Category: HI & RERA

Upholding a Maharashtra Real Estate Appellate Tribunal order, the Bombay High Court directed a developer to deposit 60 per cent of a refund amount set by the tribunal, before the tribunal hears the appeal.

Justice Bharati Dangre in an order last week refused to interfere with a MREAT order dated December 13, 2019, directing Sahyog Homes to first deposit 60 per cent of Rs 82 lakh refund to be given to a homebuyer.

Section 43 (5) of Real Estate (Regulation and Development) Act states that a promoter may approach the appellate tribunal but it shall not entertain the appeal unless the promoter deposits a minimum of 30 per cent of the penalty or higher percentage as determined by the tribunal.

An aggrieved Sahyog Homes moved the high court against the MREAT order. When the court indicated that it would not like to interfere with the order, the counsel for the developer submitted that they will deposit 60 per cent of the amount within six weeks from the order. The court then disposed of the appeal.

This is not the first time that a developer has tested this RERA provision before the high court. In February 2019, ITMC Developers Pvt Ltd, the promoter of Sapphire 1 project in Kurla, had also moved court after the tribunal asked the developer to deposit 50 per cent of the refund amount imposed by MahaRERA. The high court had confirmed the tribunal decision and rejected the appeal.

Advocate Tanuj Lodha who represented homebuyer Krishna Agarwal in this case, said, “It’s important that section 43(5) of RERA is adhered to since it safeguards the interest of the allottees.” In September 2019, MahaRERA had held that even an unregistered Memorandum of Understanding (MoU) was evidence enough that the homebuyer had booked a flat and directed Sahyog Homes to refund Agarwal Rs 82.95 lakh with 10.75 per cent interest from 2012.

Agarwal had booked flat no 2202 in Verona Tower S2 in Oshiwara in 2012 and paid Rs 82.95 lakh out of the flat cost of Rs 89.41 lakh based on a MoU. The developer promised possession in the 35-storey tower by 2016, but in 2017 it unilaterally revised the possession date to July 31, 2022, the complaint said.

During the hearings, the developer claimed that the Agarwals were not homebuyers but investors and that the MoU was not registered and hence a void document. The company attributed the delay in construction to noncooperation by slum dwellers in the SRA component.

MahaRERA member Madhav Kulkarni observed that the appellate tribunal had held that even in the absence of a registered agreement, such complaints were maintainable. Stating that the developer should not have accepted such huge amounts when the project was not progressing as per schedule, Kulkarni held that the developer had failed to deliver possession of the flat as per agreement and directed it to refund the entire amount with interest. This order was challenged by the developer before the tribunal.

Source: https://mumbaimirror.indiatimes.com/mumbai/other/builder-to-pay-part-of-refund-before-tribunal-hears-case/articleshow/74431967.cms

Pune

The Maharashtra Real Estate Regulatory Authority (MahaRERA) has directed developers with occupancy certificate to file a source complaint on denial of project with sub-registrar offices for want of Rera enrollment.

“Once a developer files a source complaint, the authority will look into it at the earliest. If the authority decides that the project doesn’t require MahaRERA registration, the developer can approach the sub-registrar office and get the project registered,” a MahaRERA officials said.

The move brings relief to developers in the state as they were not able to register their projects with the sub-registrar office for want of RERA registration, though they had occupancy certificate ready.

As per the rules, projects with occupancy certificates are not required to register with MahaRERA. However, a revenue department circular issued in September last year insisted on registration of all projects with RERA before registering them with sub-registrar offices in the state.

Members of the Confederation of Real Estate Developers Association of India (Credai) too had raised the issue, saying that the RERA rules specifically mention that projects with completion/occupation certificate before the registration of sale deed were exempted from RERA registration.

Revenue minister Balasaheb Thorat had told TOI last week that he had directed all the departments concerned to issue clarity on the subject.

MahaRERA hearings to commence in Nagpur.

The MahaRERA, which presently conducts hearing in Mumbai and Pune, will extend the hearings to Nagpur too, MahaRERA officials said on Saturday. The move aimed at addressing the pending cases, they added.

Source: https://timesofindia.indiatimes.com/city/pune/maharera-directs-developers-to-file-source-complaints-if-unable-to-register-project/articleshow/74035664.cms

The regulatory body dismissed a case in which a buyer sought full refund for not getting possession on time.

The Maharashtra Real Estate Regulatory Authority (MahaRERA) has ruled that developers, before making any changes in the approved plan of a project, require the consent of two-thirds of allottees, and once consent is given in writing and the plan is amended, the allottees cannot change their mind.

The order was given last week by MahaRERA member Bhalchandra Kapadnis in the Sunil Wadhwani vs Pashmina Realty Ltd case.

Homebuyer Wadhwani had booked flat no C-701 in Pashmina Lotus located at Chandivali in Powai with the promise of possession on September 30, 2016. Wadhwani sought refund of his investment with interest under Section 18 of RERA contending that the developer failed to deliver by the agreed upon date.

During the hearings, Pashmina Realty Ltd, represented by chartered account Ramesh Prabhu, contended that the plans for 4BHK were considered unviable, and had to be revised to build 2BHK and 3BHK flats in the project. The plans were modified with the written consent of two-thirds of homebuyers, including Wadhwani, as mandated by RERA. Prabhu argued that Wadhwani’s complaint should be dismissed since he gave consent for re-planning under Section 14 (2) of RERA and cannot withdraw his permission now.

Prabhu submitted that Pashmina Lotus project was abandoned and the revised project was registered as Lake Riviera A & B wings with MahaRERA and developer EktaWorld was brought on board as development manager. He said Wadhwani has used the registration number of Pashmina Lotus to file his complaint though he is now an allottee of Lake Riviera and hence his complaint was not maintainable.

Advocates Siddhesh Bhole and Krupashree Sawant, appearing for Wadhwani, pointed out that their client had paid Rs 2.70 crore out of the flat price of Rs 2.76 crore and unless the entire sum is refunded, no subsequent agreement can be executed. Kapadnis observed that the consent under Section 14 (2) of RERA — involving two-thirds allottees — was given to the promoters and Wadhwani had shown readiness to pay Rs 20 lakh for additional carpet area.

“These facts, therefore, establish that on the consent of the complainant, the respondents have acted upon to their disadvantage and hence the complainant is ‘estopped’ under Section 115 of Evidence Act from withdrawing his consent and his status as allottee of the new flats,” Kapadnis said in his 8-page order.

He also said Section 62 of the Contract Act and the principle of novation of contract come into play in this case. Section 62 states that if the parties to a contract agree to substitute it with a new contract, then the original agreement need not be acted upon. It also says that novation requires that the old contract be replaced by a new contract.

Holding that novation of contract should be applied to this case, Kapadnis ruled that the amount paid by Wadhwani for flat no C-701 should be adjusted against the two new flats and directed both parties to register the agreement for sale for the new flats within one month from the order.

Source: https://mumbaimirror.indiatimes.com/mumbai/other/once-two-thirds-of-homebuyers-give-consent-no-turning-back-maharera/articleshow/73219860.cms

Pune

The Maharashtra Real Estate Regulatory Authority (MahaRERA) has in a recent order held that industrial units or buildings part of such units would not come under the purview of the Real Estate (Regulation and Development) Act, 2016.

RERA adjudicating officer BD Kapadnis observed in an order that complaints related to industrial units could not be covered under the real estate statute.

The officer passed the order while hearing a case related to a complainant who had booked two units in an industrial facility, but failed to get their possession on agreed date of May 31, 2015. The complainant wanted to withdraw from the project and claimed refund of the amount with interests and compensation.

The RERA authorities said the Maharashtra Ownership Flats Act (Mofa), 1963, was applicable to the units and not the real estate law.

“It is clearly mentioned in the documents that the units are described as ‘estate units’ and they are of ‘big size’. It is mentioned in the documents that the units are agreed to be purchased for setting up industrial business of manufacturing and permitted under industrial location policy,” the RERA adjudicating office observed after going through the relevant documents related to the case.

“After looking into these legal aspects of the matter, the only conclusion that can be drawn is that Mofa is applicable to the premises used for carrying on any industry whereas the definition of the apartment does not include the industrial purpose. There remains no doubt in my mind that the industrial units are not included in the definition of apartment in RERA,” the officer added.

Source: https://timesofindia.indiatimes.com/city/pune/maharera-says-industry-units-not-under-purview/articleshow/73068802.cms