Appea No 41006000000134173

BEFORE THE MAHARASHTRA REAI ESTATE

APPELLATE TRIBUNAI-, MUM BAI

Appeal No. AT006000000134173 ol 2022

In
Complaint No. CC0O6OOOOOO196042

Mr. Sanjiv Kochhar

Address:
Shivam Logistics Eastern Court,
202, A-Wing, Tejpal Road,
Vile Parle (East),
lYumbai - 400 057. Appellant

Versus

Sai Siddhant Developers

Having its address at 1 Ramkrupa,
Devji Bhimji Lane, Mathuradas Road,
Kandivali (West),
Mumbai - 400 067. Respondent

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

DR. K. SHIVA]I, MEMBER (A)
DATE : 6th October, 2023
CORRIGENDUM

It has been brought to our notice that the typographical

mistake occurred in the name of the Advocate of the Appellant in the

ludgment dated 12th September, 2023 in the captioned Appeal, which

needs to be corrected as under :-

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 APPea No. AT006000000134173

The name of the advocate of the Appellant in the Judgement

is to be read as Mr. Karan Aiya instead of Mr, Karan Iyer.

nlrl
I V.-I
(D K. sHrvArr) (SHRI RflM R. J AGTAP)

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 1. Ap pea l- AT006000000134173

BEFORE THE MAHARASHTRA REAL ESTATE

APPELLATE TRIBUNAL MUMBAI

AppEAL NO. AT006000000L34L73 0F 2022

IN
coM p LAr NT N O.CC0060000000 L96042

Mr. Sanjiv Kochhar l

Shivom Logistics Eastern Court, l
202, A-Wing, Tejpal Road, l
Vile Parle (East), Mumbai-400 057. l ...Appellant

-VS-

Sai Siddhant Developers l

Having its address at 1 Ramkrupa, l
Devji Bhimji Lane, Mathuradas Road, l
Kandivali (West), l
Mumbai-400 067. l ...Respondent

Adu. Mr Karan lyer for Appellant.

Adu, Mr Shrey Shah for Respondent.

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

DR. K. SHTVAJT, MEMBER (A)

DATE : 12th September,2023.

(THROUGH VrDEO CONFERENCTNG)

JUDGMENT

[PER : SHRIRAM R. JAGTAP, MEMBER (J.)]

Being dissatisfied with order dated 9th November 2022

passed by the learned Chairperson, MahaRERA (for short "the

Authority) in Complaint No.CC0060000000196042, the complainant,

who is an allottee in complaint, preferred instant appeal to raise

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grievance that the impugned order has not granted reliefs sought in his

complaint.

2l Appellant and respondent will hereinafter be referred to as

"allottee" and "developer'for the sake of convenience

3I The brief facts culled out from the pleadings of the parties

reveal that the developer has launched a residential housing project

namely "D.N. Nagar Krishna CHS Ltd." at Building No.3, D.N. Nagar,

Ganesh Chowk, Andheri (West), Mumbai. On 2nd May 2012 the allottee

had booked a Flat bearing No.1203 in the said project for a

consideration of Rs.74,90,000/- and out of which the allottee has paid

Rs.52,39,5501- to the developer from time to time. Despite having

received amount more than 20o/o of total consideration, the developer

had neither issued allotment letter to the allottee nor executed

agreement for sale. Despite incessant follow-ups the developer did not

execute agreement for sale. Being dissatisfied with the conduct of the

developer the allottee had filed a complaint bearing

No.CC006000000078442 of 2019 against the developer for seeking

registration of the agreement for sale in respect of subject apartment

and for compensation due to delay in possession, which was disposed

of vide order dated 10.6.2019 passed by the then Chairperson,

MahaRERA, as the complaint was withdrawn because parties had

amicably resolved and settled the issue. The then Chairperson,

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MahaRERA had also accorded liberty to the allottee to approach

MahaRERA again if any of the terms of the settlement is violated by

the developer in future. Pursuant to the said order, the allottee had

approached the developer to adhere to the terms of the settlement.

Besides, vide legal notice dated 3t.L.2020 the allottee had called upon

the developer to execute and register agreement for sale, but the

developer miserably failed to reply the same. Therefore, the allottee

was left with no other alternative but to file complaint and sought

reliefs. Accordingly, the allottee had filed complaint seeking reliefs viz.

(1) refund of entire amount with interest aggregating to amount of

Rs.89,78,365, (2) a compensation to the extent of Rs.5.00 lakhs for

mental agony and harassment and (3) costs of litigation of Rs.75,000/-.

4l The developer had appeared in the complaint and

remonstrated the claim of allottee. The defence of the developer which

emerged from the impugned order and material on record is that the

complaint is not maintainable as the allottee would only have remedy

to proceed with the execution of order dated 10.6.2019 and would not

have remedy to file fresh complaint. The reliefs sought by the allottee

in the second complaint are contrary to the reliefs sought by the allottee

in first complaint. In accordance with the consent terms executed

between the allottee and the developer it is inter alia agreed and
confirmed by the parties that the developer was in process of procuring
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further commencement certificate from MHADA in order to proceed

with the construction of the subject project beyond gth floor and

commencement certificate may be issued to the developer by end of

September 2019 and only thereafter the developer would execute and

register agreement for sale with respect to the subject flat within a

period of 15 days subject to payments by the allottee towards statutory

taxes including stamp duty, GST etc. The allottee was at liberty to

approach MahaRERA in the event of non-compliance of the consent

terms.

sl It is fufther case of the developer that neither of the pafties

could have set a fixed date for MHADA to issue commencement

ceftificate on or before September 2019 and that this date was only

indicative of possibility of MHADA issuing commencement ceftificate by

post which, the proposed agreement for sale would be executed.

However, till date the commencement certificate has not been issued

by MHADA. Consequently, the registration and execution of agreement

for sale has not been effected. There is no obligation on the part of the

developer to execute agreement for sale on a particular date" Thus,

alleged cause of action is misconceived by the allottee and therefore

the complaint is not maintainable. Allotment letters dated 7.5.20L2 and

2.LL,20LB issued by the developer did not disclose the date of

possession of the subject flat.
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6I The developer has further contended that since no

agreement for sale has been executed between the parties, therefore,

allottee is not entitled to seek relief sought in complaint under Section

18 of RERA, 20L6. Several meetings held between the parties wherein

the allottee was apprised by the developer that the project is completed

till 9th floor out of 16 floors and the possession for fit out has been

given to existing members of the Society till 9th floor. The developer

has also applied for part occupation certificate and is waiting for further

commencement certificate beyond 9th floor. A supplementary

development agreement came to be executed between the developer

and the members of the Society wherein majority of the members of

the society have given their free consent for completion of the re-

development project by June 2023 which is also mentioned on the

RERA website. The developer is ready and willing to execute and

register agreement for sale.

7l The learned Authority heard pafties to the complaint and

dismissed the complaint by holding that the complaint is barred by

principle of res-judicata.

8I We have heard learned Advocate Mr. Karan Iyer appearing

for appellant/allottee and learned Advocate Mr. Shrey Shah appearing

for respondent/developer.

eI The succinct of argument of learned Advocate Mr. Karan

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Iyer appearing for the appellant is that on or about in the year 20Lz

the allottee had booked flat bearing No.1203 in the project of the

respondent/developer for consideration of Rs.74,90,000/-. It is not in

dispute that the allottee has paid Rs.52,39,5501- which is more than

20o/o of total consideration. As per provisions of MOFA the developer

was supposed to execute agreement for sale before acceptance of

amount more than 20o/o of total consideration from the appellant.

However, till date the developer has not executed agreement for sale.

This is clear violation of Section 4 of the MOFA.

10] The learned Advocate has further submitted that when the

appellant had booked flat at that time commencement certificate was

not issued by the concerned Authority. It means the developer did not

have even permission to construct the building and despite this he had

accepted booking amount from the appellant. This conduct of the

developer shows that he had played a fraud on the appellant. In spite

of incessant fallow ups by allottee, the developer did not execute

agreement for sale which constrained the allottee to file complaint

bearing No.CC006000000078442 of 2019. In the said complaint, the

appellant had sought reliefs of execution and registration of agreement

for sale and compensation due to delay in possession. The first

complaint was disposed of on 10.6.2019. The allottee had filed

application for withdrawal of the said complaint and at the same time
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liberty was sought to file fresh complaint. While disposing of the said

complaint, the then Chairperson, MahaRERA had accorded liberty to

the appellant as sought by him. Thereafter by the notice dated

3t.t.2020 the allottee had called upon the developer to execute

agreement for sale, however, the developer did not have

commencement certificate for the said project and therefore, he could

not execute agreement for sale, as a result thereof this led to new

cause of action to allottee to file complaint. However, the learned

Authority declined to grant relief of refund of amount with interest

holding that the complaint is barred by res judicata. The Hon'ble Apex

Court in "K. Sivaramaiah Vs. Rukmani Ammal" has held that a

judgment given in a suit which has been permitted to be withdrawn

with the liberty of filing a fresh on the same cause of action cannot

constitute res judicata in a subsequent suit filed pursuant to such

permission of the Court. In the instant case, the relief sought in the

second complaint is totally different than relief sought in first complaint.

The second complaint is based on new cause of action. This fact is

ignored by the learned Authority.

111 The learned Advocate has further submitted that the

appellant is entitled to refund because of failure of developer to

complete the project. No doubt the developer has failed to execute

agreement for sale, but at the same time it cannot be ignored that the
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developer is at fault by not executing agreement for sale though he

received substantial amounts from the allottee. Under the

circumstances, the appellant is entitled to reliefs as sought. It is specific

contention of the respondent that the allotment letter does not mention

any date of completion of the project or the date of possession and

therefore, the claim of appellant does not fall under Section 18 of RERA.

However,, the Hon'ble Apex Court in "Fortune Infrastructure Vs.

Trevor D'lima" has held that a person cannot be made to wait

indefinitely for the possession of the flat allotted to him and he is
entitled to seek the refund of the amount paid by him along with

compensation. A time period of 3 years would have been reasonable

for completion of the contract. Whenever builder has refused to

perform the contract without valid justification, the home buyer is

entitled to for compensation as he has been deprived of price escalation

of the flat.

127 Since the respondent/developer has committed violation of

Section 13 of RERA and Section 4(1A) (ii) of MOFA by not executing

agreement for sale even after legal notice dated 3L.L.2020 and

therefore the appellant is entitled to relief sought for in the complaint.

Since there is no progress in completion of project, the appellant is

entitled to withdraw from the project. Accordingly, appellant has

exercised his right to withdraw from the project and claimed refund of
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amount with interest. The claim of the appellant very well falls within

the ambit of Section 18 of RERA Act, 2016. and therefore, the appeal

is liable to be allowed with costs. The learned Advocate has placed his

reliance on the following citations-

(1) K. Sivaramaiah Vs. Rukmani Ammal

(2) Manjit Singh Dhaliwal & Ors. Vs. JVPD

Propefties Pvt. Ltd.

(3) Foftune Infrastructure Vs. Trevor D'lima

[(2018) 3 S.C.R. 273]

(4) Mrs. Amrita Kaur and Anr. Vs. M/s East

& West Builders and Ors.

131 An abridgment of argument of learned Advocate Mr. Shrey

Shah appearing for the respondent/developer is that it is not in dispute

that the appellant had filed complaint bearing No.CC006000000078442

of 2019 inter alia seeking execution and registration of agreement for

sale in respect of subject flat. The said complaint was disposed of by

virtue of terms of settlement dated 10.6.2019 entered into between

the appellant and respondent. The said consent terms contemplate that

agreement for sale would be executed within a period of 15 days from

the date on which the respondent procures further commencement

ceftificate from MHADA so as to enable them to proceed with the

construction of the said project beyond 9th floor subject to payment by

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the appellant towards statutory taxes, stamp duty, GST etc. The second

complaint was filed alleging failure of respondent to execute agreement

for sale in spite of service of legal notice by the Advocate of allottee.

However, under the consent terms both parties had understood and

agreed that execution and registration of agreement for sale would be

effected within a period of 15 days subject to payment by the allottee

towards statutory taxes, stamp duty, GST etc. upon issuance of

commencement certificate by MHADA and that procurement of

commencement ceftificate would be endeavoured to be procured by

the respondent by September 20t9.It is to be noted that neither of

the parties could have set a fixed date for MHADA to issue
commencement certificate on or before September 2019. The appellant

could have exercised his right to claim relief which he had claimed in

the first complaint only after obtaining further commencement

ceftificate.

L4l The learned Advocate has sorely submitted that it is not in

dispute that till date the commencement certificate has not been issued

by MHADA and the respondent is pursuing the same" Therefore, the

question of execution and registration of agreement for sale does not

arise. Besides there is no obligation on the part of the respondent to

register the agreement for sale on particular date. Therefore, alleged

cause of action is misconceived by the appellant and therefore the

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complaint was not maintainable.

151 The learned Advocate has further argued that the appellant

had sought reliefs under Section 18 of RERA Act, 2016 which is

inapplicable since the ingredients that trigger a relief of refund of

money from the respondent/developer are non-existence. There is

neither a registered agreement for sale nor agreed possession date

mentioned in the allotment letters. The absence of registered

agreement for sale ought to invalidate a plea for reliefs under Section

18 of RERA. In Mohit Melwani Vs. A A Estafes, this Tribunal has

ruled that an allotment letter which did not have a specified date of

possession could not have been said to have been a violation of Section

18. Therefore, the learned Authority has rightly held that the complaint

is not maintainable and it is barred by principles of res judicata. The

impugned order was reasonably passed and does not warrant

interference. Since the first complaint had already been disposed of in

accordance with the consent terms, the appellant is now estopped from

reagitating the same issue for the same premises and seeking different

reliefs with respect to the subject flat which was subject matter of the

first complaint. The respondent has not violated any of the provisions

of RERA Act, 2016. The current status of the project is that it is

completed till 9th floor out of 16 floors and possession for fit out has

been given to the respective members of the Society till 9th floor. The
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respondent has also applied for a part occupation certificate and

waiting for further commencement certificate beyond 9th floor,

With these contention learned Advocate has prayed to

dismiss the appeal with exemplary costs.

16] After considering the submissions of the parties,

documents on record and the impugned order, the following points are

arise for our determination and we answer the points for the reasons

to follow-

POINTS ANSWER

(1) Whether the appellant is entitled

for refund of amount paid with

interest on account of delay in

possession? In the affirmative

(2) Whether impugned order calls

for interference in this appeal? In the affirmative

(3) What order? As per final order

REASONS

L7) It is not in dispute that on 2.5.20L2 the allottee had booked

a flat bearing No.1203 in the subject project for consideration of

Rs.74,90,000/- and out of which the allottee has paid Rs.52,39,5501-

to the developer from to time. It is further not in dispute that no

agreement for sale has been executed even though the allottee has
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paid more than 20o/o of total consideration amount in the course of

time. Despite incessant follow ups by the allottee, the developer did

not execute agreement for sale. Being aggrieved by the conduct of the

developer the allottee had filed complaint bearing no.

No.CC006000000078442 of 20Lg inter alia seeking execution and

registration of agreement for sale in respect of subject flat and also for

compensation due to delay in possession, which was disposed of vide

order dated 10.6.2019. The material produced on record by the

appellant would show that the allottee had filed application (page-103)

in the former complaint proceedings for withdrawal of the complaint

with a libefi to approach the Authority again if any of the terms of

settlement is violated by respondent. The then Chairperson, MahaRERA

had disposed of the complaint and at the same time granted libefi to

allottee to approach MahaRERA again if any of the terms of settlement

is violated by the respondent.

18] It is significant to note that by legal notice dated 31.1.2020

the allottee had called upon the developer to execute and register an

agreement for sale in his favour. It is not in dispute that the developer

has neither replied the said notice nor executed and registered the

agreement for sale. It is worthy to note that both Sections 4 of MOFA

and 13 of RERA, 20L6 cast obligations on the promoter to execute

agreement for sale before receiving20o/o and 10% amount respectively

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of the total consideration. Nothing is placed on record to show that the

developer had forwarded draft agreement with terms and conditions

stipulated therein prior to legal notice dated 3t.t.2020 issued by the

allottee. The developer having himself failed to comply with the

obligation cannot take advantage of his own wrong to deny the benefit

under Section 18 of RERA. Section 4(1AXii) of MOFA casts obligation

on the promoter that before accepting advance payment or deposit

more than 20o/o of sale price, the promoter is liable to enter into written

agreement for sale and mention in it the date by which the possession

is to be handed over to the allottee. Section 13(2) of RERA also casts

similar liability on the developer. Therefore, we are of the view that the

developer cannot take advantage of his wrong and in fact the developer

has contravened or violated the provisions of Section 4 of MOFA and

Section 13 of RERA.

191 In the absence of formal agreement for sale executed by

the parties, the date of possession can be deciphered from any

documents such as allotment letter, broacher, pamphlet, email

communications etc. A perusal of material on record would show that

there is no mention of date of possession in any of the documents or

communications. In a case of "M/s Fortune Infrastructure (now

known as M/s Hicon Infrastructure) & Anr. Vs. Trevor D'Lima

& Ors. [(2018) 3 S.C.R. 2731, the Hon'ble Apex Court has held that
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when the date of possession is not mentioned in the agreement, the

promoter is expected to handover possession of the unit within a

reasonable time and a period of three years held to be reasonable time.

In the instant case the allottee had booked flat in the year 20LZ and

deposited substantial amount to the developer from time to time.

Pursuant thereto the developer had issued receipts to allottee.

However, there is no mention of date of possession in the payment

receipts. Therefore, in view of the ratio and dictum laid down by the

Hon'ble Apex Court the developer was supposed to handover

possession of the subject flat to allottee by 1't May 2015. However, it

is not in dispute that till date the developer has not executed and

registered the agreement for sale nor handed over possession of the

subject flat to allottee.

20] It is thus clear from the above that the developer has

committed violation of the provisions of MOFA and RERA Acts by not

executing requisite agreement for sale. We also note that while

examining the claim of the allottee, the learned Authority did not

consider several documents submitted on record by the allottee, which

showed that the developer is not only irresponsive in his conduct, but

also has least regard for his legal obligation towards flat purchasers.

The payment receipts produced on record by the appellant/allottee

show that though the developer has received huge amounts from the
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allottee since more than nine years, he has not executed agreement

for sale. Such indifferent attitude of the developer who has gone into

inaction by not declaring the date of possession in any of the

documents nor executed an agreement for sale calls for serious

cognizance of the Authority. However, the learned Authority has

declined to grant relief to allottee only on the ground that the complaint

is hit by principles of res judicata.

2Ll It is peftinent to note that the former complaint was

withdrawn by the appellant. It means the former complaint was not

decided on merits. Matter in issue in the former complaint was not

heard and decided on merits by the then learned Chairperson,

MahaRERA. It has been held by the Hon'ble Apex Court in K.

Sivaramaiah Vs. Rukmani Ammal [(2003) SUPP. 6 S.C.R.] that-

"The short questionwhich arisesfor decision in this appeal is whether

the appellant's suit filed in the year 1994 can be said to be barred by
res judicata. Having heard the learned counsel for the parties, we ere
satisfied that the High Court and the two Courts below have commit-
ted an error of law in holding the suit filed by the appellant to be
barred by res judicata. In the present suit instituted in the year 1994,
the oppellant shall have to establish the acquisition of prescription
right of easement under Section l5 of the Indian Easements Act, 1882
by reference to the date of the institution of the suit. This issue did not

w and could not have arisen for decision either by way of ground
attack in tlte 1989 suit Jiled by the appellant or by way of defence in
of

tlte 1976 suit filed by the respondent's mother. Moreover, the 1976
suit filed by the respondent's mother was dismissed insofar as relief of
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injunction soughtfor by the respondent's mother against the appellant

is concerned. It was an admitted case of the parties, as has been noted

by the trial court also in its judgment dated 4th August, 1979, that the

openings in the western wall of the appellant had existed and yet re-
spondent's mother was held not entitled to the grant of compensation
because in the opinion of the trial court the remedy of the respondent's

mother was not to seek an injunction against the appellant but to raise

of
a wall on her own property so as to block the openings in the wall
the oppellant standing on his own property. By no stretclt of
imugination tlte judgment dated 4tlt August, 1979 can constitute res
judicatafor tlte purpose of tlte present situution.

So far as the Original Suit No. 735g/lg|g is concerned, the

findings recorcled in the judgment therein could ltuve constitutecl res

judicata but tlte fact remuins tltot tlte Appellate Court permitted tlte
witltdrawal of the suit und once tlte suit ltas been permitted to be

witltdrawn all tlte proceedings taken tlterein including the judgment

passed by the trial court ltuve been wiped out. A judgment given in a

suit wltich ltas been permitted to be witlulrswn witlt tlte liberty of

Jiling afreslt suit on tlte same couse of uction cannot constitute res
judicata in a subsequent suit filed pursuant to suclt permission of
tlte Court. "

221 It is not in dispute that after disposal of the former

complaint, by legal notice dated 3t,L.2020 the appellant had called

upon developer to comply his obligation. However, the developer has

neither replied nor complied with his obligation. This conduct of the

w developer led new cause of action for allottee to file fresh complaint.

Section 18 of RERA gives an option to the allottee either to continue

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with the project by claiming interest on delayed possession or to

withdraw from the project and claim refund of entire amount with

interest including compensation. The appellant has chosen next option.

Therefore/ we are of the view that the view taken by the learned

Authority that complaint is barred by res judicata is contrary to the ratio

and dictum led down by the Hon'ble Apex Court and also contrary to

the Section 18 of RERA.

237 It is specific contention of the developer that the absence

of registered agreement for sale ought to invalidate a plea for reliefs

under Section 18 of RERA and therefore, the appellant is not entitled

to relief of refund of amount with interest. We do not find substance

in the said contention of the developer. We should not be oblivious of

the fact that RERA Act as a welfare legislation, has been enacted mainly

to safeguard the interest of the allottees. Mere non-mentioning of date

of possession or non-execution of agreement for sale cannot be

allowed to operate in favour of the developer who, like respondent, is

not responsive to the cause of the allottee. While explaining the scope

of Section 18 of RERA, the Hon'ble Apex Court in para-25 of of M/s

Newtech Promoter and Developers Pvt. Ltd V/s. State of Uttar

Pradesh fCivil Appeal Nos. 5745, 6749 and 6750 to 6757 of 202L)

that-

25. The unqualified right of the allottee to seek

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refund referred under Section 1S(1)(a) and Section

19(4) of the Act is not dependent on any contingencies
or stipulations thereof It appears that the legislature
has consciously provided this right of refund on
demand as an unconditional absolute right to the
allotteq if the promoter fails to give possession of the
apartment, plot or building within the time stipulated
under the terms of the agreement regardless of
unforeseen events or stay orders of the Court/T4ibunal,
which is in either way not attributable to the
alloffee/home buyer, the promoter is under an
obligation to refund the amount on demand with
interest at the rate prescribed by the State Government
including compensation in the manner provided under
the Act with the proviso that if the allottee does not
wish to withdraw from the project, he shall be entitled
for interest for the period of delay till handing over
possession at the rate prescribed.

247 Section 18 of RERA confers unqualified rights upon the

allottee to get refund of amount with interest if developer fails to

complete the project or is unable to give possession of the subject unit

by agreed date. We would like to reiterate that in spite of notice dated

3t.1.2020 the developer has failed to execute agreement for sale. The

developer having himself failed to comply with the obligations cannot

take advantage of his own wrong to deny the benefit under Section 18

of RERA.

251 For the foregoing reasons/ it crystal clear that the

respondent/developer has not only failed to execute and register the

agreement for sale but also failed to handover possession of the subject

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flat to allottee within reasonable period. It is not the case of the

developer that the allottee has committed default in making payment.

Therefore, w€ are of the view that the impugned order cannot be

sustained and calls for interference in this appeal. We answer the points

accordingly and consequently, proceed to pass the following order-

ORDER

1I Appeal No.AT006000000134L73 of 2022 is partly allowed.

2l Impugned Order dated 9th November 2022 passed in

Complaint No.CC060000000L96042 is set aside.

3I The respondent/developer shall refund the amount paid by
the appellant/allottee with interest at the rate 2o/o above as

per State Bank of India's marginal cost of lending rate from

the dates of payment of the said amount till realization of
the entire amount.
41 The charge of the amount shall remain on the respective
flat till realization of above amount.
sI The developer is directed to pay costs of Rs.20,000/- to the
appellant/allottee.
6l A copy of this judgment be communicated to the learned
Authority and parties as per Section 44(4) of RERA, 2016.

bn%
(DR. K. HIVAJI) (sH nfrnu n . JAGTAP)
Dond

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