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.
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