1. The complainant above named has filed this online complaint before the MahaRERA on 18-12-2021 mainly seeking directions from the MahaRERA to the respondent for outstanding rent with interest, cost and penalty under the provisions of the Real Estate (Regulation & Development) Act, 2016 (hereinafter referred to as ‘RERA’) in respect of the booking of a flat (“said flat”) in the respondent’s registered project known as “JEET SOCIETY PHASE II” bearing MahaRERA registration no. P52100030110 located at Kothrud, Pune.

2. This complaint was heard on several occasions by the MahaRERA and same was finally heard on 12-09-2023 as per the Standard Operating Procedure dated 12-06-2020 issued by the MahaRERA for hearing of complaints through Video Conferencing. Both the parties have been issued prior intimation of said hearing. Accordingly, both the parties appeared for the said hearing and made their submissions.

3. After hearing the arguments of both the parties, the following Roznama was recorded in the complaint:

“Both the parties are present. The respondent has filed its written statement in the complaint. Therefore, the complainant may file a rejoinder to the written statements within a period of 2 weeks i.e. by 26-09-2023. The respondent may also file any additional submissions within a further period of one week i.e. by 03-10-2023. The respondent has refuted the contentions of the complainant and has mentioned that it is ready and willing to adjust whatever claims the complainant has against the amounts payable by the complainant towards the extra area according to the agreement for sale. The complainant has prayed for rent due for the last 5 years as well as interest for the delay as the flat was to be completed within 2 years of the agreement for sale. However, the respondent has contended that occupancy certificate for the project has been received and the members including the complainant have been informed to obtain the possession. In view of the above, this matter is reserved for orders suitably after 03-10-2023 based on the arguments of both the sides as well as written statements, rejoinder and additional submissions filed in the complaint.”

4. Pursuant to the aforesaid directions, the complainant has filed her rejoinder on 26-09-2023. Thereafter, the respondent has filed additional written submissions on 03-10-2023 on record of MahaRERA. The MahaRERA has perused the available record.

5. It is the case of the complainant that she is the member of the Jeet Co-Operative Housing Society Limited (‘Society’). Vide the development agreement executed between the Society and the respondent promoter, the society assigned the development rights of the society building then standing on the land on which the said project was being developed. The respondent failed to complete the project as agreed in the development agreement and the said project is delayed. As per the development agreement, the respondent had to pay Rs.10,000/- per month for the delay in completion of the project. Due to the delay in handling over possession, she prayed for outstanding rent along with interest and penalty be imposed with cost under the provisions of the RERA.

6. The complainant filed her rejoinder on record of MahaRERA, which is mere repetition of the online complaint. In addition to this, the complainant has stated that the respondent has obtained project registration by misleading MahaRERA. Also, the respondent is involved in fraudulent activities such as the four flats allotted to existing members were mortgaged to Dharampeth Nagari Sahakari Patsanstha for taking loan of Rs. 2 crores. The complainant further stated that the respondent by letter dated 28.08.2021 to the society asked for RERA registration and sanctioned plans whereas the registration was done on 31-07-2021 and commencement certificate was obtained on 2-08- 2021 which proves deliberate conscious and willful cheating on the part of the respondent. Further, she has paid an amount of Rs. 18,35,200/- for the additional area (i.e. 325 sq. ft) in the said project for which the last instalment was given on 26-05-2014. As there was no progress in completion of project the complainant has filed this complaint. The complainant has referred the judgment of 1. Newtech promoters and developer private limited V/s State of U.P. and Neelkamal realtors suburban private Ltd. and several other judgments in support of her claim. Thus, the complainant is seeking direction to the respondent to pay interest, outstanding rent and further prayed for cancellation of RERA registration and penalty to be imposed with cost on the respondent.

7. The respondent has uploaded its reply to the complaint on the record of MahaRERA on 27-05-2022, denying all the averments and allegations raised by the complainant in the complaint. It stated that the complainant has failed to justify her case with relevant facts and has sought improper reliefs before the MahaRERA. Further, this complaint is not maintainable as it is a redevelopment project and not under the jurisdiction of MahaRERA. The respondent further stated that mortgage deed dated 06-11-2017 was for 5 flats (i.e. flat nos. 203, 301, 302, 303 and 304) which did not cover the complainant’s flat no. 503. The respondent further submitted that it never asked for any resolution from the society for the RERA registration of the project and by letter dated 28.08.2021, it just has informed the society about the RERA registration of the project. Further, the completion date of this project got delayed as the DP plan finalization for the Pune region was pending from 2015 to 2018. However, the respondent claimed that it has paid rent of Rs. 9,00,000/- (approx.) to the complainant till 2017. Further, the complainant is also getting additional area of 17 sq. ft. which amounts to Rs. 3,00,000/- (approx.) which amount shall be adjusted against the rent amount payable from 2018 onwards which comes approx. to Rs. 4,80,000/- and therefore the outstanding rent amount to be paid is Rs.1,80,000/- only. Since, the respondent is in financial difficulties, it could not pay rent/interest, but the respondent is ready and willing to pay the reasonable compensation. Hence, the respondent prayed to dismiss the said complaint with compensation and cost.

8. The respondent has filed its additional submissions on record of MahaRERA on 03-10-2023 which is mere repetition of the reply to the complaint on record of the MahaRERA. The respondent denied all the allegations of the complainant and contended that the judgments referred by the complainant do not apply to the present complaint as the complainant is the existing member of the redevelopment project. The respondent further stated that the rental outstanding amount of Rs. 1,50,000/- has been paid to the complainant. The respondent further claimed that all the other members of the society have taken possession however, the complainant only is trying to create ruckus. Therefore, the respondent prayed to dismiss this complaint with cost.

9. The MahaRERA has examined the rival submissions made by both the parties and also perused the available record.

10. The complainant herein claiming to be an allottee of this project has approached the MahaRERA mainly seeking rent/ interest/ penalty on account of delay in handing over possession of the said flat to the complainant and also for revocation of the project registration issued in favour of the respondent. The complainant is seeking such reliefs by virtue of the development agreement duly signed by the said society with the respondent (as per the complaint). The complainant has alleged that she has purchased additional area admeasuring 325 sq.ft from the respondent for which she has paid an amount of Rs. 18,35,200/-.

11. The respondent although has not denied the claim of the complainant about purchase of additional area and payment, it has raised the issue of maintainability of this complaint, stating that since the complainant is a member of the redevelopment society, this complaint is not maintainable as the redevelopment component does not fall within the purview of the MahaRERA. The respondent has also contended that it is ready and willing to compensate the complainant for the extra area purchased by the complainant.

12. Be that as it may, in this case admittedly, the complainant is a member of the Jeet CHS Ltd, which has undertaken the redevelopment project by assigning the development rights to the respondent herein vide a development agreement. However, the complainant in this complaint is seeking two substantive reliefs viz i) rent as per the development agreement and ii) interest on account of delay. Additionally, the complainant also prayed for revocation of the project under section 7 of the RERA.

13. As far as the claim of rent sought by the complainant at (i) above, it is pertinent to peruse the relevant provisions of section 3(2) of the RERA, which reads as under :-

“3(2) Notwithstanding anything contained in sub-section (1), no registration of the real estate project shall be required—

(a) where the area of land proposed to be developed does not exceed five hundred square meters or the number of apartments proposed to be developed does not exceed eight inclusive of all phases: Provided that, if the appropriate Government considers it necessary, it may, reduce the threshold below five hundred square meters or eight apartments, as the case may be, inclusive of all phases, for exemption from registration under this Act;

(b) where the promoter has received completion certificate for a real estate project prior to commencement of this Act;

(c) for the purpose of renovation or repair or re-development which does not involve marketing, advertising selling or new allotment of any apartment, plot or building, as the case may be, under the real estate project.”

14. The aforesaid explicit provisions of section 3(2) (c) of the RERA provides that the redevelopment component is not required to be registered with the MahaRERA meaning thereby that the redevelopment component does not fall within the purview of RERA. Hence, the MahaRERA has no jurisdiction to decide a dispute brought by the complainant which pertains to the redevelopment component. The complainant in this case is seeking rent by as per the term and conditions of the development agreement. Hence, the MahaRERA is of the view that the relief sought by the complainant towards the rent is not maintainable in view of the aforesaid explicit provisions of the RERA. Hence, the claim of rent sought by the complainant at (i) above stands rejected.

14. As far as the claim of interest on account of delay sought by the complainant at (ii) above, the MahaRERA is of the view that as stated hereinabove, the complainant has purchased the additional area admeasuring 325 sq.ft for which she has paid an amount of Rs. 18,35,200/-. Since the said additional area is purchased from the sale component, the MahaRERA prima facie is of the view that the claim of the complainant needs to be treated as an allottee of this project with respect to such an additional area.

16. The complainant although has claimed interest on account of delay under section 18 of the RERA, however, she has failed to submit any cogent documentary proof on record of MahaRERA to show that the respondent has ever agreed to handover possession of the said flat to her on any specific date of possession, which got over. However, in this case, the complainant is relying upon the development agreement signed between the society and the respondent on 31-07-2012. In clause 13(c ) of the said development agreement, the respondent has agreed to handover possession of the said flats to the members of the society within a period of 18 – 24 months from the date of commencement certificate.

17. Hence, in the present case in absence of any agreement for sale duly signed by and between the complainant and the respondent (for purchase of the said additional area), the date of possession mentioned in the said development agreement dated 31-07-2012 needs to be taken into consideration for deciding the claim of the complainant under section 18 of the RERA.

18. In the present case, on bare perusal of the webpage information uploaded by the respondent on the MahaRERA website, it appears that the commencement certificate (CC) for this project was obtained by the respondent on 31-12-2012. Considering, the said 24 months period from the date of the said CC, the date of possession in this case comes to 31-12-2014. However, on that date the project was incomplete and the possession was not handed over to the complainant. Even as on date the project is still incomplete and the possession is not handed over to the complainant.

19. The respondent has not denied the delay occurred in the project, however it has stated that the same is caused mainly due to delay in finalization of the D.P.Plan. Further, on account of the said delay, it has offered rent to the complainant at the rate of Rs. 9000/- p.m and the same is paid to the complainant till the year 2017. The respondent has also shown its willingness to compensate for the further delay.

20. Be that as it may, the respondent promoter has tried to cite various reasons of delay in handing over possession of the said flat to the complainant on the agreed date of possession, however all such constraints occurred after the date of possession mentioned in the development agreement got over on 31-12-2014. Being a promoter of the project, it is the duty of the respondent to obtain timely permissions from the competent authority/concerned authorities and the complainant allottee has nothing to do with the same.

21. Even if such reasons for delay are considered to be genuine and beyond the control of the respondent, the MahaRERA prima facia feels that the respondent is entitled to seek 6 months extension which was permissible under the provision of MOFA in which the said agreement was executed. In addition to this, the MahaRERA is also of the view that even if all the factors pointed out by the respondent due to which the project got delayed are taken into consideration, there was enough time for the respondent to complete the project before the relevant provisions of RERA came into force on 1st May, 2017 however, the respondent has failed to do so. It shows that the respondent has violated the provisions of section 18 of the RERA. Hence, the complainant is entitled to seek interest on account of the said delay under section 18 of the RERA.

22. As far as the relief sought by the complainant for revocation of this project registration under section 7 of the RERA, it is pertinent to note that as per the provision of section 7 of the RERA, the MahaRERA registration may be cancelled if the promoter makes default in doing anything required by or under the RERA or if the promoter violates any of the terms or conditions of the approval given by the competent authority or if the promoter is involved in any kind of unfair practice or irregularities as specified under section 7(1)(a) to (c) and (A) and (B) of the RERA. However, in the instant case, the complainant has not produced any cogent documentary evidence to show that the respondent has violated any of the terms or conditions stipulated in the provisions of section 7 of the RERA. Therefore, the prayer for revocation of projects registered by the respondent with the MahaRERA sought by the complainant is devoid of any merits. Even, the complainant has not established the fact that the respondent is involved in any kind of unfair trade practice or irregularities by submitting any order passed by the competent court of law. Therefore, the relief sought by the complainant under section 7 of the RERA for revocation of the MahaRERA project registration granted to the respondent stands rejected. Needless to state here that the project is still valid and has completion date of 30-06-2024. Moreover, in this case, the complainant on one side are seeking relief under section 18 of the RERA and at the same time they are seeking contradictory reliefs towards revocation of the project registration.

23. In view of the aforesaid facts, the following order is passed:

a. The present complaint is partly allowed.

b. The claim of rent sought by the complainant stands rejected in view of the observations made in the aforesaid para-no. 14.

c. The respondent promoter is directed to pay interest for the delayed possession to the complainant from 1-05-2017 till the actual date of possession of the said flat to the complainant for every month on the actual amount paid by the complainant towards the consideration of the said additional area (325 sq.fts) at the rate of Marginal Cost Lending Rate (MCLR) of SBI plus 2% as prescribed under the provisions of section 18 of the RERA and the Rules made thereunder.

d. Needless to state here that the actual amount as provided under section 18 of the RERA means the amount paid by the complainant towards the consideration of the said additional area only, excluding the stamp duty, registration charges and taxes etc. paid to the government.

e. However, in view of the mitigating circumstances beyond the control of the respondent and also to ensure that the said project is not jeopardized due to the outflow of finances and is completed keeping in mind the interest of the other buyers of the said project at large, the amount of interest payable by the respondent to the complainant be paid after obtaining full occupancy certificate. The respondent is at liberty to adjust the said amount of interest payable by it to the complainant with the consideration amount payable by the complainant (if any), at the time of possession and the balance amount if any payable by either party be paid at the time of possession

f. With regard to the payment of interest to the complainant, 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, 18th May, 2020 and 6th August, 2021 issued by the MahaRERA and the Notification/Order which may be issued in this regard from time to time.

24. With the above directions, the complaint stands disposed of.