1. The complainant above named has filed this complaint seeking reliefs from MahaRERA to direct the respondent to refund the amount paid to the promoters and compensation under the provisions of section 18 of the Real Estate (Regulation & Development) Act, 2016 (hereinafter referred to as ‘RERA’) in respect of booking of Flat no. T1-1201 in the respondent’s registered project known as “Nirvana Part I” bearing MahaRERA registration No. P51900010100 at Mumbai.
2. This complaint is scheduled for hearing today as per the Standard Operating Procedure dated 12-06-2020 issued by MahaRERA for hearing of complaints through Video Conferencing. Both the parties have been issued prior intimation of this hearing and they were also informed to file their written submissions, if any. Accordingly, both the parties appeared for the hearing and made their submissions. MahaRERA heard the arguments of the parties and also perused the available record.
3. It is the case of the complainant that the respondent has accepted Rs. 11,00,000/- as refundable advance by cheques dated 11.08.2015 without issuing any allotment letter or agreement for sale for booking of the said flat. The complainant demanded refund due to certain personal issues and the respondent agreed to refund the same and the respondent’s office issued a cancellation deed to the complainant having all the transaction details and got it signed by the complainant and took it back promising signatures on their part from authorized signatory. However, till date it has neither refunded the consideration paid nor has delivered the signed copy of cancellation deed. Hence the respondent has violated section 7 and 11(5) and 12 by doing the above said acts. As per section 12 of RERA, the complainant has asked for refund of amount paid to respondent by the complainant along with 12% PA and compensation of Rs 5,00,000/- for not writing down oral representation with regards to terms of agreement. The complainant has further asked for compensation.
4. The respondent on the other hand has refuted the claim of the complainant by filing its reply on record of MahaRERA on 30-07-2021. It has stated that the Hon’ble National Company Law Tribunal, Mumbai Bench vide order dated 4th July 2019 sanctioned the scheme of merger by absorption of Runwal Realty Private Limited the respondent herein with Runwal Developers Private Limited under the provisions of section 230-232 of the Companies Act, 2019 and pursuant to above Runwal Realty Pvt. Ltd. stands amalgamated with and into Runwal Developers Pvt.Ltd. Accordingly, all right, title, interest, entitlement, liabilities and responsibilities with respect of the said project being the promoter shall now be vested with Runwal Developers Pvt. Ltd. Hence the complaint suffers from misjoinder and the complainant ought to amend the complaint and implead Runwal Developers Pvt.Ltd. as party respondent.
5. It has further stated that there is no relation between complainant and respondent as allottee and promoter in view of the cancellation/withdrawal of the booking by the complainant on 4-5-2016 prior to RERA coming into force. It is stated that the complainant at the time of booking of the said flat had signed the application for booking form dated 9-11-2015 thereby agreeing to the terms and conditions mentioned therein and paid an amount of Rs. 11 Lakhs towards the booking amount out of the total consideration of the said flat of Rs.2,28,84,500/-. Further as per booking form, she had further agreed to pay on receipt of Intimation of Disapproval and commencement certificate up to 20% of the total value as per provisions of MOFA and simultaneously execute the agreement for sale. Accordingly, she was called upon to make the 20% payment as per demand letter dated 8-2-2016 but she failed and neglected to make the said payment but instead she sent an email dated 3-5-2016 stating that she wants to withdraw from the said project since she wanted to moved to USA. It is stated that again by way of letter dated 7-6-2016 she requested to cancel the booking due to her personal constraints due to which she was not in a position to pay the balance amount towards the said flat.
6. It is stated that clause no. 5 of the said application provides that in the event of cancellation of booking of the said flat for any reason whatsoever, the amount paid shall not be refunded and shall stand forfeited by the respondent as and by way of liquidated damages. Thereafter the respondent informed the complainant by an email dated 11-7-2016 stating that in the event of cancellation, the entire amount paid will be forfeited and on humanitarian grounds granted her some more time to pay the outstanding amount but she failed to pay and therefore the respondent by an email dated 9-2-2017 informed the complainant that the booking of the said flat stood cancelled. Thereafter, the relationship between complainant and respondent ceased to exist in the year 2016 i.e. prior to the RERA coming into force and therefore the MahaRERA has no jurisdiction to entertain the present complaint. The respondent has relied upon the judgment o f the full Bench o f this Au thori ty in Complain t no . CC00600000057648 Sahilesh Kumar Mishra vs. M/s. Nirmal Group of Companies in which it has been observed as under
“The Bench has formed the opinion that the cause of action has arisen in theses cases on 07th April 2017 when the bookings have been cancelled. The same did not subsist on 01st May 2017 when RERA came into force. Therefore, there is no violation or contravention of any provisions of RERA. Hence, the Authority does not get the jurisdiction to entertain these complaints under section 31 of RERA.”
It is further stated that the same view has been taken by the Appellate Tribunal in AT006000000011014 Mrs. Reema Rameshwar Sankhe vs. M/s. Ruchi Priya Developers Pvt. Ltd. Further, the complainant has suppressed the fact from this Hon’ble Authority that she has already filed Summary Suit no. 2774 of 2018 before the Bombay City Civil Court for the recovery of amount of Rs.11 lakhs. Further, a bare perusal of section 31 of the RERA read with Rules 6 and 7 of the RERA Complaint Rules clearly mandates that a complaint can be filed by a person aggrieved by any violation of the provisions of the RERA and she has not made clear as to how there is violation of sections 7,11(5),12 of RERA. It has further denied that she was asked to execute cancellation deed and respondent had promised to refund the amount. The respondent has relied upon the judgement of Hon’ble Member-2/MahaRERA in the case of Sachin Patil vs. Manish Khandelwal that a complaint filed for refund of monies on the pretext of ‘personal reasons’ cannot be entertained under the RERA.
7. In addition to this, it is further stated that the complaint must be heard by a Bench of this Authority and not by a Single Member as observed by the Hon’ble High Court of Punjab and Haryana in the case of Janta Land Promoters Pvt. Ltd. vs. Union of India. The respondent stated that a legal notice dated 7-4-2018 to refund the booking amount paid by the complainant was sent to which the respondent replied by letter dated 31-4-2018 denying the allegation therein. It is stated that the complainant is no longer an allottee under the RERA since the booking was already cancelled prior to coming into force of the RERA and hence, the complaint is liable to be dismissed.
8. The MahaRERA has examined the rival submission made by both the parties and also perused the record. In the present case, by filing this complaint, the complainant has approached MahaRERA seeking refund of the booking amount paid by her towards the booking of the flat in the respondent’s registered project. The said claim has been denied by the respondent promoter mainly on the ground that the complaint is liable to be dismissed on the preliminary ground of misjoinder of parties and the complainant is not an allottee of this project as the booking has been cancelled prior to commencement of RERA and hence she cannot said to be an aggrieved party under the RERA etc.
9. As far as the preliminary issue raised by the respondent promoter regarding the jurisdiction of Single Bench of MahaRERA to hear this complaint in view of the judgement given by the Hon’ble Punjab Haryana High Court, the MahaRERA is of the view that the said Judgment relied upon by the respondent has been challenged in the Hon’ble Supreme Court of India. Moreover, subsequent to the said order, the Hon’ble Allahabad High Court has also passed judgments confirming the issue of the Hon’ble Chairperson/ Member of the “Authority” to conduct proceedings singly.
10. In addition to this, the MahaRERA is also of the view that the provisions of Regulation 24 of the Maharashtra Real Estate Regulatory Authority (General) Regulations, 2017 has been challenged before the Hon’ble High Court of Judicature at Bombay in WP No. 8086 of 2020. However, as on date, no order has been issued by the Hon’ble High Court at Bombay declaring the said Regulation as ultra vires. In view of these facts, the MahaRERA is of the view that the Member of the “Authority” can singly decide this complaint in terms of the provisions of section 81 of the RERA read along with Regulation 24 of the Maharashtra Real Estate Regulatory Authority (General) Regulations, 2017.
11. Moreover, the Full Bench of MahaRERA in its order dated 31-05-2021 passed in Complaint No. CC006000000078952 along with other 2 complaints has dealt with the issue at length and has held that the Hon’ble Chairperson/Member of the Authority singly can conduct proceedings in terms of the provisions of section 81 of the RERA read along with Regulation 24 of the Maharashtra Real Estate Regulatory Authority (General) Regulations, 2017. Hence, the MahaRERA does not find any merits in the said contention raised by the respondent. Hence the same stands rejected. Moreover, it is clarified that whatever order is passed by the Hon’ble Supreme Court of India in this regard, would be binding upon all parties including the MahaRERA.
12. In the present case, the respondent has raised the issue of maintainability of this complaint on the ground that the complainant is not an allottee of this project as she has cancelled the booking prior to commencement of RERA. In this regard, the MahaRERA has perused the record. Admittedly, the said booking was done in the year 2015 when the provisions of MOFA were prevailing and the said flat was booked for total consideration amount of Rs. 2,88.45,000/-. At the time of booking the complainant has paid an amount of Rs. 11,00,000/- as booking amount. Thereafter, as per the terms and conditions of the said booking form, the respondent raised demand for further payment to the complainant. However, it appears that on 3-05-2016, the complainant sought cancellation of the said booking through email due to personal reasons that her husband is studying at USA and hence she wants to move to USA. The said email is placed on record at Exhibit – C to the reply of the respondent. It clearly shows that the complainant has sought cancellation due to her own personal grounds and not due to the default on the part of the respondent.
13. Accordingly, the respondent has accepted the cancellation and executed the cancellation deed on 23-06-2016 and same is signed by both the parties. A copy of the same has been submitted by the complainant on record of MahaRERA along with her own complaint.
14. The complainant has alleged that in the said cancellation deed the respondent has agreed to refund the booking amount paid by her. However, the respondent has contended that the said booking amount paid by the complainant stands forfeited by virtue of clause No. 5 of the said booking application form.
15. However, on bare perusal of the cancellation deed signed by both the parties, it appears that in clause no. 2 of the said cancellation deed, nothing is mentioned about the re-payment of the booking amount as same is kept blank. It shows that the booking done by the complainant stood cancelled on 23-06-2016 and therefore the status of the complainant as an allottee came to an end in the year 2016 itself before the commencement of RERA. Therefore the complainant cannot be treated as an ‘allottee’ under the provisions of section 2(d) of the RERA.
16. Moreover, since the cancellation deed has been duly signed by both the parties, wherein no amount of refund has been mentioned by both the parties, therefore the complainant cannot seek any refund of the booking amount in accordance with the said cancellation deed dated 23-06-2016. Hence the MahaRERA does not find any merits in this complaint.
17. In view of these facts the complaint stands dismissed for want of merits.
18. The certified copy of the order will be digitally signed by concerned Legal Assistant of MahaRERA and it is permitted to send the same to both the parties by e-mail.
