1. In the Interim Application No.41/2021 filed by the Petitioner/ Complainant Association, it is submitted by the Petitioner that during the pendency of C.No.212 of 2019, the Respondent herein handed over maintenance of the common areas and facilities in Phases 2, 3 & 4 of its Project to the Complainant Association with effect from 01.02.2019. From then onwards, the Complainant Association has been performing these functions without any let or interruption in respect of 848 apartments in Phases 2,3 & 4.

2. The Petitioner/Complainant Association has also stated that as per Item No.B.6 of Annexure I at Page 12 of the identical “Agreement for Sale and Construction” executed by the individual allottee/apartment owner with the Respondent herein, each of them was also required to pay “facility maintenance” for their respective apartment @ Rs.1.50 per sq.ft. per month (for six months) in advance, depending upon the “super area” of their respective apartments.

3. Further the Petitioner/Complainant Association has stated that as per Clause 10.4 of these identical “Agreement for Sale and Construction” executed by the individual allottee/apartment owner, each of them was required to sign a separate “maintenance Agreement” for maintenance of the common areas. It is also submitted by the Petitioner/Complainant Association that also as per Clause 4.8 of these identical “Agreement for Maintenance” executed by the individual allottee/apartment owner with the Respondent herein, it was agreed that the above said Corpus Fund of Rs.25,000/- as well as the “six months advance payment of maintenance charges” paid by the individual allottee/apartment owner would be transferred by the Respondent herein to the apartment owners’ Association which takes over the maintenance of the Complex.

4. The Petitioner/Complainant Association has also stated that even after the lapse of more than two years from handover of the maintenance to the Petitioner/Complainant Association, the Respondent has failed to transfer to the Petitioner/Complainant Association the Corpus fund and the “six months advance payment of maintenance charges” of the remainder of the Allottees/apartment owners who have been regular in payment of the maintenance charges levied by it against their apartments.

5. Therefore, the Petitioner/Complainant Association has prayed this Authority to direct the Respondent to “deposit into court” with this Authority the following transfers that remain long overdue to the Petitioner/Complainant Association in respect of Phases 2, 3 & 4 and to Dewy Terraces (Phase 1) Flat owners’ Welfare Association in respect of Phase 1 from 01.02.2019 onwards:

1) “Corpus Fund” of Rs.25,000/- paid by such of those allottees/apartment owners of Phases 2, 3 & 4 having no pending maintenance charges payable to the Respondent as of date of its abandonment of performance of such services on 20.12.2018; together with interest thereon @ 10.05 per cent per annum from 01.02.2019 till date of deposit;

2) “Six months advance payment of Maintenance Charges” paid by such of those allottees/apartment owners of Phases 2, 3 & 4 having no pending maintenance charges payable to the Respondent as of date of its abandonment of performance of such services on 20.12.2018; together with interest thereon @ 10.05 per cent per annum from 01.02.2019 till date of deposit;

3) “Corpus Fund” of Rs.25,000/- paid by such of those members of the Petitioner/Complainant Association as allottees/apartment owners of Phase 1 having no pending maintenance charges payable to the Respondent as of date of its abandonment of performance of such services on 20.12.2018; together with interest thereon @ 10.05 per cent per annum from 01.02.2019 till date of deposit; and

4) “Six months advance payment of Maintenance charges” paid by such of those members’ of _ the Petitioner/Complainant Association as allottee/apartment owners of Phase 1 having no pending maintenance charges payable to the Respondent as of date of its abandonment of performance of such services on 20.12.2018; together with interest thereon @ 10.05 per cent per annum from 01.02.2019 till date of deposit.

6. In the I.A.No.42 of 2021 filed by the Petitioner/Complainant Association, it is submitted that pursuant to the hand-over of the maintenance of the common areas and facilities in Phase 2, 3 & 4 by the Respondent to the Petitioner/Complainant Association and based on the above contractual provisions the Petitioner/Complainant Association has been raising and issuing monthly invoices to the Respondent towards monthly maintenance charges on the unsold apartments held by the Respondent. Citing the prior default of the allottees/apartment owners, the Respondent remains in chronic and willful default of payment of all the above said maintenance charges. The Petitioner/Complainant Association has further submitted that as on 30.06.2021 the Respondent holds a total of 99 unsold Apartments with it and the arrears of maintenance charges payable by it on the above said 99 unsold Apartment units and 8 sold out units amounts to Rs.67,62,847/-

7. The Petitioner/Complainant Association has further submitted that during the period from January. 2019 to June, 2021, the Respondent has sold a total of 26 apartments and appropriated the entire sale proceeds thereof totaling Rs.8,30,74,254/- without settling the arrears of maintenance dues payable to the Petitioner/Complainant Association even in respect of these sold units.

8. Also the Petitioner/Complainant Association has stated that in fact, under the Arbitral Award dated 22.06.2019 in Arbitration No.1 of 2017 filed by Dewy Terraces (Phase 1) Flat Owners’ Welfare Association against this Respondent [Enclosure No.74, Page 213, additional typed set of documents dated 05.10.2020], the Learned sole Arbitrator has recorded the willingness of the Respondent herein on the very same issue and had directed that - “The Respondent Company is willing to pay the maintenance charges. In this regard direction is given to the Respondent Company to pay maintenance charges from 01.02.2019 for the unsold flats within two weeks from the date of receipt of the order”. This Arbitral Award dated 22.06.2019 has become final and binding on the Respondent herein as both the parties to the Arbitration No.1 of 2017 have not filed any appeal so far.

9. Therefore, the Petitioner/Complainant Association has prayed in this I.A.No.42 of 2021 that this Authority to direct the Respondent herein to “deposit into court” to the account of this Regulatory Authority, the arrears Of Maintenance charges charged by the Petitioner/Complainant Association herein on 99 unsold apartment held and possessed by it, for the period from 01.02.2019 to 30.06.2021 amounting to Rs.67,62,847/- together with interest thereon @ 10.05 percent per annum till date of deposit, without further delay.

10. In the I.A.No.43 of 2021 filed by the Petitioner/Complainant Association, it is prayed by Complainant Association that this Authority to pass an interim order of attachment before judgement against the above said 99 unsold apartments held by the Respondent herein in Phases 2, 3 and 4 of its Real Estate Project.

11. In the Common preliminary Counter Affidavit filed by the 1* Respondent, it is stated that in the instant case, the main issue which is under the active consideration of this Authority in C.No.212/2019 is as to whether this Respondent is liable to register Phase 1 to 4 of the Cresent ParC Dewy Terraces OMR Road real estate project under the provisions of the RERA Act, 2016 and until such time, no relief can either be claimed before this Authority or adjudicated by this Authority. Therefore, the present petitions are premature and the same are liable to be dismissed by this Authority.

12. Also the 1% Respondent has submitted that as per the well settled position of law, the interim applications cannot be filed for adjudication beyond the scope of the main prayer. The 1* Respondent has also stated that in the present, this Authority is yet to decide the issue as to whether the prayer in the present complaint is to be allowed or not. The Petition/Complainant gets right to file the present petitions only when this Authority decides the Complaint in favour of the Complainant, therefore, the present petitions deserve no consideration at this stage and the same are liable to be dismissed as premature.

13. The 1* Respondent has also submitted that the Agreements dated 31.05.2012 and 06.11.2012 based on which an amount of Rs.50,000/- was collected from purchasers for electricity and water supply charges which constitutes the 4 cause of action for the complaint (para 5 of the Affidavit of the Petitioner). Undisputedly all these causes of action for the present complaint relate much prior to the commencement of the RERA Act and hence such issues cannot be agitated before this Authority.

14. It is also submitted by the 1* Respondent that a huge amount of about Rs.3,83,06,651/- has been overdue towards maintenance charges as on 31.05.2018 from 645 members of the Petitioner/Complainant Association including most of the office bearers of the Petitioner/ Complainant Association.

15. In the Common Additional Counter Affidavit, the 1* Respondent has submitted regarding the prayers pertaining to the Phase 1 of the project, the 2™ Respondent in the above Complaint filed arbitration proceedings against the Respondent herein in Arbitration No.1 of 2017 before the Hon’ble Sole Arbitrator presided by the Hon’ble Justice P.P.S. Janarthana Raj (Retd.). it is further submitted that in the said - arbitration proceedings, the Respondent herein succeeded and an arbitration award dated 22.06.2019 was passed in favour of the Respondent which had attained finality. Therefore, the 1 Respondent has submitted that the prayers in the present petition pertaining to Phase 1 of the project are not maintainable and hit by the doctrine of resjudicata.

16. The 1* Respondent has also submitted that the members of the Complainant Association and the Respondent had entered into maintenance agreement with each of the members of the Complainant Association while handing over the possession of the respective apartments, therein the members of the Complainant Association and the Respondent herein have agreed several clauses in which clause 4.8 is the crucial clause of the maintenance agreement to present applications, which is extracted by the 1* Respondent as below:

“The Party of the Second Part has deposited a sum of Rs.11,349/- (Rupees Eleven Thousand Three Hundred and Forty Nine) being an advance equivalent to six months maintenance charges and Party of the Second Part has agreed to pay the maintenance charges on the basis of quarterly at the end of each quarter. Further the Party of the Second Part has deposited a sum of Rs.25,000/- (Rupees Twenty Five Thousand) being corpus fund. It is agreed that on expiry of termination of this agreement, the Party of the First Part agrees to transfer the corpus fund and advance deposit of maintenance charges to the RWA, which takes over the maintenance of the said complex, after making deduction of the cost of equipments/appliances and involved in such complex and to be entitled to Part of the Second Part, security/deposit/advance paid to any authority/agency and any outstanding maintenance charges or other fee, penalty or interest and the Party of the First Part sole description therefrom.”

17. The 1* Respondent has also submitted that the above extracted Clause of the maintenance agreement clearly envisages that the Respondent have to transfer the corpus fund and advance maintenance to the association after handing over the project to the Complainant as per the aforesaid terms of the maintenance agreement which was also admitted by the Petitioner/Complainant in the present petitions. However, the members of the Complainant Association have not paid their maintenance regularly to the Respondent and there are huge arrears of maintenance on the part of the members of the Complainant which are pending, hence the Complainant and its members are liable to pay nearly more than Rs.73,12,229/-

18. The 1% Respondent has further submitted that it had received corpus fund and advance maintenance charges from the members of the Complainant Association for a sum of Rs.3,90,30,614/- but the outstanding of the maintenance charges by the members of the Complainant association to the Respondent is comes around Rs.4,63,42,843/- as on handing over the project to the Complainant. Hence, the 1 Respondent has submitted that the members of the Petitioner/Complainant are liable to pay a sum of Rs.73,12,229/- to the Respondent as a maintenance charge after giving credit to the corpus fund collected. Therefore, the Respondent herein is not entitled to transfer any corpus fund and/or advance maintenance to the members of the Complainant.

19. The 1* Respondent has also stated that the aforesaid claims being contractual in nature and which needs full-fledged trial to ascertain and reconcile the accounts, the same is outside the scope of Section 31 of theand hence the present applications are not maintainable either on facts or on law.

20. The 1* Respondent has also denied that due to poor quality of maintenance services rendered by the nominated agents of the Respondent herein, majority of the allottee/apartment owners defaulted in payment agreed upon the maintenance charges. The 1* Respondent has further submitted that it had provided the club house for the members of the Complainant with regard to Phase 1 to 4 as well as the facilities which has WTP, STP, etc., are provided to the members of the Complainant Association with the best agents till the handing over the project to the Complainant Association. It is also mentioned that the Respondent herein gifted the land measuring 3 acres comprised in Survey Nos.4/1B, situated at Thiruporur village, Thiruporur Taluk, Chengalpattu District (EB gifted lands) to the electricity board for erecting the feeding substation in the EB gifted lands to supply the electricity power to the present project and other project which was not developed by the Respondent till today. However, the Complainant is raising the frivolous and vexatious allegation against the Respondent herein for the reason known to them. The Respondent has also submitted that the Complainant itself admitted that the majority of the members of the Complainant defaulted in payment of the agreed amount upon maintenance charges.

21. Therefore, the Respondent has submitted that it is clearly admitted by the Complainant that the majority of the members of the Complainant Association has defaulted the maintenance charges and committed breach of the terms of the maintenance agreement, the Respondent herein are entitled to deduct the outstanding maintenance charges from the corpus fund and the advance maintenance.

22. In the Common Counter Affidavit filed by the 2"° Respondent, it is submitted by the 2° Respondent that though the prayers sought for in the Interim Applications namely I.A.No.41, 42 & 43 of 2021 are not against the 2™ Respondent, the 2" Respondent is constrained to file this counter affidavit only to point out that the main complaint i.e. C.No.212 of 2019 filed by the Petitioner before this Authority is for seeking for direction against the 1* Respondent to register the incomplete Phases 14 of the Cresent ParC Dewy Terraces OMR Road Real Estate Project under Section 4(1) & (2) of the RERA Act. The 2™ Respondent has further stated that the Petitioner has filed several interim applications seeking for various interim reliefs thereby causing serious delay to the effective adjudication and early disposal of the main Complaint. Also the 2"° Respondent has stated that the registration of the project is the first and foremost legal issue which needs to be adjudicated by this Authority in view of the directions issued by the Hon’ble High Court in its order dated 16.02.2021 in C.M.S.A.No.27 of 2020. The 2™ Respondent has also submitted that the question as to whether the project is liable to be registered under the RERA Act is the primary question which needs to be decided in the Complaint filed by the Petitioner. The reliefs sought for in the present applications can be decided at the time of final disposal of the main Complaint.

23. In the Common Rejoinder filed by the Complainant Association to the Counter Affidavit of 1* Respondent, it has been submitted that the Petitioner /Complainant Association is a separate and distinct legal entity which was not a party to the contract privately executed between the Respondent/1* Respondent herein and the individual Allottee/Apartment Owner. As such it cannot by any means be foisted with the personal contractual liability of its members, much less the other non member Allottees/Apartment Owners in the project. It is also stated that no privity of contract exists between the Respondent/1* Respondent herein and the Petitioner/Complainant Association in respect of the payment of these past time barred arrears of maintenance due remaining unpaid by the individual Allottees/Apartment Owners.

24. The Petitioner/ Complainant Association has also submitted that in the context of preliminary objection raised by the 1* Respondent has referred to the Section 36 of RERA Act which is extract below:

“Where during an inquiry, the Authority is satisfied that an act in contravention of this Act, or the rules and regulations made thereunder, has been committed and continues to be committed or that such act is about to be committed, the Authority may, by order, restrain any promoter, allottee or real estate agent from carrying on such act until the conclusion of such inquiry of-until further orders, without giving notice to such party, where the Authority deems it necessary”.

25. Similarly, the Complainant Association has drawn attention to Section 37 of RERA Act which empowers this Authority to issue interim directions ad it is extracted below:

“The Authority may, for the purpose of discharging its functions under the provisions of this Act or rules or regulations made thereunder, issue such directions from time to time, to the promoters or allottees or real estate agents, as the case may be, as it may consider necessary and such directions shall be binding on all concerned”.

26. In the common Rejoinder filed by the Complainant Association to the common Counter Affidavit of 2"° Respondent, it has been submitted by the Complainant Association that under the Arbitral Award dated 22.06.2019 in Arbitration No.1 of 2017 filed by the Dewy Terraces (Phase1) Flat Owners’ Welfare Association against the 1* Respondent herein, the Learned Arbitrator had directed as follows:

“6. Return of Corpus Fund and six months advance — Issue No.36 & 38”.

If the said argument is accepted one who pays the maintenance charges regularly cannot get refund because of arrears of others. It amounts to penalizing the members who pays regularly and such member cannot be made to suffer because of the arrears of others. Clause 4.8 does not contemplate the same. Hence the Respondent Company has to refund the amount to RWA after deducting outstanding charges of each member because the agreement is entered into between an individual member and Respondent Company. The refund has to be given only to the RWA. Refund cannot be given to individual members. In computing the refund the individual members arrears alone taken into consideration. So taking into consideration the same I direct the Respondent Company to refund the corpus amount as well as the six months maintenance charges collected from the members after deducting arrears of outstanding maintenance charges of the individual only and not whole arrears of the Association member to the RWA. I once again make it clear total amount of arrears of all the members cannot be taken into consideration in computing the refund. This exercise will have to be done within 6 weeks from receipt of the order and the Claimant Association is entitled only the refund of the members alone”.

27. The Complainant Association has also stated that in fact the Arbitral Award dated 22.06.2022 in Arbitration No.1 of 2017 filed by Dewy Terraces (Phase-1) flat Owners’ Association against the 1° Respondent herein also records the willingness of the 1* Respondent to pay the same and it is extracted below:

“Unsold Flats — Issue No.23”:

In this regard it is stated there are 304 flats in Phase-1. At the time of oral arguments it is stated that 296 flats are sold out of 304 flats. The remaining 8 unsold flats are with the Company. The Claimant association has taken over the Maintenance on 19.01.2019. The Respondent Company is willing to pay the maintenance charges. In this regard direction is given to the Respondent Company to pay maintenance charges from 01.02.2019 for the unsold flats within two weeks from the date of receipt of order”.

28. This Authority has examined the Interim Application Nos.41, 42 and 43 of 2021, the Preliminary Counter Affidavit and Common Additional Counter Affidavit filed by the 1 Respondent Promoter, Common Counter Affidavit filed by the 2" Respondent Association, the common Rejoinder filed by the Complainant to the Counter Affidavit filed by the 1% Respondent and the 2" Respondent and the arguments and written submission of arguments filed by the parties, carefully.

29. The 1* Respondent Promoter has challenged the maintainability of the IAs on the ground that the main prayer in the Complaint for registration of this real estate project is under the active consideration of this Authority.

30. The 1% Respondent Promoter has also submitted that the prayers in the IAs pertaining to Phase-1 of the project are not maintainable and hit by the doctrine of res judicata, since the maintenance related the issues of Phase 1 of the project are covered by arbitral award dated 22.06.2019.

31. The Respondent Promoter has also highlighted the overdues towards the maintenance charges from a large number of Allottees who ere members of the Complainant Association.

32. The Hon'ble Tamil Nadu Reai Estate Appellate Tribunal in its order in Appeal No.75/2019 dated 09.11.2020 in Olympia Grande Apartment Owners Welfare Association Vs. M/s. KSM Nirman Private Limited has held that the RERA provisions specifically contemplated with regard to redressal of grievances under the RERA Act irrespective of their registration since the jurisdiction of Civil Court is also barred. Also the Hon’ble Supreme Court of India in its order dated 11.11.2021 in Civil Appeal Nos.6745 — 6749 of 2021 (Arising out of SLP (Civil) Nos.3711 — 3715 of 2021) in M/s. Newtech Promoters and Developers Private Limited versus State of UP and Others, etc. has held that the RERA Act, 2016 is retroactive in character. Therefore, this Authority holds that the Interim Applications are maintainable.

33. Accordingly, this Authority holds that the IAs are maintainable since they are related to handing over of corpus fund and advance deposit of 6 months maintenance charges to the Association of Allottees on the ground of maintenance of common areas of this project having been already handed over to the 2" Respondent Association in respect of Phase 1 and the Complainant Association in respect of Phase 2, 3 and 4 of this real estate project.

34. As far as handing over of corpus fund to the respective Association of Allottees is concerned, the corpus fund is meant for unforeseen major capital expenditure/replacement of equipments and major repairs which are distinct and different from the routine maintenance expenditure relating to common areas.

35. In this project, Agreements for Maintenance have been executed by the Respondent Promoter with the individual Allottees. As per Clause 4.8 of this Agreement, the Respondent Promoter has to transfer the corpus fund as well as the interest free security deposit (6 months advance maintenance deposit) to the Association of Allottees which takes over the maintenance of the Complex.

36. This Authority has also held in its earlier Order dated 27.04.2022 in Complaint No.166 of 2021 that the corpus fund and maintenance charges are distinct and different and the maintenance dues cannot be deducted from the corpus fund since the purpose of the corpus fund is distinct from the routine maintenance.

37. Therefore, this Authority will proceed to pass orders in these Interim Applications treating the corpus fund and interest free security deposit (advance maintenance deposit) separately.

38. As the maintenance related issues of Phase 1 of this real estate project have already been covered by the Arbitral award, this Authority will confine its order only to the then members of the Complainant Association who are Allottees of Phase 1 and who were not members of the 2™ Respondent Association at the time of arbitral award.

39. In respect of Phase 2, 3 and 4 of this real estate project, there are 848 apartments who have contributed Rs.25,000/- each which works out to Rs.2,12,00,000/- The details are given in Table 3 on page No.46 of the written submission dated 09.10.2022 relating to I.A.No.41/2021 filed by the Complainant Association on 17.10.2022.

40. Therefore, this Authority directs the 1* Respondent Promoter to handover the corpus fund amounting to Rs.2,12,00,000/- to the Complainant Association before 31.03.2023 along with actual interest earned on this corpus fund till the date of payment to the Complainant Association.

41. As far as the 50 members of the Complainant Association in Phase 1 are concerned, the Authority directs the 1* Respondent Promoter to handover Rs.12,50,000/- before 31.03.2023 to the 2" Respondent Association which is maintaining the common areas in Phase 1 along with the actual interest earned till the date of payment to the 2"° Respondent Association.

42. As far as the handing over of interest free security deposit which is equivalent to advance deposit of 6 months maintenance charges to the respective association of Allottees is concerned, this Authority issues the following directions.

(i) In respect of Allottees who are not in default of maintenance charge dues, the Respondent Promoter shall handover the interest free Security Deposit/6 months advance payment of maintenance charges to the Respective Association of Allottees which has taken over the maintenance of common areas in this real estate project. This shall be done before 31.03.2023.

(ii) The nomenclature of this Security Deposit itself is interest free security deposit (IFSD) as per Clause 4.8 of maintenance and electricity supply Agreement, the question of payment of interest thereon does not arise.

(iii) In respect of Allottees in this project who have dues of maintenance charges as on the date of handing over of maintenance of common areas to the respective Association of Allottees, this Authority directs the 1* Respondent Promoter to deduct the maintenance charges due of the individual Allottees from the interest free security deposit of the respective individual Allottees and handover the balance amount in the interest free security deposit to the respective Association of Allottees. This shall be done before 31.03.2023.

(iv) As rightly pointed out in the Arbitral Award, the question of lumping/consolidating the maintenance dues of all Allottees and setting it off against the total amount of interest free security deposit available with the 1* Respondent Promoter does not arise, since the maintenance Agreement is executed between the individual Allottees and the 1* Respondent Promoter, Therefore, each individual Allottee’s interest free security deposit has to be settled separately.

(v) As far as Phase 1 of this real estate project is concerned, directions of this Authority relates to those Allottees in Phase 1 who are not covered by the arbitral award.

(vi) As far as the prayer in IA No.42/2021 is concerned, this Authority directs the 1* Respondent Promoter to pay the arrears of maintenance charges, charged by the respective Association of Allottees relating to unsold apartments in the respective Phases for the period from the date of handing over of maintenance of common areas to the respective Association of Allottees till they are sold before 31.03.2023 along with interest at 8.75% which is the SBI Marginal Cost of Lending Rate of interest (MCLR) plus 2% i.e. 10.75% per annum.

(vii) As far as I.A No.43 of 2021 is concerned, the Complainant Association is at liberty to move this Authority by way of an Execution Petition, if the Respondent Promoter fails to comply with the directions of this Authority in this Order before 31.03.2023.

43. With the above findings and directions, the Interim Applications Nos.41, 42 & 43/2021 in C.No.212/2019 are disposed of.