An agreement is meeting of minds even without legal obligations. The Agreement is a form of contract relating to offer, acceptance, consideration, time schedule, clarity of title and as to essence of time . The allotment letter incidentally is couched in such a fashion to incorporate all requisite terms. Hence, Letter of Allotment will not scuttle the rights of allottees.
In the instant case, nothing was left to be negotiated.Terms of Allotment Letter were read and understood . It was a concluded bargain. Further, it was held that the Allottees would not fail for want of Agreement for Sale and the complaints are maintainable.
The Order passed on 29thDecember , 2017 was set aside and remanded back to the Adjudicating Officer , to be decided on fresh merits. The Respondent was directed to pay the cost of Rs.15,000 each to the Complainant – allottees.
Both the parties have assailed the Order of Ld. Chairperson ,MahaRERA dt. Jan. 16,2018. The Ld. Chairperson had taken recourse to the information conveyed by the Promoter on the MahaRERA website. The main crux of the matter at hand lied in the fact that if the Project was shown incomplete as on 9/01/2018, how could an Occupation Certificate be termed as a legal document ? The photographs presented highlighted the shabby state of affairs at the site and were enough proof to hold that the project is inhabitable. The canvass projected by the Promoter about the completeness of the Project was just an eye wash.The Certificate issued by the Architect was clearly erroneous and was drawn upon on the tune of the promoter. Such factually incorrect endorsement calls for condemnation and action. An inspection certifies the grievance of the Allottees to be true.
The promoter cannot be allowed to escape from an obligation stated in the Agreement and raise undesired excuses, to create spike in discharging the time schedule.Needless to indicate, the builder has to herald a legacy of trust and commitment. The allottees cannot be lured. The Promoter’s appeal was dismissed . M/S Sea Princess Realty was directed to pay interest @10% p.a as directed by the Ld.Chairman . Also,Action was to be taken against the Architect for false Certification by informing the correct body .
The Complainant alleged that pursuant to the Agreement, the Respondent was supposed to handover the possession of the Apartment by 22nd September,2017 , but has failed to do so. Secondly, the Respondent was demanding Maintenance Charges even though the possession of the flat has not been handed over. Thirdly, the Respondent has collected the Service Tax from the Complainant but has failed to remit it to the Government and is thus refusing to pass on the Input Tax Credit benefit to the Complainant.
The Respondent was directed to handover the possession by 31st July,2018 along with Occupancy Certificate. Failing which, he shall be liable to pay Interest to the complainant from 1st August till the date of possession on the amount paid by the Complainant to the Respondent. Further, Maintenance Charges are to be paid only post possession of the said Apartment being handed over. The Complainant shall pay the balance amount only at the time of possession. Lastly, the Respondent shall pass on the GST Input Tax Credit duly to the Complainant.
The Complainants have alleged that the Respondents have willfully delayed the completion of the project. Further, they were vary of the possibility of changes that could be made in the sanctioned plans and layout with the intention of maximizing profits. The Respondents should commit to a reasonable time line.
In an order date 2nd April, the Authority has already held that reasonable time period which can be allowed can only be established after mitigating circumstances get over and project work commences. At present, there is a stop-work Notice by BMC , pendency of Receipt of the Environmental Clearance Order .Thus , the date of possession cannot be determined atthis stage.
In view of the above circumstances, the Respondent is again directed to make serious efforts to expedite the process of obtaining required sanctions and to complete the construction in a time bound manner.The Respondent shall also not unilaterally execute any cancellations in the said project , with respect to the Complainants of the present complaint.
The Complainants prayed that the respondents be directed to handover the possession of the Apartments along with amenities mentioned in Agreement of Sale and make provision for a second lift as promised earlier.
The advocates for the Respondent submitted that the delay was due to circumstances beyond the control of the Promoters. The asserted that the second lift has been installed and also the project will be complete within 2 months.
Thus, the Respondents shall handover the possession along with amenities and Occupation Certificate in a timely manner. Failing which,he shall be liable to pay Interest to the complainant from 1st August till the date of possession on the amount paid by the Complainants to the Respondent. The Complainants shall also pay the amount due towards taxes to the Respondents at the time of possession.
The Complainant alleged that in spite of having paid full consideration amount towards the apartment, Respondent has failed to execute and register the Agreement for sale , till date. The Advocate of the Respondent submitted that the allotment of the said apartment had been terminated, which was communicated to the Complainant via a Notice sent on August 22, 2017. The complainant had not raised any objection at that time.
The advocate for the Complainant denied the notice of termination of the allotment letter of the said apartment and alleged that it is a unilateral termination made by the Respondent, without any sufficient cause.
On the second date of hearing held on May 7, 2018, the Respondent verified the status of the said apartment as an unsold apartment. He further stated that the payments made by the Complainant pertaining to the said apartment have been adjusted by the Respondent for another apartment in another project of the Respondent which is not related to any MahaRERA registered project. The advocate for the Respondent did not refuse that the Complainant was an allottee. The termination of the allotment letter was unilateral and without any sufficient cause. Therefore, he continues to be an allottee in the said project.
Both the parties were directed to execute and register theagreement for sale as per the provisions of section 13 of the Real Estate (Regulationand Development) Act 2016 and the rules and regulations made there under within 30days from the date of this Order.
The Complainants rue that the Respondents has put a revised proposed date of completion as December 31,2027on the MahaRERA registration webpage, which is unreasonable. The Complainantsprayed that the Respondent be directed to hand over possession of their booked apartments and interest for the delay. One of the Complainants also prayed that theRespondent be directed to execute and register the agreement for sale for hisapartment.
During the hearing, the advocate for the Respondent accepted the delay inconstruction of the project and handing over possession of the apartments within thestipulated time. He further stated that the delay has been caused due to noncooperationfrom Developer - M/s. Sai Baba Developers (hereinafier referred to as the said Promoter), who is also a Promoter (Revenue share) in the said project pursuant tothe development agreement executed between the parties.
The Complainants alleged that pursuant to the said agreements for sale, the Respondent was to handover possession of the said apartments within a reasonable time period but has failed to do so. Therefore, they prayed the Respondent be directed to commit to a reasonable timeline for handing over possession of their apartments and pay them interest for the delay.
During the hearing held on March 12, 2018, the Respondent argued that the construction work of the project is delayed because of reasons which were beyond the Respondent’s control. Further, he submitted the said project is now complete and that some of the complainants have also taken possession of their apartments. He added that he has been unable to obtain the occupation certificate for the said project because some of the Complainants have made internal changes in their apartments. Finally, he submitted that he is making all efforts to procure the Occupation certificate for the said project.
On review of the respondent's MahaRERA registration it is observed that the respondent has put January,2021 as the revised proposed date of completion which is an unreasonable time period as per the provisions of the RuIe 4 of the Maharashtra Real Estate (Regulation and Development) (Registration of Real Estate Projects, Registration of Real Estate Agents, Rates of interest and Disclosures on Website) Rules, 2017.
In view of the above facts, the Respondent shall, therefore, handover the possession of the apartments, with Occupancy Certificate, to the Complainants before the period of June 30, 2018, failing which the Respondent shall be liable to pay interest to the Complainants from July 1, 2018 till the actual date of possession, on the entire amount paid by the Complainants to the Respondent. The said interest shall be 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.
In the present case, The Complainants have stated that they have purchased apartments by executing various registered agreements for Sale, executed and registered in the period ranging from October 2013 to February 2014, pursuant to which the Respondent was supposed to handover possession of the said apartments by December 3l,2016. Further, they stated the Respondent has collected up to 91% of the consideration amount for the said apartments, prior to 2015. The Respondent tried to explain that the construction work of the project could not be completed in the time as stipulated in the agreements for sale because of reasons which were beyond the Respondent’s control and these reasons are covered in the terms and conditions of the said agreements. The arguments made by the advocate for the Respondent and the reasons given by him for the delay in handing over possession of the said apartments, are general in nature. On the basis of the arguments made by the advocate for the Respondent a maximum period of six months' delay may be allowed to be condoned but certainly a delay of six months is attributable to the Respondent, for which he is liable to pay interest on delay as per Section 18 of the Act. The Respondents are liable to pay interest at the rate of 10% for a period of six months, to the Complainants, on the total consideration amounts paid by the Complainants to the Respondent prior to December 2016, as per the provisions of Section 18 of the said Act.
Complainant has booked an apartment bearing No. A3 - 1201 in the Respondent's project 'SHETH MIDORI' situated at Dahisar, Mumbai through an allotment letter dated March 16,2015 and even though he has already paid an amount exceeding 10% of the total consideration for the said apartment no agreement for sale has been executed till date. Further, he alleged the Respondent with a malafide intention, has via termination letter dated 30th November, 2017 cancelled the allotment for the said apartment. Therefore, the complainant prayed the Respondent be directed to execute and register the agreement for sale for the said apartment and handover possession of the same at the earliest.
The parties are directed to execute and register the agreement for sale as per the provisions of section 13 of the Real Estate (Regulation and Development) Act 2016 and the rules and regulations made there under within 30 days from the date of this Order. Further, the Respondent shall handover the possession of the said apartments, with Occupancy Certificate, to the complainant before the period of December 31, 2018, failing which the Respondent shall be liable to pay interest to the complainant from January 1,2019 till the actual date of possession, on the entire amount paid by the Complainant to the Respondent. The Complainant shall make payments totaling to 70% of the principal consideration amount for the said apartment at the time of execution and registration of the said agreement, since the construction work of the project has reached that stage. No interest to be levied on the Complainant for delayed Payments till date. Further payments to be according to the payment schedule stated in the said agreement.
The complainants are the allotters of the flats bearing Nos. C4-1303 & C4_ 1304 in the respondent's project known as ,”My City - Phase I”, at Thane. They have paid 5% of the total consideration amount, stamp duty and registration charges for execution of registered agreement for sole. The respondent has sent them draft agreement for sole to be executed between them. However, the complainant has pointed out some deviations in the agreement when compared with the model agreement prescribed under the RERA Rules. ln particular, clause No. 27 of the said agreement drafted by the respondent proposes arbitrator to resolve the disputes thereby excluding the authority of RERA. The complainants, therefore, requested the respondent to revise clause No. 27 in the agreement, which was not accepted by the latter. Hence, this complaint had been filed.The respondent relied upon Rule 10 of the MahaRERA (Registration of Real Estate project, Registration of Real Estate Agent, Rates of lnterest and Disclosure on Website) Rules 2017, which provides that nothing prevent the promoter to modify the model form of agreement for sole at Annexure-A, provided that such agreement is in conformity with the provisions of sub-section 13 (2) of the RERA Act, 2016.
The Authority fears that the deviation made by the respondent certainly make the agreement more favorable to him vis-à-vis the home buyers. The latter will find it difficult to seek justice if there is a default on the part of the promoter. There is nothing objectionable in the revised paragraphs under clause 27 of the draft agreement as suggested by the complainants and reproduced above' This will certainly help the homebuyer to safe guard his interests in purchasing the property. This will further reassure that the agreement complies with the provisions of RERA Act & Rules there under.
Complaint had been filed by 38 complainants. They alleged that there was no date of handing over possession mentioned in the agreements for sale executed with the complainants, however, the Respondent on various occasions had promised various dates for handing over possession, the latest being November, 2017, but had failed to do so.
Two complainants have booked apartments in the said project and in spite of having paid upto 90% amount towards the consideration of their apartments, the Respondent has failed to execute and register the agreements for sale.
They further alleged there were discrepancies in the carpet area as promised at the time of booking and as mentioned in the agreements for sale.
Advocate for the Respondent argued the project work has been delayed due to reasons beyond the control of the Respondent, however, the Respondent is now committing to handover possession of the said apartments by December 31, 2018. Further, she argued that at this stage the Respondent will not be able to execute and register the agreements for sale with the said two complainants as she has been estopped by an Arbitration Award dated January 22, 2018, which prevents the Respondent from creating any further third party rights in the said project.
It was decided that the Respondent shall handover possession of the apartments, with Occupancy Certificate, to the Complainants before the period of November 30, 2018, failing which the respondent shall be liable to pay interest to the complainant from December 1, 2018 till the actual date of possession, on the entire amount paid by the Complainants to the Respondent. The said interest shall be 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.
The Respondent shall share with the Complainants a copy of the Architect's Certificate giving clarification regarding the carpet area being allotted to each of the complainants. Respondent shall initiate the process of forming the Co-operative Housing Society within one month from the date of this Order. Further, the Respondent shall update the latest details of the said project on their registration webpage within 7 days from the date of this Order.
Since the said two complainants have already paid upto 90% towards the consideration price of their apartments, the Respondent shall make them a Party in the appeal proceedings being filed against the said arbitration award so that the concerns are also presented before the adjudicating authority. Further, the Respondent shall not demand any further payments from the said two complainants till the time of executing and registering the agreements for sale.
The complainant has stated that he had booked a residential flat in respondent's project and paid 100% amount to the respondent. The respondent had also issued him on allotment letter dated 29th April,2017 and agreed to handover the possession of the flat by June 2017. But till date the respondent neither executed registered agreement for sale with him nor gave possession of the flat. Hence, the complainant has prayed for directions to the respondent for execution of agreement for sale with the complainant, for early date of possession and also interest for the delayed possession. Respondent has stated that due to financial crunch she could not execute the agreement for sale with the complainant till date. However, the respondent has filed notarized affidavit-cum-undertaking executed by Mrs.Hemanti Deepak Kulkarni, authorized signatory of the respondent on record of this Authority stating that she will execute the registered agreement for sale with the complainant by May 2018. ln addition to this, the respondent has stated that the possession of the flat would be handed over to the complainant by May 2018.The complainant accepted the said undertaking.
Authority is of the view that since there is no agreement between the complainant and the respondent, section 18 of the Real Estate (Regulation and Development) Act, 2016 is not applicable to this case and therefore, the complainant cannot seek interest for the delayed possession.
The Complainant has purchased an apartment bearing No. 302 in the Respondent’s project 'Tirumala Habitats' located at Mulund, Mumbai through a registered agreement for sale executed on 9th September 2012. The date of possession in the registered agreement was mentioned as 31stDecember 2015.
The Complainant stated that, she has paid nearly 90 % of the total consideration amount, however, till date the possession has not be received from the Respondent. The advocate for the Respondent argued that construction work is nearing completion and they are applying for Occupation Certificate in near few months. The Respondent further explained how the delay in completion of the project has happened due to mitigating circumstances beyond his control. They stated that they will hand over the apartment in another six months, which was acceptable to the Complainant.
In view of the above, the respondent shall, therefore, handover the possession of the said apartment, with Occupancy Certificate, to the complainant before the period of 31st August 2018, failing which the respondent shall be liable to pay interest to the Complainant from 1st September 2018 till the actual date of possession, on the entire amount paid by the Complainant to the Respondent. The said interest shall be 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 Respondent may raise the demand of the balance outstanding consideration amount, only at the time of possession of the said apartment.
The Complainant had booked an apartment bearing No. 2603- Tower 12 in the Respondent's project 'RUNWAL EIRENE' located at Thane through a booking letter on December 24, 2017. The Complainant has stated that he has already cancelled the said booking via email dated January 6, 2018 and that the Respondent has informed him that the amount paid by him stands forfeited. The Complainant prayed that the Respondent be directed to refund the entire amount paid by him. The authorized representative of the Respondent explained that the entire amount is liable to be forfeited, as refund of booking amount is according to the terms and conditions of booking letter. However, they would re-examine if some amount could be refunded.
In view of the above facts, the Respondent is directed to complete the Process of refund within 15 days from this order.
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