PER : SHRIRAM R. JAGTAP, MEMBER (]')

1. This appeal arises from the order dated 18th July 2018 passed by learned Chairperson, MahaRERA in Complaint No.CC006000000044011 filed by allottee, whereby learned Chairperson, MahaRERA refused to grant relief sought by allottee in his complaint.

2. Appellant and respondent hereinafter will be referred to as complainant and developer respectively.

3. Facts as gathered from the record indicate that complainant has purchased an apartment bearing No 3001 in Wing-G of the respondent's project "Rustomjee Azziano" situated at Thane' Complainant filed complaint alleging therein that developer agreed to pay pre-EMIs of home loan until he takes possession of flat On 18th February 2018 representative of developer informed the complainant by email that the developer has received occupation certificate for the flat and flat is complete in all respects The developer has raised demands for full and final payment including the charges for common amenities like Gym and Club-house The representative of developer further apprised complainant that developer would pay interest on home loan till 18th February 2018 since they have already sent final demand letter. Soon after receipt of email, complainant visited the flat and found that developer had not completed the internal work in the flat and the subject flat was not habitable' The developer was supposed to carry out internal works in the flat like (1) wall mounted western WC, (2) wash basin, (3) kitchen sink, (4) flooring and tiling work in the living room before issuance of final demand letter' Apaft from the above internal works none of the common amenities were ready' yet developer was demanding full and final payment including costs for common amenities from the complainant'

4. It was also alleged in the complaint that on taking all these issues with the representative of developer, he committed to complete the same after developer receives full and final payment' In reliefs' complainant sought direction to developer to reimburse EMI till the poect is completed.

5. The developer has appeared in the complaini and remonstrated the claim of complainant contending that developer has obtalned occupation ceftificate for the said project in February 2018 and possession of the apartment along with amenities, was offered to complainant in accordance wlth the terms and conditions of agreement for sale. As per agreed terms between the parties, the developer was required to pay pre-EMIs only till the last and final demand is raised by the developer, which has been raised after receipt of occupation cetificate from the competent planning Authority' The developer has specifically contended that developer has not violated any of the terms and condltions of agreement for sale'

6. After hearing the parties. the learned Chairperson, MahaRERA (for short "Authority") passed the impugned order holding that respondent is not liable to pay pre-EMIs after occupation certiflcate has been received and the demand for full and final payment of consideration price has been raised

7. We have heard the arguments of Adv Ms. Mugdha Sahal for appellant and Adv. t'4r. Abir Patel for respondent.

8. The skeleton of the argument of learned Adv. Ms lvlugdha Sahal is that allottee booked a flat bearing No.3001 in Wing-G of respondent's project "Rustomjee Azziano" in lYarch 2016 The developer committed to hand over possession of the subject flat by 30th lune 2017 with grace period of 12 months, and at the same time the developer also committed to pay interest on bank loan till issuance of flnal payment demand letter' In March 2018 the appellant borrowed loan of Rs.1,37,00,000/- (Rupees one Crore Thirty Seven Lakhs Only) from HDFC Ltd. The developer has executed document known as "Cost Sheet" in favaour of allottee, whereby the developer agreed to pay interest on the bank loan till issuance of final demand letter of possession. However, in the month of February 2018, the developer deposited only Rs.62,991/- in the loan account of allottee' On 16th February 2018 the developer issued final demand letter to the allottee and raised a demand of Rs.26,95,528/-. After issuance of the said demand letter, the developer immedlately stopped paying pre-EMIs'

9. It is further argued that soon after receipt of final demand letter, the allottee visited the flat on 22nd February 2018 and found following inflrmities, shortcomings, and missing amenities in the flat :

(1) wall mounted English WC (missing in both bathrooms)'

(2) washbasins and commodes (missing in both bathrooms).

(3) Kitchen sink

(4) Flooring and tlllng work in the living room'

(5) Electric fittings.

(6) IncomPletePainting

(7) Common amenities like Gym and Club house'

(8) Balcony windows were not installed properly'

10. On 23'd February 2018 the allottee communicated the aforesaid missinq fixtures and fittings in the subject flat to the respondent/developer by email. On 25th February 2018 the developer replied by email that missing flxtures and fittings will be provided once the balance payment will be paid by the appellant. This signifies that the respondent failed to provide basic fixtures and fittings in the subject flat. The flat was not in habitable condition The conduct of the respondent constrained the appellant to file complaint'

11. It is further argued that the developer installed fixtures and fittings in the subject flat by 13th May 2018. However, the developer as per his own convenience stopped to pay pre-El4Is and made allottee to bear the burden of payment of pre-EMIS for 4 months. Adv' Ms' Mugdha Sahal has sorely submitted that the brochure issued by respondent clearly indicates that the developer promlsed to pay preEMI until the allottee takes possession of flat. It is not in dispute that the developer handed over possession of the subject flat to allottee in July 2018. Therefore, the respondent is liable to pay pre-EMI till luly 2018. The developer is liable under Section 19(4) of RERA to refund of amount paid alongwith interest as developer offered possession of the flat to allottee whlch was not ready for possession. The developer is also liable under Section 12 of RERA for failure to fulfill commitment of payment of pre-EMIs till issuance of flnal demand letter' It is not in dispute that the allottee took possession of the subject flat in July 2018' Therefore, the respondent is liable to pay compensation to allottee under Section 18(3) of RERA and also liable to pay pre-EMIs for 4 months to allottee. With these submisslons, the learned Advocate for allottee prayed to grant reliefs souqht in the appeal and complaint'

12. Succinct of argument of Adv. Mr. Abir Patel for respondent is that the entire case of the allottee is premised on the claim that pre Elvll on his housing loan was to be borne and paid by the respondent until he takes possession of the subject flat. The allottee sought directions to respondent to pay pre-EMI on his housing loan for 4 months. However, the relief claimed in the complaint as well as in the appeal is outside the realm of the RERA.

13. It is further argued by the developer that the appellant has produced a new document i.e. brochure on record which was neither produced before the Authority nor annexed to the instant appeal A party cannot produce new document by way of pleadings and therefore the document produced with rejoinder is not admissible and cannot be considered for the purposes of deciding the appeal Besides, the brochure does not bear the signature of the developer' Moreover, the appellant has not explained source of the brochure Therefore, the brochure cannot be taken into consideration for deciding the appeal' The appellant, for the first time, raised a new issue at appellate stage which was neither pleaded nor argued before the Authority' Neither the respondent was given a chance to deal with such document ie' brochure before the Authority nor did the Authority ltself get a chance to adjudicate the claim of allottee on the basis of this document' Therefore, the Tribunal cannot take cognisance of the brochure'

14. Learned Adv. l4r. Abir Patel invited our attentlon to the document which is styled as "Cost Sheet" and submitted that the said cost sheet signed by the appellant at the time of booking of flat states that the respondent's liability to pay pre-EMI shall be up to the date when final demand is raised on the appellant. The appellant has not produced document to show that pre-EMI was to be paid up to the date on which possession of flat was taken by the appellant The flnal demand, as per usual practice, is raised on procurement of occupation certificate. It is well settled proposltion of law that no Court can rewrite contract. The allottee is bound by cost sheet and therefore by any stretch of imagination it cannot be said that the developer is liable to pay pre-EI,1I on housing loan of allottee until allottee takes possession of the flat

15. It is further argued by the developer that the allottee cleared final outstanding amount in multiple installments and last installment was paid only on 27th lune 2018. Thereafter allottee took possession of the subject flat on 4th July 2018. The allottee has committed default in making payment by 4 months and thereby violated the provisions of Section 19(6) of the RERA The allottee is also in vlolation of Section 19(10) of the RERA for deliberately avoiding taking possession of subject flat within 2 months of occupation certiflcate. The allottee, upon being seNed with final demand letter, first raked up baseless dispute about alleged shortcomings in the flat' Those were merely issues with finishlng and touch-up work and no any work that remained incomplete. The developer installed fixtures and fittings in the subject flat and communicated the same to allottee by email dated 14th MaY 2018.

16. So far as the amenitles are concerned, learned Adv. Mr' Abir Patel submitted that all amenities stated in the agreement for sale have been provided to allottee and as such the project is being developed in phase-wise manner as per sanctioned plans. The allottee is well aware of phase-wise development of subject project. Clause-13 7 of the agreement for sale clearly indicates that the project including amenities would be completed and handed over in a phase-wise manner' Therefore, the claim of allottee in regard to non-providing of amenitles is misleading. Learned Adv. Mr' Abir Patel for respondent has placed reliance on following citations :

(1) H,S. Goutham vs. Rama Murthy & Another. [(2021) s scc 24u.

(2) Rajasthan State Industrial Development And Investment Corp' & Another Vs. Diamond & Gem Development CorP. Limited. t(2013) s scc 4701.

(3) Institute of Chartered Accountants of India Vs. L,K. Ratna & Others' [(1986) 4 SCC s37]

(4) Daman Singh & Others. Vs. State of Puniab & Others, [(198s) 2 SCC 670] [LQ/SC/1980/491] .

(5) Ashok Kapil Vs. Sana Ullah (Dead) & Others' [(1996) 6 scc 342] [LQ/SC/1996/1575] .

With these submissions, learned Advocate submltted that appeal be dismissed with costs.

17. After considering the submissions advanced by learned Advocates appearing for respective padies, impugned order and the documents on record, the only polnt that arises for our determination is, whether the relief souqht by the appellant ln complaint falls within the ambit of RERA, 2016 To this our answer is in the negative for the reasons to follow.

REASONS

18. It is specific case of allottee that by virtue of brochure and document styled as'cost sheet'pre-EMI of his housing loan was to be borne and paid by the developer until he takes possession of the subject flat. Disagreeing with this contention of the allottee, the developer claimed that the relief claimed by allottee does not fall within the amblt of RERA, 2016 and therefore, neither the Authority nor this Tribunal has jurisdiction to entertain the complaint which contains relief to direct the developer to pay pre-EMI though the developer has not violated any of the provisions of RERA

19. A close examination of provisions of RERA' 2016 shows that ceftain provisions of RERA empower the allottee to claim monetary reliefu such as refund of amount along with interest and compensation' if promoter fails to fulfill his obligations defined under Chapter III of the. Some of the obligatlons are spelt out in Sections l2' 14' 18 andlgoftheAct.TheconcatenationofprovisionsofRERAbyWhich theallotteecanclaimaforesaidreliefsmaybesummarisedaSunder

(a) Section 12 of theprovldes allottee to clalm relief of compensation for sustaining loss or damage on account of false representation contalned in advertisement or Prospectus etc' Proviso to Section 12- provides allottee to claim compensation along with return of lnvestments with 11 aToo6ooooo0010870 interest.

(b) Section 14 of therelates to adherence to sanctioned plans and project specifications by the promoter. Section 14(3) empowers the allottee to receive compensation in the event when there is any structural defect or any other defect in workmanship etc

(c) Sections 18(1) and 19(4) of theentitle the allottee to claim refund of amount paid along with interest and compensation' if the promoter fails to complete or is unable to give possession of an apaftment or building Proviso to Section 18(1) provides interest to allottee in case of delay in possession'

(d) Section 1B(2) of theempowers the allottee to claim compensation for loss sustained on account of defectlve title of the land on which the project is develoPed'

(e) Section 18(3) of thegives right to allottee to claim compensation on account of failure of promoter to discharge any other obligation imposed upon him under the' Rules and Regulations'

20. The Authority has jurisdlction to adjudicate claim relating to interest for delayed possession' refund of amount' and for other violations of provisions of RERA as the case may be' The Adjudicating Officer has limited jurisdiction under Sections 7l and 72 of RERA to adjudicate compensation under Sections 12' A' fg and 19' In the instant case the allottee has claimed reliefs of direction to developer to reimburse pre-EMi on his housing loan till he has taken possession of the flat i.e. for 4 months i e' till luly 2018 The aforesaid relief does not fallwithintheambitandscopeofRERA,2016.TheAuthorltyaSWellas Adjudicating Officer have no competence to entertain' hear and decide the complaint containing such relief' The Authority as well as Adjudicating Officer have inherent lack of jurisdiction to hear and declde the said complaint, as it is contractual dispute'

21. After considering the relief claimed by allottee in the instant case, we are of the view that the relief sought by appellant ls outside the scope or realm of the RERA and therefore Authority' Adjudicatinq officerandthisTribunalhavenojurisdictiontograntsuchrelief.Appeal is devoid of merits. Consequently' we pass the following order -

ORDER

(i) APPeal is dismissed'

(ii) Parties to bear their own costs'

(iii) In view of the provisions of Section 44(4) of theof 2016, copy of the ludgment shall be sent to the Parties and the Authority'