PER S.S. SANDHU, MEMBER (A)

1. Aggrieved by order dated 28.11.2018, passed by learned Chairperson, MahaRERA (hereinafter 'the Authority') in complaint No. CC006000000056095, Appellants have filed this appeal.

2. Appellants booked an apartment bearing No. 8-2502 in the Respondents' project, 'RNA Metropolis' situated at Sewree (West), Mumbal. Letter of allotment was lssued on 15.10.2010. According to Appellants, they have already pald amount more than Rs. 64 lacs out of total consideration of Rs. 1.89 Crore. Respondents allegedly promised to hand over possession by 2014-15. As Respondents failed to handover possession, Appellants approached the Authority for seeking refund of the entlre amount with interest and compensation of Rs. 20 lacs towards mental agony/torture along with cost of complaint of Rs, 1 lac. It was also prayed that pending disposal of complaint, Respondents be restrained from creating third party rights in the subiect flat as well as one car parking.

3. The Authority explained to the Appellants'Counsel that no order of refund with interest as per Section 18 of thecan be passed since there is no agreement for sale executed and registered between the parties. Appellants were also informed that in a previous complaint filed in the same project, the Authority has already directed the Respondents to hand over possession by May 2022. The Authority assured the same relief to Appellants also if they intended to continue in the project. However, Appellants chose to withdraw from the project and prayed for refund of the amount paid along with Interest. Upon this, the Authority passed the impugned order directing therein to refund the amount in accordance with terms and conditions of the allotment letter. This order is impugned by Appellants in this appeal.

4. Appellants have challenged the order on the following grounds:

(i) The Authority's singular emphasis on execution of agreement for sale is contrary to the view held by this Tribunal in the order dated 12.04.2018 passed in the case of Manjit Singh Dhaliwal & Ors. Vs. IVPD in Appeal No. 4T006000000000017 by treating the allotment letter at par with sale agreement. The facts of the sald case are slmilar to the instant case;

(ii) Promoter has not objected that allotment letter does not meet the requirement of a regular agreement for sale;

(iii) The Authority did not consider that promoter has defied various orders passed by other forums such as National Consumer Disputes Redressal Commission (NCDRC) by failing to execute agreement for sale;

(iv) The Authority appears to hold an erroneous view contrary to the that Appellants would be eligible for refund only on default committed as per new time line i.e. May, 2022 declared by Respondents on MahaRERA Portal;

(v) The terms of the allotment letter do not allow Appellants to sell the flat or exit from the project until 50% amount of the consideration price is paid

Based on the above grounds, Appellants sought to grant reliefs as prayed for in the complaint.

5. Heard learned Counsel for Appellants whereas none appeared for Respondents throughout the appeal proceedings as was the case in the complaint proceedings also, Learned Counsel for Appellants argued that in April 2016 Respondents had sent e-mail to various flat purchasers to ascertain their willingness to exit from the project. However, later on Respondents have neither apprised Appellants about exlt policy nor handed over the possession. Also, that Respondents have stopped giving any response to various communications sent by Appellants. Appellants also submitted that as also revealed from the order dated 23.10.2017 (Exhibit'U') passed by NCDRC in complaint No. 1105 of 2016, other similarly placed flat purchasers were also induced and misrepresented by Respondents that possession will be handed over by 2014-t5 and in some cases by 2016. In the aforesaid order, the NCDRC inter alia direded Respondents to hand over possession within 3 years, pay compensation, execute and register agreement for sale within 3 months etc. However, Respondents did not comply with directions of NCDRC. They also did not respond to e-mails dated 23.01.2018, 11.03.2018 and 10.04.2018 sent by Appellants to Respondents to know policy for exiting the project and to refund their amount. This shows that Respondents are not interested in refunding the amount even though there is delay in handing over possesslon.

6. After considering the submissions of Appellants and on perusing documents on record, the impugned order including copy of complaint along with other documents submitted by Appellants, following points arise for our determination:

Points Findings

1. Whether Appellants are entitled for refund of amount paid with interest/ compensation on account of delay in possession Affirmative

2. Whether impugned calls for interference Affirmative

3. What order As per final order

The Reasons for the findings as above are given as below.

7. Documents on record and submissions of the Appellants reveal that Appellants booked the flat in the year 2010. Admittedly no agreement of sale is executed and no date of possession is mentioned either in the allotment letter dated 15.10.2010 or in any of the communications exchanged between the parties. But, in our view, this should not act as disadvantage to the Appellants. It may be noted that transaction between the parties pertains to the pre-RERA period when the Maharashtra Ownership of Flats Act, 1963(MOFA) was in vogue. Section 4(1A) (ii) of the MOFA mandates that a developer shall execute a written agreement for sale before receiving 20o/o amount of the total sale price of the flat and also mention a date of possession therein. It is seen that Appellants have paid more than Rs. 64 lacs which is more than 20olo of the total value of flat of Rs. 1.89 Crore. It may also be noted that even Section 13(2) of the RERA also provides for execution of similar agreement prior to receipt of 10o/o of the total value of the flat.

It is thus clear from above that Respondents have committed violation of the said provisions of MOFA and also of RERA by not executing the requisite agreement for sale. Therefore, I do not agree with the verdict of the Authority as it would amount to giving advantage to Respondents of their own wrong. Moreover, it is also seen that the directions by the Authority appear to be non-implementable as no conditions as such are prescribed in the allotment letter as to govern the refund of the amount, Even though we find that Appellants' reliance on the order dated 12.04.2018 passed by the learned predecessor of this Tribunal in the case of Manjit Slngh Dhaliwal and Ors. (supra) is of no consequence as the same is based on dissimilar facts, we are of the opinion that Appellants are entitled for refund in the light of the view held by Hon'ble Supreme Court in the case of M/s Foftune Infrastructure Vs, Trevor D'lima (2018) 5 SCC 442 [LQ/SC/2018/320] . ln the said case Hon'ble Supreme held that where no date of possession is mentioned in the agreement, the possession shall be handed over within a reasonable period of 3 years. It is undisputed that Appellants booked the flat in October 2010 and they were assured of possession in the year 2014-15. Howeve6 Respondents have not only not handed over possession so far but have also unilaterally declared on MahaRERA portal the likely date of possession as May 2022 without consent or willingness of Appellants, Such a date is not binding on the Appellants. Accordingly, we find that the Respondents have failed to handover possession within a reasonable period.

8. We also note that while examining the claim of Appellants, the Authority did not consider several documents submitted on record by Appellants which showed that Respondents are not only irresponsive in their conduct but also have least regard for their legal obligations towards flat purchasers. Correspondence submitted by Appellants shows that though they have received huge amounts from Appellants since more than 9 years they have stopped even responding to the communicatlons sent by Appellants with regards to status of project. Also, they have failed to comply with the order of NCDRC which inter alia required them to execute the agreement with other allottees of the same project. They did not bother even to appear in the proceedings before the Authority as well as in appeal proceedings despite having due notice, Such an indifferent attitude of Respondents who have gone into inaction by declaring unreasonable date of possession on the MahaRERA portal calls for serious cognizance of the Authority. We should not be oblivious of the fact that RERA as a welfare leglslation, has been enacted mainly to safeguard the interests of allottees. Mere non-mentioning of date of possession or non-execution of agreement for sale cannot be allowed to operate in favour of a developer who, like Respondents, is not responsive to the cause of allottees.

9. In view of above discussion and observations, Appellants are entitled for refund of their amount with interest on account of inordinate delay in possession and the impugned order deserves to be set aside. Accordingly, we answer the Point Nos, 1 and 2 in the affirmative and pass the final order as follows:

ORDER

1. Appeal is allowed.

2. Impugned order dated 28,11.2018 is set aside.

3. Allotment letter of the flat booked by Appellants stands cancelled.

4, The Respondents shall refund the amount paid by Appellants with interest @ 2olo above the State Bank of India's highest Marginal Cost of Lending Rate from the date of payment of the said amount till realisation of the amount.

5. The charge of the amount shall remain on the respective flat tlll the realisation of the above amount

6. No order as to costs

7. Copy of this order be sent to the parties and the Authority as per Section 44(4) of the RER Act, 2016,