1. The complainants above named have filed these two separate complaints seeking directions from MahaRERA to the respondent to refund the entire amounts paid by them along with interest under the provisions of section 18 of the Real Estate (Regulation & Development) Act, 2016 (hereinafte referred to as ‘RERA’) in respect of the booking of their respective flats in the respondent’s registered project known as “Anandgram Ketkawale Phase 1” bearing MahaRERA registration No. P52100001280 located at Ketkawale, Dist. Pune.

2. These complaints were heard on 9-08-2021 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, the complainants appeared through their advocate and showed their willingness to settle the matters amicably with the respondent. Hence, on request of the complainants these complaints were transferred to MahaRERA Conciliation Forum for appropriate action. However, the parties could not arrive at any mutually agreeable terms since the respondent did not remain present for the said hearings before the Conciliation Forum. Hence, these complaints were again referred to MahaRERA on 22-09-2021 for passing appropriate orders.

3. Accordingly, these complaints were scheduled for hearing today when the complainants appeared and made their submissions. However, despite the notice of hearing none appeared on behalf of the respondent. MahaRERA heard the arguments of the complainants and also perused the available record.

4. It is the case of the complainants have been filed against the respondent M/ s. Vastushodh Realty LLP through its partner (the present respondent). The complainants have stated that they have booked their flats in the respondent’s project by executing the registered agreements for sale. However, the respondent has failed to hand over possession of their flats on the agreed dates of possession mentioned in the said agreements for sale. The complainants have submitted following details in their complaints in support of their claims: 

5. The complainants further stated that though they have made substantial payments towards the consideration of their flats, the respondent promoter has failed to handover possession of their flats on the agreed date of possession mentioned hereinabove. Further, they also tried to resolve the issue amiably with the respondent promoter, however though he has agreed for the same, he has not taken any steps to resolve the issue with them. The Complainants further stated that the respondent has not completed the construction work, and there are no hopes of completion of the building/ project. Even the project is stalled from more than last 2 years. Hence, they issued letters to the respondent mentioning that there is no progress in the construction and no hopes of giving possession of the flat within stipulated time by it. Hence, they would like to cancel the booking and demand the entire paid amount and interest. The respondent acknowledged the receipt of the application and gave in writing on the application that he would process the refund within six months from the date of application. Accordingly, he has refunded certain amount to them. However, full and final amount has not been refunded to them. Hence, the present complaints have been filed seeking reliefs under section 18 of the RERA.

6. In the present case, the MahaRERA has observed that the complainant has filed this online complaint before MahaRERA in the month of July 2020. However, till date the respondent has not bothered to file its reply to this complaint, though the complaint is visible to the respondent in its project. Even after issuance of the SOP dated 12-06-2020, the respondent was liable to upload its reply in digital form in this complaint. However, till date the respondent has not complied with the said direction. Furthermore, though the notices for the hearings were duly served upon the respondent he has failed to appear for the said hearings. It shows that the respondent is not willing to contest this complaint. Hence, the MahaRERA has no other alternative but to proceed with the matter ex-parte against the respondent on merits.

7. The MahaRERA has examined the arguments advanced by the complainants. The complainants being allottees of this project filed this complaint seeking refund of the entire amount paid by them along with interest due to the delayed possession under section 18 of the RERA. There are registered agreements for sale entered into between the complainants and the respondent on the dates mentioned in the aforesaid para. no. 4 and a copy thereof have also been uploaded on record of MahaRERA by the complainants. According to the said agreement for sale, the respondent has agreed to handover possession of the said flat to the complainants on various dates mentioned in the aforesaid para. no. 4. However, the possession has not been handed over to the complainants.

8. In this regard, before dealing with the facts in these complaints, it is pertinent to examine “possession” as contemplated under section 18 of the RERA, which reads as under:

“18. (1) If the promoter fails to complete or is unable to give possession of an apartment, plot or building,— (a) in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or (b) due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason, he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot, building, as the case may be, with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act: Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be prescribed.”

9. From the plain reading of section 18, it is very clear that if the promoter fails to handover possession as per the terms of the agreement for sale or as the case may be, by the specified date therein, the allottee has a choice either to withdraw from the said project or to stay with the project. Further, in case the allottee chooses to be in the project and take possession, he is entitled to claim interest for the delayed period of possession on the actual amount paid by him for every month of delay. It is important to note here that the examination of the term ‘possession’ is in context to the agreement for sale signed by both the parties. According to the said agreement for sale, the respondent has agreed to handover possession of the said flat to the complainants on the dates specified in para 4 mentioned hereinabove. Admittedly, the possession of the said flats has not been handed over to the complainants on the said date of possession. The MahaRERA is of the view that the respondent has violated the provisions of section 18 of the RERA and therefore, the claim of the complainants towards refund along with interest has substance in law. Hence the complainants are entitled to seek relief under section 18 of the RERA.

10.Furthermore, the respondent himself has acknowledged the claim of refund requested by the complainants and has shown his willingness to refund the said amount. In view of these facts, the MahaRERA is of the view that the said delay has been anticipated by the respondent.

11.In view of above facts and discussion, the respondent is directed to refund the entire amount paid by the complainants towards the consideration of the said flat along with interest at the rate of SBI’s Highest Marginal Cost of Funds based Lending Rate (MCLR) plus 2% as prescribed under the provisions of section-18 of the RERA and the Rules made there under from the date of payment till the actual realisation of the said amount to the complainants. 

12.However, in view of the present mitigating circumstances beyond the control of the respondent promoter and also to ensure that the said project is not jeopardised due to the outflow of finances and is completed keeping in mind the interest of the other buyers of the said project at large, it is directed that the amount of refund along with interest may be paid by the respondent promoter within a period of 3 months from the date of this order in equal instalments. 13.With regard to the payment of interest to the complainants, the MahaRERA further directs that the respondent promoter is entitled to claim the benefit of “moratorium period” as mentioned in the Notifications /Orders nos.

13 and 14 dated 2nd April, 2020 and 18th May, 2020 issued by the MahaRERA and the Notification/Order which may be issued in this regard from time to time.

14.With the above directions, both these complaints stand disposed of.

15.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.