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TMI Blog2019 (4) TMI 2062X X X X Extracts X X X X X X X X Extracts X X X X ..... RER Act, and allotment letters issued by promoter in favour of allottees are still in force and promoter received 90% of the price of each flat i.e. Rs. 90,00,000/- for each flat from each allottees about 8 to 9 years back, allottees are justified in taking the shelter of Section 18 of RER Act, 3016 by selecting the option of withdrawing from the project and claiming the refund of entire amount paid to the promoter along with interest including compensation. The complaints filed by Allottees are maintainable under Section 13 of RER Act. 2016 and consequently impugned order stands set aside - the complaints are maintainable and Section 18 of RER Act, 2016 is also attracted to the present dispute and allottees are entitled to get refund of the amount along with interest including compensation from the promoter in view of Section 18 of RER Act, 2016, Rate of interest shall be as per Rule 18 of Maharashtra Real Estate (Regulation and Development) Registration of Real Estate Project, Registration of Real Estate Agents, Rates of Interest and Disclosures on Website) Rules, 2017. Appeal allowed - decided in favor of appellant. - Appeal No. 006000000010817 and 006000000010818 - - - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 10.05.2017. Promoter agreed to deliver the possession of both the flats on or before 30.06.2017, In due course. Allottees came to know that the alternative flats agreed to be sold by promoter to the Allottees situated in Gaurav Wood project were not having approval. On 01.05.2017 RER Act. 2016 came into force. Evershine Cosmic project was incomplete on 01.05.2017 and promoter registered the said project with MahaRERA Authority, Similarly. Gaurav Wood project, the sister concern of the promoter, also registered with MahaRERA as it was ongoing on 01.05.2017 Both projects are duly governed by RER Act. 2016 Allottees could not get the possession of their respective flats even after period of 6 to 7 years and Allottees had already paid about 90% of the price of their respective flat price to the promoter, allottees have decided to withdraw from the project. Allottees demanded refund of amount along with interest including possession from the promoter as per Section 13 of RER Act 2016 Allottees filed separate Complaints before MahaRERA Authority for recovery of refund along with interest including compensation. Defence of Promoter 4. Promoter appeared before MahaRERA Authority. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreed to be sold to the allottees in view of allotment letters. She strongly submitted that the proposed three Mats of Gaurav wood project were also not having legal sanction and so, allottees decided to withdraw from the project. She argued that memorandum of understanding was never acted upon and promoter as well as allottees reverted back to their original transactions in respect of sale and purchase of two flats in the Evershine Cosmic project in respect of which allotment letters were issued by the promoter and were not at all cancelled at any time. According to her, allotment letters are agreements between promoter and allottees regarding sale and purchase of the flats and hence, Section 18 of RER Act, 2016 attracts to the present dispute and allottees are entitled to claim refund along with interest. Arguments of Ld. Advocate for Promoter 8. On the other hand, Ld. advocate for the promoter mainly argued that complaints are wrongly filed in respect of the Flats situated in Evershine Cosmic project and complaints were correctly dismissed as per the impugned order as those are not filed in respect of Flats situated in the Gaurav Wood project According to him Promoter is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligations of Allottees and promoters are also governed by RER Act, 2016. Two transactions between parties 11. Complaints are dismissed as per impugned order on the ground that complaints are not filed in respect of Gaurav Wood project in which three flats are situated Admittedly, complaints are filed in respect of Evershine Cosmic project in which two flats are situated. It is not in dispute that as per original transaction promoter agreed to sale two flats in Evershine Cosmic project to the allottees. It is also not in dispute that promoter issued allotment letters of said two flats of Evershine Cosmic project in favour of allottees after accepting 90% price i.e. Rs. 90,00,000/- of each flat from each of the allottees in the year 2010 it is also not disputed that Gaurav Wood project is launched by Ravi Developers who is sister concern of the promoter it was transpired that both flats in respect of which allotment letters were issued and situated in Evershine Cosmic project were not having legal sanction Both parties mutually agreed to exchange the Flats So promoter offered to sale two different flats from another project namely Gaurav Wood project of his sister concern nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the transaction between the parties and their intention in respect of such transaction as revealed from the conditions of such allotment letters Moreover, Allotment letters are in respect of allotment of flats to Allottees and such allotment is the result of agreement arrived at between promoter and Allottees for sale and purchase of the flats on certain terms and conditions which are highlighted in Allotment letters. 13. It cannot be ignored that 90% of the total price of Rs. 100,00,000/- is paid by each allottee and it is received by the promoter in view of said allotment letters So, it can be easily said that promoter agreed to sale and allottees agreed to purchase two flats separately situated in Evershine Cosmic project From the promoter for consideration of Rs. 1/- Crore for each flat. MOU and its value in transaction 14. Second transaction between the parties mutually brought into existence the memorandum of understanding As far as memorandum of understanding is concerned, I would like to point out the concept of MOU as under: Memorandum of understanding (MOU) is generally a preliminary understanding between the parties to a contract, prior to the execution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Cosmic project, the allottees have correctly filed the complaints regarding their grievances against the promoter on the basis of such allotment letters in respect of Evershine Cosmic project Two flats of Evershine Cosmic project are the subject matter of the original transaction between promoter and allottees and promoter received 90% of the price i.e. Rs. 90,00,000/- for each flat from each allottees in respect of Evershine Cosmic project. So, allottees are justified in asking for refund of the said amount against the promoter which was paid to him in respect of Evershine cosmic project Thus, MOU did not take away the obligations and rights of promoter and allottees as per the allotment letters which are nothing but an agreement for sale. Observations guidelines laid down by Hon'ble Bombay High Court in Neelkamal Realtor case 16. It is just and proper to point out that their Lordships of Bombay High Court have laid down in Neelkamal Realtor Pvt. Ltd. Case law bearing Writ Petition No. 2737/2016 decided on 06.12.2017 held; 1) that RER Act. 2016 is social and beneficial legislation and the main object of RER Act, 2016 is to protect the interest of the flat purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are justified in taking the shelter of Section 18 of RER Act, 3016 by selecting the option of withdrawing from the project and claiming the refund of entire amount paid to the promoter along with interest including compensation. 18. I have held that complaints filed by Allottees are maintainable under Section 13 of RER Act. 2016 and consequently impugned order stands set aside. Now I have option of deciding the dispute raised in complaints in this first appeal as this first Appellate forum is fact finding forum and empowered by statute to re-assess the pleadings and evidence to adjudicate the dispute, I have also option of sending back both complaints to MahaRERA Authority to decide the dispute afresh as both complaints are tenable. But second option may result in causing hardship to both parties by spending time to approach and get decided the dispute afresh from MahaRERA Authority and possibility of delay in deciding the matters cannot be ruled out in view of heavy burden of large number of cases with MahaRERA. So. I exercise first option as provided by statute to adjudicate dispute at Appellate stage. For the reasons stated above, I am of the opinion that complaints are ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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