcen bans{efted bv"tlu crsia&ile
Chairp.ron, MallaREP,A to tlL Adjudication Offet MahaRtRA, Hoianr, in oirto of
tlu Suptrrc aui
ordzrs the maitet ww wititdrawa Jrcm thz Adjudicain Offczi,
MahaREM ald amc up beloft the Authority.

The
_R.spontent tuhrnilg th4t this is a MHADA redroetoprnent projat and h. had.
applied for OC on 17,01.2018 to MCCM, Houeoer, in ;ieu oi a dispute betueen
MHADA qnd MCGM qs to toho is the Planning Authoity thc proc€i of OC u'as
delcyed. Tl^e ResVondent further subfiits that this dispute canrct be attributed to him
and this delay shotklbe ondoaed. T'lu Respondznt then receioedpa OC on 12.10.201A
and. /ull OC on 05,04,2027. H.
furthcr stb its that h. hed. eoen;ffeftdft otat possdsion
on 26.03,2018 subj.ct to paJnent of bal"an c consideratio of RS,7S,OO,OOO/- together
with inL7est plus otllzt clurges, Thc Respondent submik thrt thc safie was not piid.

Both Parties atu at libe*y to subnit uitEn s:ab'7lission, if any by 18.07,2022, The
fidtter is hcatd and shall be ftsetuedfor otd afer 1B,01,2m2.',

4. Before moving ahead, it is petinent to note that the complaint was remanded
back by the Horible MaharashEa Real Estate Appellate Tlibunal
("MahaREAT") vide it8 order dated 28.01.2019 read rvith the review orde! dated

PaSe 2 of 10

hn)u
 04.02.2019 in appeal No. 0006000000010493. Therealter the complaint
was heard
a&esh by the erstwhile Chailperso& MahaRERA and on 25.09.2019
an intedm
order was passed whelein the erstwhile Chairperson allowed the change
in the
ldiefs sought by the Complainant i.e. to withdlaw from the said prcject under
tlE provisioru of section 18(1) of the said Act. Hence the Complainant is now
desirous of with&awing flom the said proiect and seeking refund of the
anounts paid along with interest (heleirafter referred to ae the said ,,new
rdidrJ.

5. The brief Iacts of the captioned cornplalnt thrt are relevmt in tlnir of the said
n€w felie& sought are as follows:
a. The compl,aint was filed by the Complainant on 30.03.201g.
b. A fht No. 14&) on th. 14di Ooor C Wlng wae puchaaed by thc Comphlnant
vide an agre€ment Iot eale dated 22,t3.2075 (hereinafter referred to as ,,the
said apartment' and "the Baid agreernent" respectively) in the said Ploiect
for a total consideration, I Rs.1,58,75,000/-.
The Complainant had opted for a subvention scheme of 10i80:10 provided
under the said agreement.
d- The poosession of the said aparhnent was to be given within 30 tnonths of the
date of the said agr{€ment i.e. 22.@.2A77 .

e- The CompLainant had applied for a loan of Re.13O00,000/- from DHFL

(Deeuaa Housittg Financc Co. Ltd.\ ttow ktrown as Piramal Capital & Howing
Flrurrce Ltd. undcr thc cubvendon t.hcme whcreby thc Relpondent! w€re
liable to pay the preEMI till the handover of posseasion for the said
aParknent.
f. The C@rphirunt waa offered 6t-out posse$ion on 25.00.2018 i.e. Irogge8sion
without occupation certidcate (OC) by the R$pondents.
g. Further the Respondents stopped paying pre-EMIs fuom 26.07.2077 thereby
burdedng the CompLainant to pay the pre-EMIs to DFIFL since theleaJter,
h. The Complatnant h6s tiu8, now Eought to }4,tthdraw hom the lald Ptdect and
seek refund of the amount Paid together with interest and comPensation.

Pate 3 of l0 \n"
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The following submbsions oI the Respondent televant for the complaint a.re
noted aB {ollows:
a. That the said Proiect was developed on the property which belonged to
MHADA (Mahansh*a Housing and. Area Deoelopnent Arthoity) a:;rd, NCE. lor
redeyelopmmt was obtained from MHADA on 17.06.2014.
b. That tlrc building was ccmplete and ready in all aspects in January 2018 and
an application for obtaining OC was also filed. However, there was a djspute
betwEen MHADA and :]li,CGM (nlunicipal Caryotution of cftatd M,:mbai) ad to
who shall issue the approvals as the Planning Authority and only after 12-18
months later vide a notification dated 23.05.2018 the said issue was clarified
drat MHADA slEll b€ the Planning Authority and Bhall i$ue permissions /
approvals.
c. That the delay on account of the aloresaid dispute between MHADA ar(d
MCGM was beyond the conEol oI the R6pondents and the OC for the
building wac delayed.
d. That on .03.2018 the Respondenc offered the said apaltment for lit out
poosession and had also demanded Rs.15,61,785/- as per the said agreement.

In thia regard it is also subrnitted that the 16s sLab was completed in
Sbptember 2017 itsef and the Atchitect has gubmitted the completion
ceitilicate confirrning tlle same.
Further wtt}! regard to paying the pre-EMIr, the Respondent lubrnlts that aB

per the tripartite loan agreement under the subvention gcheme it was cleady
stated that the Respondents agrees to Pay Pre-EMI for a period of 24 months
or intLnation oI fit outs whichever is earlier. A lette! dated 25.05 2017 was

addrcss€d in this legard to the Complainant stating that the liability to Pay
pre.EMIs will be ending on .07.207i.
Furthet, part @ up to the 12tl' floo! wag teceived by the ResPondenb on
12.10.2018 and the ftrll OC for the said Ploiect was received on 05.01.2021.

PaSe 4 of 10 h'utr
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7. From the above facts and submissions, the only issue that lequtes colaidetation
is lNhctlEt the CompLainant is allowed to withdraw
ftom tfu soid project and claiil
refund. of tfu afiwnts Wid togethct with interest and conpensation, if an!.?

In this regard, it is pertinent to examine ,,possession,, as contemplated unde!

section 18 of the said Act
"78.
.(7) Y
tlu ptonoter lails to compl2te or i unable to give possession of atl
apsrtnu , plot ot hiuing, -
(a) acurdone uith thc bnns of the aoreqnefit fot sa.le or, as thz use may be,
.in
duly cottpleud. W th. date spcctfi.tl thqcln: or
A) due to ditcoitinuancz olhis busittess as a dtoelopet ot acautt of suspension
or tooation of the rcgicbation undrt thk Act or lor any othaf taaron,
he clull be lidh ot dcnant to th. albttert, ln car, thc e ott c wt tu. to wlthd4a.)
ftorn the orclerL witltout prejudie b any oth.r rcmedy aoailabb, to rctun thc
arnotnt r.t2|oc., b! hlm in respect of that apa mai, plot, buildiag as tlu case ,niy
be, wlth lntcr.st et sach ratc as ,nau bc pr$oibeil tn thls behalf lncfuiline
@@BUin th. manner as gwidtd uadq this Act:

Prooided, tlut whzre on albtt

e does not ifltet1d. to uithdtuw t'ron the project, he shall
be patd,by tle pronoter, intefist hr eoery nonth of dzlay, till the h.anding ooet of thz
posges9ion, at such ratc as mty be prescribed."

From the plain t€adtng oI secdon 18 lt b ve?y cleAt that lI th. Plohotet
(RespondenB lareinl fails to handover possession as per the terms of the
agteement 6ot sale by the specilied date therein, the Allotee (Cotzpioinant lereifi)
has a choice eithe! to withdtaw from the said Proiect or stay with the Project. In
the present case the Allotee (CompLainant hzrein) has revised his choice and now
chooa$ to withdtaw &om the said Proiect and thus is entided to clatn interest
including cohperuatlon from the Ptomot t (R sPofidente harctn) .t .uch late aB
may be prescribed.

10. Fiom the submiasiolrs of the Respondents, it is clear that tiere ib a delay on pat
of the R6pondents wlth regard to the handover of possession as Per the said
agreement date i.e. b y 209.2077 (withia 30 nonths fron tht dste of said agreemmt).
This date of poss€ssion is not disPuted by the ResPondents,

\Xn}
Page 5 of 10
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11. Further, the Complainant has changed his reliefs which has been allowed
by the
erstwhile ChairlNrson, MahaRERA and the same has not been challenged by the
Respondenb in appeal hence this Authority shall go ahead with the said new
leliefs eou8iht by the Complainant helein. The Complainant vide hia new reliefs
has now sought to with&aw from the eaid proiect on account of non<ompletion
of the said hoiect and is not willing to wait any furthe!.

72. While peruaing thp submisetons / rcpliec of thc Re6pondent! Btating the rearonr
for delay in obtaining the full OC for the said proiect few dates become
noteworthy. As per the Respondents the building was completely rcady in
January 2018 its€lf and that they had applied for OC in January 2018 only,
Further, the Respondmts offered the said apartment for {it out possession on
26,03.2078, the same is corrfirmed by the Complainant ag well. A notiJication
dated 23.05.2018 cladfying that the approvala / permissiona were to be given by
MHADA as the Plannint Authority was issued. That part OC Io! the said Proiect
was issued on L210.2018 after the aforesaid not'ification and that the fulI OC for
the said Project wa3 only obtained on 05.04.2021. It b also peltinent to note that
all these dates are submitted by the Respondents to seek condonation for delay.
As far as the isgue oI diepute between MHADA and MCGM b concemed the
sa'ne was dali.ffed on 23.05.2018, hence the delay for compl€tion of the said
Proiect cannot be atEibuted Elairdy to this dispute as submitted by *€
R$pondents aa lit out poss€slion was offered only on 26.03.2018 whereas the
completion date with OC was 22.09.2O77 as per the said agreement, It is also
observed that offerhg possession for Iit out i.e. without OC is nowhere Provided
undet the said Act, henc€ the same cannot be accepted that the Possession lor
the said apartment was given by the RerPondcnts in Match 2m8 itreu, In this
regard it is pertinent to note the section 19(10) of the Eaid Act clearly plovides
that the Allottee (Cornptsinant hereifl\ car. take Physical Po$ession of the
aparEnent within 2 months of obtalnlng OC issued lor the said aPatbnent which
means that possession can be oflered or taken only upon receipt oI OC for the
said apartment onty. The lelevant portion of section 19 is leProduced hereunder:

PaSe 5 of 10 \s

I
 "79 - Rlghtt ond dud.s ol allottees:
(70) Eoery allottce shall take phusical possession of the doa . plot or building
as lhe crse mqy fu, within a oeiod oLtu)o rnonths of the occllraflat cetilicote
issued,for the saiil atqtt ent, plot or htilding, as the wse may be."

It is only the OC as issued by the Planning Autholity tiat signifies the

completion of the Project both flom the point of view of complete regulatory
compliances and being fit for hurEn habitation.

13. Furthet there is a gap of about 2.5 years ftom part OC to full oc stage of the said

Project fo! which reagons are not clearly stated. Howevet, the provleions oI
section 18 of the said Act are clear that iI the ResPondents laile to handover
pogsession by the sPecilied date i,e. 22.09.2012 they are liable to Pay intelest to

the Allottee (brnpbhmt l:arcin) and this provision does not Plovide lot any
waiver or disclaimet or excePtion or force majeure event haPPenin8. It is an
abgohte provision. Reasons for delay, if any can be grounds for considelation
wlth r€gud to !€eklng extelulon oI th€ comPletlon datc bclole MThARERA for
the said Proiect and n61 sr'1qrwise.

With retad to the delay in handing ove! Possession as Pe! the said agreement
came into effect
i.e. by i{.:09.i{,77,'rl is Pertinent to note that on 01 05 2017 RERA

and it is observed that on this date the said agreement with its covenants binding
between the CgmPlaimnt and the ResPondents was in exiEtence' With this
binding cotrttact the PardeB had now rtePPed lnto thc eta of RERA' Now at
thlt
as an instrument to oPen uP end
iunctule none of the Parties can u,se RERA
lewrite conkact! which by eithet omission or commission had come into effect
beyond what
pre-RERA, Also, the Palties cannot now us€ the said Act to travel
was agreed to This Authority cannot re-wdte a contract which was
Pre-RERA.
was enteled
executed before the conrmencernent of MahaRERA and that which
into b.t!r'!.n the Pud.r wlth comPtctc awllanclt' Th' tdd A't dor! not
the
mvisage that the contracts / agre€ments mtered into by the Partiee Prio! to
been re-written as per
commencement of MahaRERA shall be deemed to have
be drawn uP'
the said A.t noi does the said Act etrvfuage frcsh contracts

Pa8e 7 of 10 01"9
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 A!

15. Thus, faom the above obsewations, it is clear that there was delay in handove!
of possession of the said apartment and thus as pet the said new reliefs sought
by the C-omplainant., he i8 entitled to claim refulrd of the principal amounts paid
by him towards the said apalknent along with interest from 29.@.2077 rill
M.04.20A (full OC obtaiwdfor tle said Projec| and that the said agreement be also
dnly cancelled by the ResDondents. It is pertinent also to note that the interest
shaU be paid fuom 23.@,20ir7 6 M.04,2027 by the Rerpondents hetein to the

Complainant and not from the date of payment/ deposit because the Allotee
(Compbinant hcreinl had eatlier decided to s(ay in the said Proiect despite the
delay ar.d it is only srb8equently the Allotee (Cornplainanthtvin) dccided to exit.
Hence, this Authodty carurot make withdlawal mote luctative than continuing
with the Ploiect and thereby ieopardtue the rights of Allottees who have chosen
to gtay in the said Project. In view of the above the answe! to the issue at pala
No.7 hqeinabove is answered in rffirmative.

FurtlEr, lt b aloo ob.erved tlut the Complailrant has sought a houBing loan frorn
DHFL wherein a tripattite loan aSre€ment was enteled into between the
Complainant R$pondents and DHFL whetein as Pet clause 5, the pre'EMIs
wele to be pald lor a peliod of 24 montlE by the ResPondents on behall of the
Complainant. In this legard it is pertinent to note that t}Ie modalities of the
refurd of the principal amo$t togethe! with interest shall be governed by the
hipartite loan ag€ement betw€en the.Complainant, ReBpondents and DHFL.
The mcdalities should be wolked out i'l a malner that would not Put llte
Complainant to any further disttese. The Reepondents and DHFL must keeP in
mind that a g€nuine home buyer (Complainant hzrein) has been entangled in a

web of loan defaults and financial gkess squarely because of the ResPondents
(Prornotct) did not plan and execute the said Project diligendy. FurtlEr DHFL
should have ex€lcisd due caution and conducted such prudence checks to
evaluate the rbk3 in the said Project belore advancing monies. A financial

ilstitution / comPaty by its very nature of business has the resoulces to foresee

Pa8.8of10 Wd\-

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 Jtl

lisks in a ptoiect that a common home buyer (Alioftee) may not envisage. Thus,
the Complainant shall carry out the resporsibility of closing the aJoresaid
housing / mortgage loan and obtain the NOC from DHFL for releasing the said
aparknent ftom the mortgage created so that it is free flom any encumbrances
so that the Respondents can sell the eame to any prospecHve buyer/s, The parties

herein i.e. the Complainan! Respondents and DHFL shall be lesponsible and
liable as per the t€rmr of the tripaftite loan agreement and this Authority shall
re&ain ftom interfering with the termr of the same and it iB also peltinent to note
thlt thb Authorfty cqnnot be made to re.wrlte a conhact whlch wa! executed
between the Parties with complete awareness especially in tl-te pre-RERA era.
The Respondents shall offer all assistance to the Complainant to ensrue closure
of the said tripsrtite loan agreement.

Further, with regard to the pafment of intelest to the Complainant it is furthe!

dltcctad tlft thc Ropondcntr Ptomot r. erc cndded to clrtdr tlr. bcndtt of
"moratorium period! as mmtioned in the Notifications / Orders Nos, 13, 14 ard
21 dated 2ld April, 2020, 18h May, 2020 and 06s Augus! 2021 respectively issued

by the MahaRBRA. The moratolium period shall be deducted Jlom the total
perlod for which intele8t is payable.

FINAL ORDER

Thus, the pr€sent complaint is allowed and the following order is passed:

a. The Compl,atEnt is entided to refund of the amounts paid by him along -with
interest from 23.Gr.m17 dll 0tl0tl2021 at the rate aB prescribed u ndd Rule 78 of thc

Maharrshtro R al Est,;tt (Regulation and Dcoehpwnt) (Registration of Real Estate

Projects, Rcgistratioa of Rral Estate Ageflts, Rate of Interest and Di^dosurcs on website)
R!,bs 2077 rntBec., b deductiotu of molatortum Pslod a! mentioned in Pala No.17
hetelnabove drd allo subrect to the closure ol the trtpardt€ loan r8rlcm.nt a!
mentioned in Pota No. 15 hereinabove The amounts of refund and ttre interest
thereupon shall be paid by the ResPondents to the Complainant in six (6) equal

Page 9 of 10
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montNy instalments starting from O1^.O7 .2022. Month.ly instalments have been
allowed to the Respondents aE the Complainant has changed the reliels flom just
interest fo. dday to rcfund with interest midway during
the pendency of the
complaint This is to ensule .esale of the apa.rknent to a new prospective
buyer.
However, it is further dilected that in case the said aparknent
is r$old to any new
prGpecdve buyer durtng the cours€ of refund, then the
lepayrnent of all the
balance monies as afopsaia snaU Ue paa in one instalment
within 30 days from the
execution of the resali agreement for the said aparhnent.

Needless to say, that both the Respondents and DHFL shall

endeavour in every
way to ensurc an amicable closure of the hipartite loan agreement, and the
Complainant shodd co-opetate so that the eaid apaltment be lele6sed flom
the
moltgate / charge to enable the Respondents to sell it furthe!.

c. No order as to cost.

il-il-
,*{, Mehta)
Chairperson, MahaRERA
Ccrlified Cepy

applica(an p€senlod on- ..? l.o.,r..L>o.rz-

Cornpilld by and on.

Copy rcray 0n.,.,..,........,.I l,zp.x--

lssucd br and 0n..,..,.. 7..,,....,,,....,,:

Page 10 of 10

&dg{|rri4..L*rl&ri4r!r., qIBl&A.r rir r 11