MAHA RERA: The delay in obtaining NOCs including Fire NOC do not fall within the force majeure factors prescribed under the RERA and the relevant rules made thereunder.

MahaRERA: To ensure that the said project is not jeopardized due to the outflow of finances it is directed that the amounts of interest shall be paid by the respondent promoter to the said complainants after obtaining the full occupancy certificate.

MAHA RERA: Issue of GST input credit does not fall within the purview of the provisions of the RERA. Hence, the complainant need to approach the appropriate forum for redressal of the said grievances about the GST.

Anil Kumar Dattani Versus Real Gem Buildtech Private Limited & Ors. Complaint No. CC006000000292852 Before the Maharashtra Real Estate Regulatory Authority Mumbai Decided on 13th May 2024)

Fact of the Case:

• Respondent no. 1 i.e. Realgem Buildtech Private Limited is the Promoter of the project.
• Respondent no. 2 i.e. Bhishma Realty Limited is the landowner of the project.
• Respondent no. 3 i.e. Kindmaker Developers Private Limited has been appointed as a Development Manager under the development management agreement dated 18-03-2018 and is basically an agent of the respondent no. 1 functioning for a fixed fee. The respondent no. 3 was appointed for the purposes of:
  • Managing
  • Monitoring
  • Supervising
  • Coordinating the construction and development of the said project
  • Sales and marketing related activities including customer relationship management
• The subject matter of the case is flat bearing no. 2302 on 23rd floor in the "RUSTOMJEE CROWN - PHASE I" at Prabhadevi, Mumbai.
• On 16-01-2019 The respondent issued the allotment letter in the complainant's name.
• On 25-01-2019 The complainant and the respondents entered into a registered agreement for sale.
• The respondent had assured to handover the possession of the said flat on 31-12-2021.
• The Flat was for a total consideration of Rs. 7,69,86,000/-
• The Complainant has already paid Rs. 7,41,83,995/- to the respondents from time to time.
• The respondent did not give the possession by the said date.
• On 27-09-2022 the complainant filed the present complaint.

Submissions by Appellant:
As per the RERA, the all 3 respondents are jointly and severally liable as per circular no. 12/2017 dated 04-12-2017.

Submissions by Respondent(s):
The date of possession mentioned in the agreement for sale is 31-12-2021 and the same was subject to provisions of clause 8 of the said agreement which provides for a reasonable extension on occurrence of mitigating events.

The Covid 19 pandemic was a force majeure event and therefore covered under clause 8 of the agreement for sale.

Observations made by the Hon'ble Court:
The Respondent nos. 1 and 2 being the promoters of this project registered with the MahaRERA are liable to perform their part as stipulated in the registered agreement for sale dated 25-01-2019 signed with the complainant herein.

With regards to respondent taking the plea on the issue of jurisdiction as per clause 16.1 of the said agreement for sale wheras the complainant has agreed for arbitration in case of any dispute arising in respect of the said agreement for sale.MahaRERA is of the view that the same is raised at a belated stage by filing its reply on record of MahaRERA, Further, there are no explicit provisions under RERA about the arbitration clause. Hence,the same stands rejected.

As far as the issue raised by the complainant about GST input credit not being provided to him, the MahaRERA is of the prima facie view that the same does not fall within the purview of the MahaRERA under the provisions of the RERA.

However, it is for the concerned competent forum to deal with such issues. Hence, the complainant need to approach the appropriate forum for redressal of the said grievances about the GST.
The MahaRERA is not going to deal with the said issue for want of jurisdiction.

the MahaRERA is of the view that the delay cited by the respondent such as delay in obtaining CFO NOC due to change in fire norms and the delay in obtaining NOC from MPCB do not fall within the force majeure factors mentioned in the draft model agreement for sale prescribed under the RERA and the relevant rules made thereunder.

Court's Order:
The respondent promoter is directed to pay interest for the delayed possession to the complainants from 01-01-2023 ( as per agreements for sale i.e. 31-12-2021 + 1 year grace period due to Covid-19 Pandemic i.e. 31-12-2022) for every month till the actual date of possession of the said flat to the complainant or till the date of offer of possession with OC if any obtained by the respondent promoter.

to ensure that the said project is not jeopardized due to the outflow of finances it is directed that the amounts of interest shall be paid by the respondent promoter to the said complainants after obtaining the full occupancy certificate.

Written By: Advocate Rajan Kumar Hans - Hans & Hans Advocates and Consultant,
(A boutique law firm based in Delhi/NCR & specializing in real-estate laws )
Ph no: +91-9700130033, Email : [email protected]