Sarnobat

ALONG WITHAPPEAL NO. 006000000010793

,\ppe al No.t0792 & 10793

.. Respondents

Appellant

MAHARASHTRA REAL ESTATE APPELLATE TRIBUNAL

APPEAL NO.006o00oooo1 0792

MANTRI DWELLINGS PRIVATE LIMITEDA company registered as per the provisions ofCompanies Act, 1950Having its regional office at Survev No 16/4,4Kharadi, Behind Zensar Technologie;,Pune-411014.

Vs. ... Appellant

1, MR. RAJESH SAXENA,Age :-about 50 yearsCorrespondence R/at -A4304,Kumar Primavera, WadgoansheriPune.

2. MRS. SMRITI RAJESH SAXENA,Age :-about 44 yearsCorrespondence R/at .-A41304,Kumar Primavera, Wadgoansheri,Pune.

MANTRI DWELLINGS PRIVATE LIMITEDA company registered as per the provisions ofCompaniesAct, 1950Having its regional office at Survey No 16/44Kharadi, Behind Zensar Technologies,Pune-411014.

Vs.1. Mr. RAVENDRA SEXENA,

Age:-about 72years, R/at:- FF 103,AF Apartments, B-13 Sector G,Aliganj, Lucknow, 226024.

2. MRS. SANTOSH SAXENA,Age :-about 70 years, R/at - FF 103,

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AF Apartments, B-13 Sector G,Aliganj, Lucknow, 226024

Advocate Mr. Abhijit Dixit for AppellantAdvocate Shri Harshal Jadhavfor Respondents

Appcal No.10792 & 10793

Respondents.

CORAM : lNDl RA JAI NJ.(C hairperson)

S.S.SANDH U(Membe rA)DATE : 11th Julv. 2019.

JU DG MENT PER: S UMANT M. KOLHE MEM BER J

Both Appeals are directed against order dated31.08.2018 passed separately by Learned Adjudicating officer inComplaint No.CC005000000011283

cc00500000 0011276.and Complaint No

2. Allottees in both matters have separately booked theirrespective flats. promoter agreed to sell the flats. promoter andAllottees executed and registered agreements for sare. Ailotteespaid part of the price incruding stamp duty and registration chargesof their respective flats to the promoter. promoter agreed to handover possession of the respective flats within 30 months beforeDecember, 20i7. promoter failed to hand over the possession asper agreed date. The RER Act 2016 came into force with effect from01.05.2017. Project being ongoing was registered with MahaRERAAuthority as per Section 3 of the RER Act 2016. Obligations andrights of promoter and Arottees are governed by provisions of theRER Act 2016. Promoter extended date of completion of projectfrom time to time. Being dis-satisfied with extended date of

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SUMANT M. KOLHE.(Member J.)

possession, Arottees decided to withdraw ;Jff"iil ffi:,':?idemanded refund of the amount along with interest includingcompensation from Promoter by firing complaints under Section 1gof the RER Act 2016.

Material facts of both transactions are as under ;-peal No.1 0792

Name of project "Mantri Va ntage" at Kharadi, Pune.Subject matter Flat No. A-7.

Decemb er, 2011 (30 months)Rs. 68,00,750/-

08.06.2015.

Rs.50,72,150t-

Refund of the amouni along withnterest including compensationunder Section 18 of RER Act,2016.Appeal No.107 93

Name of project "Mantri Vantage,,at Kharadi, Pune.Flat No. 4-307.

December, 2017 (30 months)Rs. 80,64,20

Registered agreementexecuted onPrice paid to promoterinclusive of s tamp dutyand

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Date of possession

ce of the flat

executed on

Pri

Registered agreement

elief claimed

Pr ce a d top rom op rtenc uS v oe sf tam d up ty

a nd re stra t noghc a ES

R

e of Possessio

ce of the flat

Subject matter

Dat n

Pri

cha esregistration

Rs.50,30,163/

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i 05.06.2015.

II

Relief claimedAppeal No.10792 & 10793

Refund oftheamount along withtnterest includi ng compensationunder Section 18 of RER Act 2016.

Promoter appeared before MahaRERA in both thecomplaints and filed the say Promoter contended that due to

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possession before December, 2017 as mentioned in agreementfor sale was subject to force maieure. promoter has contendedthat main contractor abandoned the work in 2OlSand project wasbadly affected due to demonetization in 2016 and application ofGST in 2017. Accordrng to promoter, time for completion of theproject was extended as per clause mentioned in the agreementfor sale and allottees w

r i m it rt is co nten ded,^ ":

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reasons beyond the conbefore December, 2017.

trol, project could not be completedAccording to promoter, the date of

Adjudicating

Appeals by

5. After hearing both the parties and perusing the documentsfrom record, the Ld Adjudicating officer passed identicar ordersseparatery in both the compraints and directed the promoter torefund the amount received by the promoter along with interest.The Ld. Adjudicating Officer also created the charge of theamount which is due and payable with interest on the respectiveflats and directed the Arottees to execute Deed of canceration ofagreement for sale after receiving the entire amount of refund withinterest.

6. Feeling aggrieved by the orders of the LdOfficer, promoter has preferred two separate

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7. Heard Ld counsel for the Appellants and Ld. counselfor Respondent at length. The Ld. counsel for Appellants mainlyargued that in view of Arbitration Clause in the agreements forsare, compraints fired by arottees under the RER Act 2016 are notmaintainable. He further argued that there was no deliberate andintentional delay in completing the prolect According to him, maincontractor abandoned the work in 2O1S and project was badlyaffected due to demonetization in 2016 and applicafion of GST in2017. He argued that the reasons for delay being beyond controlof the Promoter, project was delayed. He referred to clause No.23 in agreements for sale and submitted that on cancellation,promotor has a right to accept or reject the cancellation and 10%of agreed sale price shall be forfeited on acceptance ofcancellation and refund would be paid back to Allottees withoutany interest

8. The Ld. counsel for the Allottees argued that the reasonsassigned for delay do not come within the ambit of definition offorce majeure as per the RER Act 2016. He further argued thatproject is admittedly delayed and promoter failed to hand over thepossession of flats before December, 2011 . According to him,Allottees have chosen the option of withdrawal from the projectand they demanded the refund of amount along with interestincluding compensation as per Section 1g of the RER Act 2016.He submitted that the ordersjust, proper and legal

passed by Adjudicating Officer are

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chattensins tesatity, vatidity and correctn"r,Iil: );:I]' & r07e3

Appcal No.10792 & 10793

9. The points arise for our determination along with findingsthereon are as under;

POINTS

1) !/hether impugned orders dated31 08.2018 passed by Ld AdludicatinoOfficer separatety in both "o;;;;t;"'are sustainable in law ?

2) What order?

FINDING

Affirmative

As per final order

REASONS:

Admitted facts10 Promoter and allottees separately executed and registeredagreements for sale on 05.06.2015 in respect of two flatsPromoter faired to hand over the possession of frats to the ailottesas per agreed date mentioned in agreements for sale. Allotteesdecided to withdraw from the project and demanded refund of theamount paid tocompensation.

the Promoer along with interest including

clause as

shall have

11 . As per clause 5g of registered agreements for sale,disputes or differences arising between the parties with regard toany matter relating to or connected with the Agreement shall beresolved by arbitration by a sole arbrtrator As per clause 60 of the

Arbitra tion C lause

agreements for sale, sublect to the arbitrationmentioned above, Civil Courts in pune alonejurisdiction to adjudicate upon any disputes between the partiesregarding performance of their respective obligatrons under theterms hereof.

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project is resistered with ,j:Hiii'Tfijffi'Obligations and rights of promoter and Allottees are governed bythe provlsions of RER Act 20.16. Allottees have withdrawn fromthe project. rt is obligation of the promoter to refund the amountreceived from the Allottees along with interest includingcompensation as per Section ig of RER Act 2016. Allottees havedemanded the amount with interest but promoter has failed todischarge the obrigation by refunding the amount with interest tothe Allottees.

12. As per clause 60 of the agreements for sale the disputesregarding performance of respective obligations of the partiesshall have to be adjudicated in Civil Courts at pune. Clause 59 ofagreements for sale regarding arbrtration peftains to dispute ordifference with regard to any matters relating to or connected withthe agreement, and not relating to obligations of the parties. TheRER Act 2016 is a special Act. lt is having over ridding effect onthe other Acts as per Section g9 of the RER Act 2016. Allotteeshave fired compraints under Section 31 0f the RER Act 2016 forrefund of the amount with interest including compensation.Arbitration crause in agreement for sare does not debar theAllottees from agltating their statutory right for refund along withinterest as provided under Section 1g of the RER Act 2016. ltcannot be said that complaints filed by Allottees under the RERAct 2016 are not maintainable rn view of arbitration clause in theagreements for sale.

Delayed possession a nd refund with in terestPromoter has not disputed that project is not completed

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as per an agreements and possess,o, of tf.,"lfl?""rfr):ffii:.'JJ;over within the agreed time Admittedry, Allottees have withdrawnfrom the project and demanded refund of amount with interest and

14. According to promoter, there were reasons beyond thecontrol due to which delay is caused in completing the project. Asper Section 1g of RER Act 2016 two options are given to theAllottees rf possession is not handed over within the agreed timeas per first option, Allottee may withdraw from the project andpromoter shall refund the amount paid by the allottee along withinterest and compensation As per second option, allottee may notwithdraw from the project and promoter shall pay interest for everymonth of delay till handing over the possession. lf option ofwithdrawing from project is exercised by Ailottee, the reasonsassigned for delay in completing the project may not deprive theAllottee from claiming the refund amount with interest includingcompensation. lf allotees continue with the proiect and claiminterest for delayed possession, then the genurne reasons if anywhich are beyond the control of the promoter causing delay incompleting the project are considered to decide total perrod ofdelayed possession for granting the relief of interest

Reasons bevond control and Section 18 of RE R Act

Extensi on of date of possesston15. Promoter extended the date of possession for completionof project from time to time and lastly up to June, 2020 as perregistration of the project with tMahaRERA Authority. lt isunilateral extension of date of possession. lt does not postponethe date of possession as per the agreements for sale.

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compensation.

opportunity to extend date or comptetion "r;ffi:i:,'i;:.;Hiregistration does not change the agreed date of possession asper agreement and such extension does not absorve the promoterof his obligation to hand over possession as per agreed date. ltsimply protects the promoters from penal consequences forbreach of obligations under the RER Act as per observations oftheir Lordships in Neelkamal Realtor Case (Hon,ble Bombay HighCourt).

Discretion of Prom oter to accept or reiect cancellation16. Promoter cannot deprive the allottees from exercisingstatutory right. lt is for allottees to decide at what point of timeand stage they may withdraw from the project for reasons ofdelayed possession. Clause 22 oI agreement for sale as referredby Ld. counser for promoter is unreasonabre, harsh and onesided. As per said clause rlght to accept or relect the cancellationof booking or agreement on the part of ailottees was within thesole discretion of promoter. lf promoters accept such acancellation, then 10% of the agreed sale price stands forfeitedClause 22 is against the spirit of RER Act 2016 and rs not bindingon the a'ottees. The Ld. Adjudicating officer has considered thesubmissions of both sides and correcfly held that allottees areentitled for refund with interest including compensation. The LdAdjudicating offrcer has properry considered the issue of refundof stamp duty to the allottees and accordingly passed the orderfor refund of amount. Orders passed by Adjudicating Officer aresustainable under the law. So we answer the point accordingly.

17 ln the result we pass the following order.

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Appcat No. t 0792 & 10793ORDER

Appeal No.AT006000OOOO1O1}2 and AppeatNo 4T0060000000i 0793 are dismissed.lmpugned orders are confirmed.

Promoter to comply impugned orders within one monthfrom date of this order.

Promoter to pay cost of Rs 25,0001 for both matters

2)

3)

4)

throughout.

5) Originat judgment IS kept ln Appeal No.4T00600000001OT92 and copy is maintained in AppealNo. 4T006000000010793

AN I suMJUDI c

NT M. KOLHE,]IAL MEMBER,

pruorn*1arr,r1Chairperson

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