9911796707
TMI Blog2019 (9) TMI 1736X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 29th August 2018 passed by the Maharashtra Real Estate Appellate Tribunal, Mumbai (hereinafter referred to as "the said Tribunal") allowing the appeals filed by the respondents (original appellants/ complainants). By consent of parties, all the appeals were heard together and are being disposed of by a common order. 2. The facts in all aforesaid five appeals are identical. Learned counsel for the parties have addressed this Court in Second Appeal (St.) No.27914 of 2018. The facts in the said second appeal are thus summarised in later part of this judgment. Some of the relevant facts for the purpose of deciding these appeals are under :- 3. One Nehru Nagar Amrapali Co.op. Hsg. Soc. Ltd. (hereinafter referred to as "the said society") is lessee of MHADA in respect of the land bearing Survey Nos.229 and 267, corresponding to City Survey No.2(Part) of Village Kurla, admeasuring 707.30 sq.mtrs. situated at Nehru Nagar, Kurla (East), Mumbai 400 024 and owner of the building bearing Building No.133 standing on the said property. The old building No.133 has been demolished and a new building consisting of 7 floors has been constructed on the said property. 4. By and under a registere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the said Deed of Assignment. The said Deed of Assignment was duly registered under No.KRL-3-7594-2015. It was the case of the appellant that some of the respondents herein were witnesses in the said Deed of Assignment. The appellant had taken over the project as per collective decision of those 9 purchasers of the flats proposed on the 8th floor including the respondents for bailing them out. 8. It is the case of the appellant that due to various reasons beyond the control of the appellant, the appellant could not carry out construction work on the 8th floor under the said Deed of Assignment. On 25th March 2016, the said RERA came into effect pursuant to which it was obligatory for all the real estate developers to register their project with the Real Estate Regulatory Authority constituted under the said RERA. The appellant also registered the said project under the said RERA under No.P51800012607. 9. Sometime in the year 2017, the respondents filed separate complaint against the appellant before the Adjudicating Authority (hereinafter referred to as "the said authority" inter alia demanding payment of interest from the appellant under Section 18 read with proviso to Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h floor in the said new building. He placed reliance on some of the provisions of the Agreement dated 16th May 2013 entered into between M/s. Rebuilt Developers and one of the flat purchasers in respect of one of the flats on the proposed 8th floor and would submit that under the said Agreement, the said M/s. Rebuilt Developers had agreed to hand over possession of the flats to the flat purchasers on or before November 2013. The said agreement was entered into under the provisions of Maharashtra Ownership Flats Act. Under clause 5 of the said agreement, it was provided that the said M/s. Rebuilt Developers shall be entitled to reasonable extension to time for giving delivery of the flat on the date mentioned in the said agreement, if the completion of the building in which those flats were to be situated is delayed on account of various eventualities mentioned in clause 5 of the said agreement. 13. Learned counsel for the appellant invited my attention to some of the provisions of the said Deed of Assignment dated 9th November 2015 and would submit that none of the respondents were parties to the said Deed of Assignment. Under the said Deed of Assignment, the appellant had agreed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overy of premium payment and other necessary payments against FSI. He submits that the appellant had requested for issuance of revised NOC in view of the appellant having executed Supplemental Agreement with M/s. Rebuilt Developers and the society. He submits that MHADA however, did not process the application for revised NOC and did not issue commencement certificate for construction work of 8th floor. No power of attorney was executed by the Society in favour of the appellant in terms of clause (g) of the said Deed of Assignment. 16. Learned counsel for the appellant invited my attention to the letter dated 1st February 2019 addressed by the appellant after filing of these appeals terminating the Deed of Assignment between the appellant, the said M/s. Rebuilt Developers and the said society. Learned counsel for the appellant submits that since the Municipal Corporation had not granted any commencement certificate to the appellant for construction of 8th floor in the said society building, under clause (k) of the said Deed of Assignment, the appellant was not required to commence construction work of 8th floor. Period of construction of three months for completion of construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned counsel that in any event, since the appellant has already terminated the said Deed of Assignment on 1st February 2019, the appellant has ceased to be liable to comply with any of the obligations under the said Deed of Assignment or to pay any liability to any of the allottees. 21. Learned counsel for the appellant placed reliance on paragraphs 128, 129 and 132 to 134 of the judgment delivered by the Division bench of this Court in the case of Neelkamal Realtors Suburban Pvt. Ltd. & Anr. Vs. Union of India & Ors. reported in 2017 SCC OnLine Bom 9302 and would submit that under the provision of Section 18, the delay in handing over the possession would be counted from the date mentioned in the agreement for sale entered into by the promoter and the allottee prior to its registration under RERA and not on the basis of the date of handing over possession mentioned in the application for registration of project under RERA. The RERA does not contemplate rewriting of contract between the flat purchaser and the promoter. He submits that under the provisions of RERA, the promoter is given a facility to revise the date of completion of project and declare the same under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... independently without any kind of monetary claim over/from the society or its member. The said clause also refers to the Memorandum of Understanding executed between the said M/s. Rebuilt Developer and the appellant herein in that regard. 26. Learned counsel for the respondents placed reliance on the definition of "promoter" under Section 2(zk) of the said RERA and would submit that the promoter includes his assignee, a person who constructs or causes to be constructed an independent building or a building consisting of apartments. He submits that the appellant thus is promoter within the meaning of Section 2(zk) of the said RERA and is bound by the obligations of a promoter under the said provisions of the said RERA. He also placed reliance on Section 3 of the said RERA and would submit that prior registration of real estate project with Real Estate Regulatory Authority by the promoter in respect of the project that are on going on the date of commencement and for which completion certificate is not being issued is mandatory. It is submitted that on 6th September 2 017, the appellant had got its on going project which was inclusive of construction of 8th floor in the building reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from M/s. Rebuilt Developers. Under Section 15(2) of the said RERA, the said project having been assigned in favour of the appellant, the appellant became liable to independently comply with all pending obligations under the provisions of the said RERA and Rules and Regulations therein and pending agreements entered into between the erstwhile promoter and the allottees. He submits that having taken over the project from M/s. Rebuilt Developers, the appellant was bound to comply with the obligations of the erstwhile Developers under the agreement for sale entered into between the erstwhile Developers and the respondents. 30. In so far as the submission of the learned counsel for the appellant that the said Tribunal had not considered various submissions though forming part of the written submission filed before the said Tribunal is concerned, learned counsel for the respondents invited my attention to the order passed by the said Tribunal and would submit that the said Tribunal had summarised all the submissions which were made across the bar before the Tribunal in the detailed impugned order passed by the said Tribunal. He submits that if it was the case of the appellant that any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are Legislation to provide the flats to the respondents in an efficient and transparent manner. 34. It is lastly submitted by the learned counsel that no substantial question of law arises in these appeals filed by the appellant and thus no interference with the order passed by the said Tribunal is warranted. 35. Mr. Khandeparkar, learned counsel for the appellant in rejoinder would submit that the complaints filed by the respondents with the said authority were on account of the alleged failure on the part of the appellant on the date specified in MOFA agreements entered into between the said M/s. Rebuilt Developers and the respondents and not on the date of registration of stipulation date of completion mentioned in the application for registration of project by the appellant with the Real Estate Regulatory Authority. 36. Mr. Khandeparkar, learned counsel for the appellant placed reliance on paragraph 132 of the judgment delivered by the Division Bench of this Court in the case of Neelkamal Realtors Suburban Pvt. Ltd. & Anr. (supra) and would submit that the provisions of the RERA are not retrospective in nature but may be to some extent be having a retroactive or quasi retroa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irrevocable right to do so independently without any kind of monetary claim over/from the society or its member. The appellant had agreed to indemnify the society the cost of the litigation in respect of the claim raised by the new flat purchasers against the society or any individual member including the cost incurred for litigation in Court, Arbitration, advocate fees etc. 41. I am thus not inclined to accept the submission of Mr. Khandeparkar, learned counsel for the appellant that the appellant had not received any consideration from the respondents and thus was not liable to pay any interest on the delayed period under Section 18 of the said RERA. 42. Recital (d) of the said Deed of Assignment clearly provides that the appellant had agreed to accept all encumbrances created by M/s. Rebuilt Developers arising out of the said Development Agreement and Supplemental Agreement including the interest, right, title created in favour of new flat purchasers as per list annexed at Annexure-II to the the Deed of Assignment. I am thus not inclined to accept the submission of the learned counsel for the appellant that there was no agreement between the appellant and the flat purchasers o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancial crisis and to complete the pending construction work. It was the case of the appellant that the appellant was committed to complete the project in accordance with the Deed of Assignment on 31st December 2018 as mentioned in the registration details on MahaRERA's website. The competent authority while disposing of the complaint made by the respondents clearly observed that since in the Deed of Assignment, the names of all the complainants (respondents herein) were mentioned, they were entitled to possession of their apartments before 31st December 2018 as per the date mentioned in the project registration made by the appellant. This finding of the competent authority has admittedly not been impugned by the appellant by filing any appeal. The appellant cannot thus dispute the locus of the respondents to seek enforcement of their any rights under the MOFA agreements between the said M/s. Rebuilt Developers and the respondents which obligations are assigned in favour of the appellant under the said Deed of Assignment. 46. The rights of the respondents are confirmed by the appellant even before the competent authority and thus cannot be allowed to now challenge their locus in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission of Mr. Khandeparkar, learned counsel for the appellant that though various legal submissions were made before the said Tribunal by the appellant, the said Tribunal did not consider those submissions in the impugned order is concerned, a perusal of the impugned order of the said Tribunal clearly indicates that the Tribunal has summarised all the submissions made across the bar by the appellant and has dealt with each of those submissions in detail and after recording various reasons has rejected those submissions. If according to the appellant, any of the submissions made by the appellant during the course of the arguments were not dealt with or recorded, it was for the appellant to make appropriate application immediately upon receipt of the impugned order. The appellant however, has not made any such application raising these issues before the said Tribunal and thus cannot be allowed to urge such submission before this Court now. The impugned order passed by the said Tribunal thus cannot be set aside on this ground. 50. In so far as the submission of Mr. Khandeparkar, learned counsel for the appellant that since the assignment of Real Estate Project in favour of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... validity of the said Act except the provisions relating to one of qualifications for appointment of Judicial Member prescribed in Section 46(1)(b) of the said RERA. 54. In so far as the submission of Mr. Khandeparkar, learned counsel for the appellant that the RERA does not contemplate rewriting of contract between the flat purchaser and the promoter is concerned, there is no dispute about this proposition of law. However, in the facts of this case, learned counsel for the appellant could not point out as to how it could be said that the said Tribunal has rewritten the contract between the parties. The appellant had taken over all the obligations of erstwhile promoter under the said Deed of Assignment and thus is unable to demonstrate that the said Tribunal or the said Authority had rewritten any part of the agreement entered into between the parties. 55. In so far as the submission of the learned Counsel for the appellant that since the Municipal Corporation of Greater Mumbai did not issue commencement certificate in respect of pending work, the period of three months for completing the pending construction of the work of the building in all respect had not commenced is concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant. 59. In so far as the submission of the learned Counsel for the appellant that the provisions of the said RERA are not retrospective in nature but may be to some extent having a retroactive or quasi retroactive effect is concerned, there is no dispute about this proposition of law canvassed by the learned Counsel for the appellant. None of the reliefs granted by the said Tribunal in favour of the respondents are with retrospective effect in this case. 60. In so far as the submission of the learned Counsel for the appellant that the appellant did not get any benefit of any nature whatsoever under the Deed of Assignment since 9 out of 10 flats on the 8th floor proposed to constructed by the appellant were already sold by the erstwhile promoter is concerned, the appellant cannot be permitted to wriggle out of its statutory obligation under the provisions of the said RERA having accepted assignment of the said real estate project from the erstwhile promoter. It was a commercial bargain between the appellant and the erstwhile promoter and thus even if there was no expected profit earned by the appellant under the said Deed of Assignment, the appellant cannot refuse to pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
