Maha RERA dismisses case in which a buyer sought full refund for not getting possession on time

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.