BEFORE THE MAHARASHTRA

REAL ESTATE REGULATORY AUTHORITY, MUMBAI

Virtual Hearing held through video conference as per
MahaRERA Circular No.: 27/2020

COMPLAINT NO. CC005000000053899

PRABHJOT SINGH BHATIA …COMPLAINANT
VS

1. KUL DEVELOPERS PVT.LTD.

2. ASHDAN DEVELOPERS PVT.LTD. …RESPONDENT/S

MAHARERA PROJECT REGISTRATION NO. P52100007401

Order
June 13, 2024
(Date of hearing – 20.02.2024 – matter was reserved for order)

Coram: Shri. Ajoy Mehta, Chairperson, MahaRERA

Advocate Nilesh Borate for the Complainant
Advocate Radhikesh V Uttarwar present for the Respondent

1. The Complainant is a home buyer and an Allottee within the meaning of Section 2(d)
of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as
the “said Act”) of Real Estate Regulatory Authority (hereinafter referred to as the
“RERA”) and the Respondents are the Promoters within the meaning of Section 2
(zk) of the said Act who has registered the Project namely “Vtp Cygnus- Nation R1-
Tower 9” under section 5 of the said Act bearing MAHARERA Project Registration
No. P52100007401 (hereinafter referred to as the “said Project”).

2. On the MahaRERA Project registration webpage the proposed date of completion is

24.08.2020 and the revised date of completion is 18.07.2025. The said Project has not
received Occupation Certificate (OC).

3. The Complainant is seeking the following amended reliefs:

“a) The Respondents be directed to give possession of the said unit/flat forthwith to the
Complainant and that the Respondents be directed to pay the delayed interest from the
date of agreed possession till the date of actual possession with interest to the Complainant.

Page 1 of 8
b) The Respondent may kindly be order to pay the Complainants the House Rent/Leave and
License amount and the Home Loan Interest paid by the Complainants.
c) The Complainants requests the MahaRERA Authority to impose penalty on the
promoter for contravention the provision of RERA Act and Rules and be held responsible for
indulging in an unfair practice.
e) The claim for compensation may be granted.
f) Cost of the proceeding may kindly be order to be paid to the complainant from the
respondent.
g) Any others just and equitable order may be passed in favor of the complainant.”

4. The complaint was heard on 20.02.2024 wherein the following roznama was recorded
by this Authority:
1. “The Respondent avers that he has filed his written submissions and the same be taken
on record. He also avers further that the Complainants have to pay instalments dues and
the same may be taken on record by the Authority. The Complainant seeks liberty to file
an order of the Hon’ble Tribunal up to 23.02.2024, the same is granted to him. A copy
of the same be also served on the Respondent. Matter reserved for orders.
2. The Advocate for Respondent seeks further time to upload any submissions remaining
to be uploaded. The Respondent is granted liberty to upload submissions if any on or
before the 23.02.2024.”

5. The brief facts & submissions of the Complainant are as follows:

A. The complaint was filed on 19.01.2020.
B. The Complainant executed an agreement for sale dated 13.09.2014 with
Respondent No. 1 Kul Developers (“erstwhile promoter”) for flat bearing No.
1312 in the said Project for a total consideration amount of Rs 28,47,056/- out of
which the Complainant has paid an amount of Rs. 10,22,979/- till date towards
the flat. (hereinafter referred to as “said flat” and “said agreement”).
C. However, the erstwhile promoter, without taking consent of the Complainant
at Sr. No.1, handed over the said Project to another promoter (Respondent
herein).
D. As per the said agreement executed between the Respondents and the
Complainant the date of possession is 12.09.2019. That the terms of the said
agreement are unfair and bias and are unilaterally in favour of the Respondent.
E. The Respondent No. 2 shared draft of the Supplementary agreement with the
Complainant which the Complainant were ready to execute subject to change
in the promoter and project name.

Page 2 of 8
F. The Complainant seeks interest for delayed possession and execution of
supplementary agreement.

6. The brief submissions of the Respondent are as follow:

A. The Respondent changed the name of the Company from Kul Developers Pvt.
Ltd to Ashdan Developers Pvt. Ltd. and the Complainant were informed about
the same.
B. The said project is part of integrated township plan named as Kul Nation the
present owners are shareholders of Respondent Company.
C. The Respondent conducted a meeting wherein through express consent of
majority of the allottees and mutually extended the date of possession and
proposed date of completion of the said project. The Complainant failed to
attend the meeting and raised and objection that the date of possession was
changed without their permission.
D. That the Respondent after taking over the said project restored the building as
it was in bad state. Further the Covid-19 pandemic impacted the said project
which led to delay in completion despite of which the Respondent completed
the construction at fast pace and informed the Complainant about the status of
the project through emails.
E. That the Respondent seeks the complaint be dismissed.

7. From the facts and submissions of the Parties the issue that needs to be examined at
this juncture is whether the Complaint is maintainable to seek reliefs with respect to the
captioned complaint under the said Act?

8. Before determining the issue at para No. 7, the following observations are
noteworthy:
A. That in the virtual hearing dated 12.09.2023 sought to amend the reliefs prayed
by him from withdrawing from the project to staying in the project.
Consequently, in the virtual hearing dated 07.11.2023 the Authority granted
liberty to the Complainant to amend the reliefs sought.

Page 3 of 8
B. That the only binding contract between the parties is the Agreement for sale
(hereinafter referred to as “said agreement”). That the parties have place on
record the said agreement before this Authority. After perusal of the said
agreement, it is observed that the agreement stands in the name of the
Respondent No.1 i.e Kul Developer (the erstwhile developer). Further it is observed
that the said agreement is prior to advent of RERA. It is observed that the said
agreement is not legible.
C. After perusal of the said agreement it is observed that as per clause 4.1.2 the date
of handing over possession of the said flat is on or before the expiry of 5 years from
date of execution of this said agreement which comes to 13.09.2019. However, it is
seen that the Respondent has failed to handover possession of the said flat to the
Complainants herein.
D. The said Project was registered by the Respondent as the Promoter of the said
Project upon the inception of the said act.

9. In order to answer the issue hereinabove, it is pertinent to examine “possession” as

contemplated under Section 18 of the said Act which is reproduced hereinbelow for
ease of reference:
“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.”

10. From the plain reading of Section 18 it is very clear that if the Promoter (Respondent
herein) fails to handover possession as per the terms of the agreement for sale by the
specified date therein, the Allottee (Complainant herein) has a choice either to

Page 4 of 8
withdraw from the said Project or stay in the same. The Complainant has chosen to
stay in the said Project and is seeking interest for delay in possession.

11. Further it is also pertinent to note that MahaRERA came into effect on 01.05.2017
on this date the pre-RERA agreements as above with its covenants binding upon
the Parties were in existence. With these binding pre-RERA agreements, the Parties
have now stepped into the era of RERA. At this juncture none of the Parties can use
RERA as an instrument to open up and rewrite contracts which have come into
effect pre-RERA. This Authority cannot re-write a contract which was executed
before the commencement of MahaRERA and that which was entered into between
the Parties with complete awareness. The said Act does not envisage that the
contracts / agreements entered into by the Parties prior to the commencement of
MahaRERA shall be deemed to have been re-written as per the said Act nor does
the said Act envisage fresh contracts be drawn up.

12. Therefore, the Parties will be bound by the pre-RERA agreement executed by the
Parties. It is further observed that the said agreements were executed between the
Complainants herein and the erstwhile Promoter. However, as per the submissions
of the Respondent herein, the change in promoter is only limited to change in the
name of the erstwhile promoter and not the structure of the entity itself.

13. It is also observed that Occupation Certificate (OC) for the said Project has not been
uploaded. Thus, it is admittedly clear that there is a delay on part of the Respondent
with regard to the handover of possession with OC as per the articles of agreement
of the Complainant herein.

14. Thus, the interest for delay in handover of possession shall be applicable from the
date mentioned agreement which comes to 12.09.2019 which shall be considered for
calculation of interest on account of delay caused, which is tabulated as under:

Page 5 of 8
INTEREST
SR. COMPLAINT NO. INTEREST
DATE OF POSSESION TO BE
NO & TO BE PAID
AFS1 AS PER AFS PAID
. DATE OF FILING TILL
FROM

Till the date of

CC005000000053899
receipt of
1. 19.01.2020 13.09.2014 12.09.2019 13.09.2019
Occupancy
Certificate.

15. Further, it is pertinent to note here that the provisions of Section 18 do not provide
for any waiver or disclaimer or exception. It is an absolute provision. The
Respondent herein have enumerated instances on account of which the said Project
has been delayed and that such reasons cannot be attributed to them. While the
Authority appreciates the complexity involved in executing a real estate project, it
also would like to put on record that there is nothing new in these complexities and
every Developer taking up such projects is well aware of them. Thus, while
declaring a date, the Promoter (Respondent herein) is required to conduct due
diligence on the Project. The Allottees (Complainant herein) have no means to know
the issues and problems involved and makes a booking on the sole criteria of the
declaration of completion date by the Developer/ Promoter. This is the very reason
that Section 18 remedy does not come with any caveats. This remedy has been made
available to ensure that Promoter (Respondent herein) make doable commitments
and not frivolous promises, which they then try to wriggle out of by appropriating
blame on other entities.

16. Therefore, after considering the aforementioned observations, provisions of the

Act, facts of the case, submissions of the Parties and the material placed on record,
the Authority hereby concludes that the Respondent has failed to handover
possession along with OC by the agreed dated of possession as per the terms and
conditions of the AFS, thereby causing considerable delay in completion of the said
Project and as such the Complainant herein are entitled to seek relief under section
18 for possession along with interest and compensation on account of delay in

1
AFS-Agreement for Sale.

Page 6 of 8
handover of possession, from the date as more specifically mentioned herein above
in para No. 16. Thus, the issue at para No. 7 is answered in affirmative.

17. With regard to claiming compensation for the mental harassment, mental torture,
agony and for EMIs paid, the Authority gives liberty to the Complainants to
approach the Adjudicating Officer for the limited purpose of determination and
computation of compensation.

18. Lastly, all other reliefs claimed by all the Complainants save and except the reliefs
sought under section 18 are rejected, as the Complainants have failed to state in
their complaint and has also failed to satisfy this Authority as to which provisions
of the said Act gives right to the Complainants to claim such reliefs.

FINAL ORDER
19. Therefore, after considering the aforementioned observations and provisions of the
Act, the materials placed on record, the facts of the case and submissions made by
the Parties, the Authority passes the following order:
A. The captioned complaint is allowed.
B. The Complainant is entitled to claim interest for delay in handover of
possession on the total amount paid to the Respondents from the date
mentioned in para No. 14 under the heading ‘INTEREST TO BE PAID
FROM’ at the rate as prescribed under Rule 18 of the Maharashtra Real Estate
(Regulation and Development) (Registration of Real Estate Projects, Registration of
Real Estate Agents, Rate of Interest and Disclosures on Website) Rules 2017 till the
date mentioned in para No. 14 under the heading ‘INTEREST TO BE PAID
TILL’.
C. The Respondent Promoter is entitled to claim the benefit of “moratorium
period” as mentioned in the Notifications / Orders Nos. 13, 14 and 21 dated
02.04.2020, 18.05.2020 and 06.08.2021 respectively issued by the MahaRERA.
The moratorium period shall be deducted from the total period for which
interest is payable.

Page 7 of 8
D. The total arrears of interest accrued from the date of promised delivery till
the date of OC, after deduction of the moratorium period, shall be set off
/adjusted against any outstanding dues required to be paid by the
Complainants together with interest on the same, if any, be paid in one
instalment to the Complainants, within 60 days from the date of this order.
E. Further arrears of interest accrued from the date of this order till the date of
receipt of OC shall be paid by the Respondent, within 3 months from the
date of receipt of OC in 3 equal monthly instalments.
F. The Complainants are granted liberty to approach the Adjudicating Officer
for the limited purpose of determination and computation of compensation
vide a fresh application.
G. All other reliefs claimed by the Complainants in all the complaints stands
rejected, save and except what has been mentioned hereinabove in para 19.
A. to 19. F.
H. No order as to cost.
AJOY Digitally signed
by AJOY MEHTA

MEHTA Date: 2024.06.13

17:04:41 +05'30'

(Ajoy Mehta)
Chairperson, MahaRERA

Page 8 of 8