Appeal No.

AT006000000052549/52554
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Complaint No.CC006000000161350/151348

BEFORE THE MAHARASHTRA REAL ESTATE

APPELLATE TRIBUNAL, MUMBAI

Appeal No. ATOO6O00000052549

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Gomplaint No. GGOO600000O1 61 35O
Mr. Tanveer Iqbal Zamane
A1304, A Wing, Kiledar Buldg. No.3,
t651t72, S,V, Road,
Jogeshwari West,
Mumbai - 400 102.

Mr. Jawed Alimiya Zamane

C/o. Mhd. Iqbal Alimiya Zamane
A1304, A Wing, Kiledar Buldg. No.3,
1651172, S.V. Road,
Jogeshwari West,
Mumbai - 400 102. Appellants

VERSUS

M/s. Khoker Synergy Developers

701, Shivanjali Co-op. Hsg. Soc. Ltd.
35, Dr. Ambedkar Road, Khar (West),
Mumbai - 400 052. ... Respondent

Alongwith

Appeal No. ATOO6O00000052554

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Gomplaint No. GGOOGOOOOOO161348

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 Appeal No. AT006000000052549/52554
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Complaint No.CC006000000161350/161348

Mr. Tanveer Iqbal Zamane

N304, A Wing, Kiledar Buldg. No.3,
1651L72, S.V. Road,
Jogeshwari West,
Mimbai - 400 102.

Mr. Jawed Alimiya Zamane

C/o. Mhd. IqbalAlimiya Zamane
N304, A Wing, Kiledar Buldg. No.3,
1651172, S.V. Road,
Jogeshwari West,
Mimbai - 400 102. ... Appellants

VERSUS

M/s. Khoker Synergy Developers

701, ShivanjallCo-op. Hsg. Soc. Ltd.
35, Dr. Ambedkar Road, Khar (West),
Mumbai - 400 052. ... Respondent

Adv. Mr. Ramaswamy for AppellanB

Adv. Mr.Dinesh Rane for Respondent

CORAM : SHRIRAM R. JAGTAP, MEMBER(J) &

s. s. SANDHU, MEMBER (A)
DATE : l1th November,2022.
(THROUGH VrDEO CONFERENCTNG)

,L JUDGMENT

[PER: S. S. SANDHU, MEMBER(A)]

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Complaint No.CC006000000161350/151348

The above two Appeals are preferred against common

order dated 25.02.2020 passed by learned Member-1, MahaRERA

(Authority) in the individual Complaints filed by Appellants herein.

2. Parties in Appeals hereinafter will be referred to as

Complainants and Respondent as per their original status.

3. Brief facts of the matters in these Appeals are that both

Complainants claim to have paid Rs.25 lakhs each by cheques plus

cash amount of Rs.2.50 lakhs towards purchase of residential flats

and car parking spaces respectively in Respondentt project Bait-

e-Mohhamedali at Byculla, Mumbai in the years 20ll-20t2.

Undated receipts (page 34) to that effect were also issued by

Respondent. However, the project did not take off. According to

Complainants, after repeated pursuasion, Respondent

acknowledged to have utilised their amounts for the project

'Royale' in Andheri (West), Mumbai now registered with

MahaRERA. It is further alleged that unable to return money

Respondent urged Complainants to buy flats in the said project and

also made the Complainants to pay further amount of Rs.2.5 lakhs

,T in cash towards car parking. It is also claimed that Respondent

promised to handover possession by 2017. On failing to do so,

Complainants sought their money back vide letters dated

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Complaint No.CC006000000161350/161348

10.07.20L7 and 18.07.2017. As the Respondent refused to accept

the claim of Complainants vide letter dated 02.08.2019,

Complainants filed respective complaints to seek refund of the

amounts with alternate relief to provide flats in the project'Royale'

registered with MahaRERA.

4. The Authority heard the concerned parties in the

complaints and recorded its observations and findings in Para 8 to

10 of the impugned Order as follows:

" B. Admittedly, in the present casq the complainants have not

produced any such required documents such as, agreement for
sale/allotment letter to show any agreed date of possession and
therefore, in the absence of such relevant documents, the provisions
of Section 18 cannot be invoked by MahaRERA. Moreover, the
complainants have not produced any cogent documentary proofs on
the record of MahaRERA to show any contradual obligation between
them and therefore, the MahaRERA do not find any merits in these
complaints for grant of refund of entire amount paid by them to the
respondent.

9. Wth regard to the claim of the complainants for possession of

the flat in the respondentb project, MahaRERA is of the view that the
complainants have not produced any cogent documentary evidence i.e.
agreement for sale or allotment letters to show that the respondent has
.L) allotted any flat in the present projed and hencg the said relief sought
by the complainants for allotment of the flat in the present pOect of
the respondent cannot be accepted.

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Complaint No.CC005000000151350/161348

10. With the above obseruation, both the complaint stands dismissed.

Hence the Appeals".

5 Learned Counsel for Complainants argued by reiterating

the facts mentioned above in brief that as per receipts (page 34),

the Complainants paid to paftner of Respondent Rs.25 lakh each

for purchase of residential flats of 550 sq.ft. saleable in Byculla

project. Complainants stated in Para 5 of the Appeal that as

mentioned in the Reply dated 05.12.2018 (Pages 32, 33) sent to

Income Tax authorities, the pafties agreed to purchase flats @

Rs.11,500 per sq.ft. It is accordingly contended that at the said

rate, the total cost of flat at that time comes to Rs.71.88 lakhs as

against current market price of Rs. 1.16 Cr. and the amount of

Rs.25 lakhs already paid for each flat comes to more than 300/o of

the total consideration. Complainants therefore argued that due

to large payment already made Respondent was requested

multiple times to execute agreement for sale which was declined

for the reasons that IOD for the project was not yet received.

6. Complainants further argued that on being asked the

paftner of Respondent told that amounts paid by them have been

/
4/ utilised for their project 'Royale' at Andheri and therefore

Respondent was unable to refund the amounts. They submitted

that the fact that the said amounts were utilised for the 'Royale'
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Complaint No.CC006000000161350/161348

project registered with MahaRERA can be ascertained from

amounts credited into HDFC account No. 016320001514, Pali Hill

Naka Branch linked to the said project. Complainants further

submitted that they also paid additional amount of Rs.2.50 lakhs

each for car parking in Andheri project as insisted by partner of

Respondent.

7. It is claimed that despite having received amount of

Rs.27,50 lakhs each from the Complainants, Respondent has not

shared any information pertaining to flats in the said project

'Royale' and thus Respondent not only committed violation of

Section 13 of RERA but has also indulged in fraudulent practices

upon Complainants since inception. It is also contended that even

after obtaining IOD in 2012 for project'Royale', Respondent has

completed only seven floors till today which itself proves that
Respondent is neither interested in executing agreement for sale

nor has any intention to return money with interest. Referring to

para 3 of Respondent's reply dated 02.08.2019 in response to

Complainants' notices dated L0.07.20L9 and L8.07.20L9,

,L Complainants contended that Respondent has acknowledged the

acceptance of amount yet it gave evasive reply while seeking

further time to refund the amount paid by Complainants.

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Complaint No.CC006000000161350/161348

8. Complainants further argued that Respondent has clearly

accepted in letter dated 02.08.2019 that Complainants are

interested in project'Royale'and have expressed its willingness to

allot a flat each to Complainants in the said project as per

discussion between the parties. It is argued that as held by the

Authority in Ashok Kumar Parakh V/s. M/s. Reddy Builders

(complaint No. cc006000000196117) even if there is no allotment

letter, by just mere receipt given by Promoter, there is a valid

contract between the purchaser and Promoter. It is therefore

contended that in view of confirmation and acceptance by

Respondent in the aforesaid letter dated 02.08.2019 to allot one

flat each to Complainants in the project 'Royale'. Complainants

herein are Allottees and not investors as sought to be paid by

Respondent. Complainants accordingly argued that they are

entitled to interest for delay in possession with compensation whlch

should be calculated on the basis of current year's market value of

Rs.1.16 Crore as against the then market value of Rs.71.98 lakhs

in the years 20lL-20L2.

9. Abandoning the alternative claims for interest for delayed

{
possession and directions for execution of AFS as made in the

Complaints as well as Appeals, the Complainants, during the oral

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Complaint No.CC006000000161350/161348

arguments sought refund of the amounts paid by them with

interest and compensation.

10. Per contra, learned Counsel for Respondent at the outset

submitted that the entire claim of Complainants is based on single

document (page 34) i,e. receipts for amounG paid by

Complainants. It is submitted that the said receipts are regular

receipts which are normally given in the market for accepting

deposit as these bear no price, number, description of flat, name

of the project, etc, for construing them to be as contractual

documents or letter of allotment/agreements for sale of flats' It is

contended that Complainants are not Allottees but purely investors'

Referring to observations made in para 8 of the Order it is argued

that in the absence of documentary evidence to show any

contractual arrangements between the parties neither the

Authority nor this Tribunal has any jurisdiction to adjudicate the

!
-/l
claims sought in the complaints/Appeals for grant of refund of the
4--
amounts.

11. Respondent further contended that apart from being not

home buyers/allottees, the claims made in the Appeals are not only

grossly barred by limitation but the Appeals also do not disclose

any cause of action and the same are therefore flled with oblique

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Complaint No.CC005000000151350/161348

motives. Respondent denied that the Complainants were

persuaded to book flats in Byculla or 'Royale' project by

Respondent or its paftner as alleged by Complainants. It is

contended that on the contrary, it was Complainants who came in

contact with Respondent through a common friend and they were

continuously after the paftner of Respondent Mr. Wasim Shaikh for

more than one year to invest their money in the Respondent's

upcoming project at Andheri. It is fufther contended that

Respondent issued receipts for amounts paid by Complainants with

the intention of investment and therefore there was no question of

mentioning the name of the project, its location, flat Nos., etc. as

the said amounts were not paid as token amounts towards flats in

the Respondent's project,

12. Respondent fufther submitted that the alleged letters

annexed to Appeals purportedly written by Complainants to

Income Tax Authorities are baseless and futile efforts by

It
I
"L
Complainant to misguide the Tribunal.

letters have no supporting documents attached

is submitted that the said

to them to
substantiate the claims made therein by Complainants and create

no obligation towards Respondent, It is contended that moreover

the said letters were never produced before the Authority and

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Complaint No.CC005000000161350/151348

hence as per settled law no such new evidence which the

Complainants have not produced before the Authorlty can be

introduced at the appellate stage. It is also contended that ground

raised regarding total cost of flat and area as alleged by

Complainants is completely bogus and fraudulent in the absence of

any shred of supporting evidence and hence cannot be accepted,

13. Respondent also denied receipt of any cash amounts of

Rs.2.5 lakhs each from Complainants for car parking in 'Royale'

project as no documentary evience or any date of payment of the

said amount is submitted to substantiate the claims. Respondent

also argued that vide their letters dated 18.07.2019 Complainants

though raised demand for Rs. 5 lakhs each but before the Authority

and the Tribunal they have claimed to the contrary that they had

paid Rs.2.5 lakhs each in cash. Respondent contended that the

said amounts are mentioned with malafide intention as the claim

of Complainants were grossly barred by limitation. It is therefore

submitted that the alleged claims being false and misconceived are

not tenable.
"L
t4. Respondent also submitted that the claim of Complainants

that Promoter promised that project shall be ready by 2017 being

without any documentary evidence is absolutely baseless and

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Complaint No.CC005000000161350/161348

unsubstantiated. Respondent also denied any violation of Section

13 of RERA on account of non-execution of agreements.

Respondent pointed out that demand notices sent by Complainants

themselves state that amounts invested by Complainants were

agreed to be paid within 4 years from the date of their payment

and the same were calculated with interest @ 18o/o per annum till

date which substantiates that they were completely aware that

they were only entitled to refund of the money with interest and

nothing more. Respondent contended that the said claims are now

time-barred and on being pointed out the same vide legal notice

dated 30,10,2019 by Respondent, the Complainants have

concocted fictitious story seeking adjudication of their claim as

allottees even though they were actually investors.

15. With the submissions as above, Respondent suppofted the

view taken by the Authority in the impugned order as the

Complainants have failed to produce any cogent documents,

agreements for sale or letters of allotment etc. to show any agreed

date for possession to attract provisions of Section 18 of RERA. It

,L is also stated that as argued hereinabove, Complainants could not

submit any proof on record to show any contractual obligations

between the Respondent and Complainants and therefore, for the

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complaint No.cc006000000151350/151348

aforesaid reasons, Respondent sought dismissal of the Appeals in

limine being not maintainable.

16. After giving a thoughtful consideration to the averments

of the respective parties and the record, the points that arise for

our consideration are (i) Whether Complainants are entitled to

reliefs as sought in the complaints/Appeals? and (ii) Whether the

impugned order calls for interference in Appeal?

t7. Answers to both the points are in the negative for

following reasons.

Points (i) and (ii)

18. The entire claim of Complainants appears to be based on

undated receipts (page 34) which undeniably have been issued by

Respondent for having received amount of Rs.25 lakhs each from

the Complainants'towards interest shown in booking of flat (1) in

the proposed project', It is the claim of Complainants that the said

amounts were paid for purchasing flats in Byculla project and as

Respondent acting fraudulently did not take requisite approvals,

4 the said project at Byculla did not commence. Consequently, the

contentions of Complainants is that on being asked to refund the

amounts with interest vide letters dated 10.07,2019 and

18.07.2019 Respondent not only admitted in reply dated

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Complaint No.cC006000000161350/161348

02.08.2019 that amounts paid by Complainants were utilised for

'Royale' project registered with MahaRERA but also promised to

allot flats in the said project as Respondent was unable to refund

the amounts.

19. To be fair to Complainants, the above contentions are

substantiated by the letter dated 02.08.2019 of Promoter and we

find in para 3 thereof that Respondent has in fact accepted to have

received amount of Rs.35 lakhs as against the claim of

Complainants for Rs.25 lakhs. It is further noted that contrary to

the contentions of Respondent raised during complaints and

Appeals proceedings that Complainants were investors and their

claims were time-barred, no such claim is made in the said letter

wherein Respondent inter alia has promised in para 5 read with

para 9 'to allot a flat in the ongoing project at Andheri West for

which money was paid by Complainants or else to refund amounts

received as mutually discussed between the parties.'

0 20. Despite above circumstances seemingly favourable to

A/
Complainants, in our view, none of the documents as relied upon

by Complainants is relevant and sufficient enough to attract

application of RERA provisions for considering reliefs of refund with

interest under Section 18 or to give flats to Complainants in the

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Complaint No.CC005000000161350/161348

project'Royale' registered under RERA at the rates prevailing in

ZIIL-LZ as Complainants had sought earlier in the complaints

and/or the Appeals. The MOFA, during the period of which

transactions took place between the parties in Appeals and also the

RERA which came into effect on 01.05.2017, envisage execution of

the said agreement by Promoter before receiving more than 200/o

and 10o/o amount of total consideration under Sections 4 and 13

respectively.

2t. The above said provisions of both the Acts presuppose the

total price of the flat to be purchased to be agreed upon between

the parties for enforcing the provisions of Sections 4 and 13 of

MOFA and RERA respectively for execution of agreements. The

terms and conditions of agreement govern the obligations of

transacting parties inter alia relating to date of possession and the

consequences for delay in possession as promised under Sections

8 of MOFA and 18 of RERA. In case possession is not handed over

as per terms of agreement or by the date stipulated therein,

Section 18 of RERA entitles the Allottee to withdraw from the

project to take refund of the paid amount with interest and/or

compensation or as the case may be, the interest in case the

allottee decides to stay in the project.

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Complaint No.CC00500000016135O/ 767348

22. Considering the legal position explained as above, the only

documents i,e, receipts issued by Respondent forming the basis of

transaction between the parties apparently does not contain

necessary ingredients of a contract that can be enforced under

MOFA and/or RERA to consider reliefs sought in the complaints and

Appeals. To staft with, the receipts do not bear name of the project

in which the flats are sought to be booked. Even considering the

acceptance by Respondent in letter dated 02.08.2019 that the flats

were proposed to be booked in the project at Byculla or in the

'Royale' project at Andheri registered under RERA, the application

of MOFA/RERA provisions to the cases under consideration is

fraught with problems and issues as the transactions neither

provide details relating to flats i.e. location, number, dimensions,

per sq.ft. rate and the total price of flat etc. nor any agreement is

produced to evidence completion of transaction of sale and to

determine delay in possession.

23. In the absence, pafticularly, of the total consideration for

the flats proposed to be transacted, no directions can be given

under Section 13 for execution of agreement and allotment of flats

in the 'Royale' project at Andheri (West). In para 3(n) of Appeal

and para 11 of the written arguments, Complainants have

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Complaint No.CC006000000161350/161348

attempted to provide market price of the flats in the years 2011-

12 and the projected current market price for claiming loss

allegedly incurred by them. It is to be noted that no such

information was provided to the Authority during the complaints.

More impoftantly, the agreed price forms the crucial and invariable

basis of any commerclal transaction. Here are the cases, where no

document is submitted that a particular total price was ever agreed

for the flats to be purchased, Therefore, in the absence of any

agreed price between the pafties, one sided and arbitrary per sq.ft.

price and the total market price as suggested by Complainants

cannot be accepted as such an approach would have consequential

complications which may lead to multiple litigations.

24. More pertinently, date of possession is also one of the

most crucial ingredients of the contractual arrangements between

the allottee and Promoter under MOFA as well as RERA. No

document is brought on record by Complainants to show that

Respondent has ever promised to offer possession by 2017 as
sought to be claimed without any basis by Complainants in para

,L a(D) of the complaints and para 3(e) of the Appeals. It is peftinent

to note further that no such claim is also contended in the written

arguments filed by Complainants. No mention to that effect is also

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Complaint No.CC006000000151350/161348

found in the communications exchanged by and between the

parties placed on record. In the result, we find no substance in the

said contentions and consequently no delay can be made out to

consider application of Section 18 of RERA to grant any reliefs as

sought in the Complains/Appeals.

25. In a nutshell, it is reiterated that receipts for the amounts

paid by the Complainants being the sole basis of transactions

between the parties lack necessary ingredients of a valid and

complete contractual arrangement as discussed hereinabove. The

same therefore in the absence of any allotment, agreement for sale

etc. containing necessary details, are insufficient and irrelevant for

bringing the transactions in these matters within the ambit of MOFA

and/or RERA. At best, the transactions can be termed as

negotiations between the padies for purchasing the flats which did

not culminate in full fledged and complete contracts enforceable

under MOFA/RERA. In view of the shortcomings noticed in the said

transactions as above, RERA provisions cannot be applied to the

proceedings under consideration, We accordingly agree with the

view taken by the Authority while rejecting the claims of

Complainants as provisions of RERA would not apply to the
transactions put forth by Complainants for considering the reliefs

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Complaint No.cC006000000161350/161348

sought in the complaints and/or Appeals. In view thereof, it would

be futile to consider other contentions urged by the pafties

regarding the Complainants being investors or genuine buyers, the

veracity of claims with refund to alleged payment of cash amounts

etc.

26. In view of above observations, we find no reason to

interfere in the impugned order and answer the points accordingly.

The Appeals therefore deserve to be dismissed and hence, we pass

the following order:

ORDER

1. Appeal Nos. AT006000000052549 and

4T006000000052554 filed against impugned order dated

25.02.2020 in Complaint Nos. CC006000000161350 and

CC006000000161348 respectively are dismissed alongwith

the pending Misc. Applications, if any.

2. No order as to costs,

3. Copy of this order be communicated to the Authority and

the respective parties as per Section 44 (4) of RERA.

(S.S, (sH R. JAGTAP)

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