9911796707
TMI Blog2019 (9) TMI 1736X X X X Extracts X X X X X X X X Extracts X X X X ..... floors and 9 flats out of 10 flats proposed to be constructed on the 8th floor. The said Deed of Assignment clearly provided that the said M/s. Rebuilt Developers had authorised the appellant to receive balance consideration from the new flat purchasers and to issue NOC in favour of those new flat purchasers as per list annexed to the Deed of Assignment. The names of flat purchasers including the respondents herein were mentioned in the list annexed at Annexure-II to the Deed of Assignment. A perusal of the said list indicates that out of 10 flats proposed to be constructed on 8th floor, two flats were purchased by the partners of the appellant and five flats were purchased by the respondents herein - The appellant had agreed to indemnify the society the cost of the litigation in respect of the claim raised by the new flat purchasers against the society or any individual member including the cost incurred for litigation in Court, Arbitration, advocate fees etc. - it cannot be accepted that the appellant had not received any consideration from the respondents and thus was not liable to pay any interest on the delayed period under Section 18 of the said RERA. This Court enquired fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the building bearing Building No.133 standing on the said property. The old building No.133 has been demolished and a new building consisting of 7 floors has been constructed on the said property. 4. By and under a registered Development Agreement dated 13th December 2007 executed between the said society and one M/s. Rebuilt Developers, the said society had granted development rights in respect of the said property in favour of the said M/s. Rebuilt Developers. Under the said Development Agreement, the said society had granted right to M/s. Rebuilt to construct a new building on the said property having ground + 7 upper floors containing rehab and sale component tenaments by consuming then permitted 2.4 FSI in favour of the said Rebuilt Developers. 5. It is the case of the appellant that vide a Notification dated 6th December 2012, the Government of Maharashtra permitted utilization of 2.5 FSI for development of MHADA's housing colonies. The said society and the said M/s. Rebuilt Developers thus entered into a Supplemental Agreement dated 5th May 2012 thereby granting development rights in respect of the said additional FSI on the terms and conditions set out therein to the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parate complaint against the appellant before the Adjudicating Authority (hereinafter referred to as "the said authority" inter alia demanding payment of interest from the appellant under Section 18 read with proviso to Section 18(1)(a) of the said RERA on the consideration amount paid to M/s. Rebuilt Developers till the date of delivery of possession of flat to them. By an order dated 15th January 2018, the Adjudicating Authority after hearing the parties rejected the prayer for payment of interest made by the respondents on delayed construction of project but directed the appellant to deliver possession of the flats to the respondents on 31st December 2018 as mentioned in the registration details on MahaRERA's website. 10. Being aggrieved by the said order dated 15th January 2018 passed by the said Authority, the respondents herein filed separate appeals before the First Appellate Authority i.e. said Tribunal. By an oral judgment dated 29th August 2018 passed by the said Tribunal, the appeals filed by the respondents came to be partly allowed. The said Tribunal directed the appellant to release interest @10.05% p.a. in favour of each of the allottee/respondents herein for the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of the provisions of the said Deed of Assignment dated 9th November 2015 and would submit that none of the respondents were parties to the said Deed of Assignment. Under the said Deed of Assignment, the appellant had agreed to complete the pending construction of work of the building in all respect within a period of three months from the date of obtaining commencement certificate in respect of the pending work from Municipal Corporation of Greater Mumbai. He submits that under clause 8 of the said Deed of Assignment, it was clearly provided that the appellant would not commence construction work of the 8th floor in the said society building unless and until the appellant makes such necessary payments for procuring the commencement certificate from Municipal Corporation of Greater Mumbai or without payment of all necessary dues of concerned authorities. He submits that though the appellant had sent various reminders to the Municipal Corporation to issue commencement certificate, no such commencement certificate was issued by the Municipal Corporation and thus the appellant could not commence construction of the proposed 8th floor in the said new building. 14. It is submitted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oor in the said society building, under clause (k) of the said Deed of Assignment, the appellant was not required to commence construction work of 8th floor. Period of construction of three months for completion of construction of the said building could commence only upon Municipal Corporation issuing commencement certificate under clause (k). The appellant thus not having committed default in carrying out construction within the time prescribed, no compensation under proviso to Section 18(1)(a) of the said RERA could be awarded by the said Tribunal against the appellant. 17. The next submission of the learned counsel for the appellant is that none of the allottees of flat on the proposed 8th floor were parties to the Deed of Assignment entered into between the appellant, M/s. Rebuilt Developers and the society and thus no rights had accrued in favour of the respondents/allottees under the said Deed of Assignment. The obligation of the appellant under the said Deed of Assignment was depending upon and subject to grant of commencement certificate and on completion of other eventualities prescribed under the said Deed of Assignment. 18. Learned counsel for the appellant placed rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plate rewriting of contract between the flat purchaser and the promoter. He submits that under the provisions of RERA, the promoter is given a facility to revise the date of completion of project and declare the same under Section 4. 22. It is submitted by the learned counsel for the appellant that though various legal issues were raised by the appellant before the said Tribunal, the said Tribunal did not consider any of those submissions made by the appellant in the written submissions and thus the impugned order passed by the said Tribunal deserves to be set aside on this ground also. 23. Mr. Salunke, learned counsel for the respondents in all these appeals, on the other hand, invited my attention to various provisions of the Deed of Assignment dated 9th November 2015 entered into between the appellant, M/s. Rebuilt Developers and the said society and would submit that in the said Deed of Assignment, list of all members is annexed including the respondents to these five appeals in Annexure-II. He submits that out of 10 flats proposed to be constructed on the 8th floor, 2 flats were allegedly purchased by the partners of the appellant whereas 5 flats were purchased by the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and for which completion certificate is not being issued is mandatory. It is submitted that on 6th September 2 017, the appellant had got its on going project which was inclusive of construction of 8th floor in the building registered with Real Estate Regulatory Authority. 27. Learned counsel for the respondent placed reliance on Section 6 of the said RERA and would submit that if according to the appellant, the appellant could not commence or complete the project due to any force majeure, the appellant could have applied for extension of registration under the said provision after showing the reasonable circumstances. The appellant, however, did not apply for any such extension of registration under the said provision. Learned counsel for the respondents placed reliance on Section 18 of the said RERA and would submit that the respondents had two options available under the said provision i.e. either to withdraw from the project without prejudice to any other remedy available, to return the amount received by the promoter in respect of the flat allotted on the proposed 8th floor with interest at such rate, as may be prescribed in this behalf including compensation or could seek in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the said Tribunal had summarised all the submissions which were made across the bar before the Tribunal in the detailed impugned order passed by the said Tribunal. He submits that if it was the case of the appellant that any of the submissions made across the bar were not considered by the said Tribunal, the appellant ought to have made application before the said Tribunal for clarification or modification at the appropriate time. 31. In so far as the submission of the learned counsel for the appellant that the appellant having already terminated the Deed of Assignment and thus cannot be saddled with the payment of interest till the date of handing over possession of the flats to the respondents is concerned, it is submitted by the learned counsel that the so called letter of termination thereby purporting to terminate the Deed of Assignment is issued by the appellant only after the order of the said Tribunal. The so called termination of Deed of Assignment would not wipe off the statutory obligations of the appellant under the Deed of Assignment under the provisions of the said RERA towards the allottees of the flat. He submits that the said so called letter of termination is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this Court in the case of Neelkamal Realtors Suburban Pvt. Ltd. & Anr. (supra) and would submit that the provisions of the RERA are not retrospective in nature but may be to some extent be having a retroactive or quasi retroactive effect. REASON AND CONCLUSION :- 37. There is no dispute that Nehru Nagar Amrapali Co.op. Hsg. Soc. Ltd. was the owner of the building bearing Survey Nos.229 and 267. There was development agreement dated 13th December 2007 executed between the said society and the said M/s. Rebuilt Developers. There is no dispute that separate agreements were entered into between the said M/s. Rebuilt Developers and the respondents herein who are the purchasers of various flats on the 8th floor proposed to be constructed on the new building constructed by the said M/s. Rebuilt Developers. The said M/s. Rebuilt Developers had partly constructed a new building on the said property having ground + 7 upper floors and without obtaining occupation certificate, delivered possession of those flats to the members of the said society on ground + 7 upper floors. 38. There is no dispute that the said M/s. Rebuilt Developers could not commence construction of flats proposed to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per list annexed at Annexure-II to the the Deed of Assignment. I am thus not inclined to accept the submission of the learned counsel for the appellant that there was no agreement between the appellant and the flat purchasers or that the respondents had no locus to demand any amount of interest from the appellant under the said Deed of Assignment. A perusal of Section 15(2) read with definition of "promoter" under Section 2(zk) of the said RERA clearly indicates that the promoter includes his assignees and is required to independently comply with all the pending obligations of the original promoter under the provisions of the said RERA or Rules and Regulations made thereunder and the pending obligations as per the Agreement for Sale entered into by the erstwhile promoter with the allottees on transfer or assignment of a real estate project. 43. The appellant who had stepped into the shoes of the erstwhile promoter and had applied for registration of real estate project with Real Estate Regulatory Authority established under the said RERA is liable to comply with all pending obligations under the provisions of the said RERA which were to be complied with by the erstwhile promoter w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in favour of the appellant under the said Deed of Assignment. 46. The rights of the respondents are confirmed by the appellant even before the competent authority and thus cannot be allowed to now challenge their locus in these second appeals. In view of the definition of "promoter" under Section 2(zk), the said M/s. Rebuilt Developers having assigned the Real Estate Project in favour of the appellant herein, the appellant is the promoter within the meaning of Section 2(zk) of the said RERA and thus is bound to comply with all the obligations under the said RERA. 47. In so far as the submission of Mr. Khandeparkar, learned counsel for the appellant that since the Municipal Corporation of Greater Mumbai did not grant any commencement certificate to construct the work upto 8th floor in the said society building, the appellant was not bound to commence construction work and consequently the question of completion of pending construction work within three months from the date of obtaining commencement certificate did not arise is concerned, it is not in dispute that the appellant did not apply for extension of registration by invoking Section 6 of the said RERA by satisfying the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the said Tribunal thus cannot be set aside on this ground. 50. In so far as the submission of Mr. Khandeparkar, learned counsel for the appellant that since the assignment of Real Estate Project in favour of the appellant was without obtaining prior written consent from 2/3rd allottees and without prior written approval of the said Authority and thus the said Deed of Assignment was not binding on the appellant is concerned, in my view, this submission made by the appellant is made out of frustration and lacks honesty. The appellant itself made a statement before the said Authority that the appellant was committed to complete the project in accordance with the Assignment Deed, on 31st December 2018 as mentioned in the registration details on MahaRERA website. The said Authority also held that since in the Deed of Assignment, the names of all the complainants were mentioned, they were entitled to possession of their apartments before 31st December 2018 as per the date mentioned in the project registration. Submission of the learned counsel is ex facie contrary to the submission made before the said Authority. 51. A perusal of ground (c) of the Appeal Memo clearly indicates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Greater Mumbai did not issue commencement certificate in respect of pending work, the period of three months for completing the pending construction of the work of the building in all respect had not commenced is concerned, appellant has not produced any material on record to show whether any steps were taken by the appellant against the Municipal Corporation for not granting commencement certificate for no alleged fault on the part of the appellant. Similarly, the appellant also did not produce any material on record to show that the MHADA did not process the application for revised NOC and did not issue commencement certificate for construction of work on 8th floor either before the authorities below or before this Court. 56. In so far as the submission of the learned Counsel for the appellant that since none of the respondents were parties to the Deed of Assignment entered into between the appellant, M/s. Rebuilt Developers and the society and thus no relief could be claimed by the respondents against the appellant is concerned, a perusal of the averments made in paragraphs 1.7 and 1.10 in the appeal memo clearly indicates that the appellant itself has given the names of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e promoter. It was a commercial bargain between the appellant and the erstwhile promoter and thus even if there was no expected profit earned by the appellant under the said Deed of Assignment, the appellant cannot refuse to perform its part of statutory obligation under the provisions of the said RERA read with the Deed of Assignment. 61. During the course of the arguments, this Court enquired from the learned Counsel for the appellant whether the appellant is ready and willing to return the amount spent by the respondents to the erstwhile promoter with interest as provided under Section 18 of the said RERA without prejudice to any other remedy available to the respondents against the petitioner, the learned Counsel for the appellant on instruction states that his client is not agreeable to return the amount paid by the respondents with interest as contemplated under first part of Section 18 of the said RERA. 62. The said Tribunal had recorded various findings of facts after considering the submissions made by the parties and the documents on record. The said Tribunal has interpreted various provisions of the said RERA. I do not find any perversity in the findings rendered by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
