BEFORE THE MAHARASTITRA REAL ESTATE REGULATORY AUTHORITY, MUMBAI Virtual Hearing heid through video conference as per MahaRERA Circular No. : 2Z / 2O2O REGULATORY CASE NO. 6 OF zffzS ASHWAPLATINUM PROJECTNAME ASHWAMEDH BTIILDERS AND DEVELOPERS ... PROMOTER (Par tnership Firm) MRS. DARSHANA NILESH SAWANT APPLICANT Versus 1. MR. SANJAY RAMDASTHAKKAR 2. MR. MILINDMADHUKARMORE 3. MR.PRADEEPHARISALVI 4. MR. RAVIDRAARUN]ADHAV 5. MR. JATIN LAKSHMIKANT NATHWANI 6. MR. NILESH MAHENDRA THAKKAR 7. MR. KAMALGOBINDRAMSANCTAM 8. MR. HIREN CHUNILAL NAGARIYA 9. MR. JATINSHAH 10. MRS. NARENDRA SHAH/JITENDRA MEHTA 11. MR. ATULSEJPAL / SUNrLlAju/ BTPTNSHAH 12. MRS. SHEETAL VINITMANE 13. MR. ROSHANI. lArN 14. MR. TANAII MAHADTK/ MRS. POOIA MAHADIK/ MR. SUNIL NARAYN SAry MR. RUPLALNARAYANSAW RLSPONDENTS MAHARERA PROJECT REGTSTRATION NO. p518{Xn05535 ORDER December 04, 2023 (Date of oirtual hearing - 25.10.2023, matter reseroetl for ortlcr) Coram: Shri. Ajoy Mehta, Chairperson, MahaRERA Shri Mahesh Pathak, Hon'ble Member-I, MahaRERA CA Ashr,,,in Shah for the Applicant Aclvocate Jatin [.al*,ani ior Respondent No.l Page 1of 7 "li'- S"tt--rt, \- Hiren Nagaria- Resf,ondent No.S w,as present in person. 1 The Applicant is a parhrer in the Promoter firm which had registered the project namely "ISHWA PLATINUM" under section 5 of the Real Estate (Regulation and Development) Act, 2015 ("said Act") of ReaI Estate Regulatory Authority ("RERA") bearing MAHAREITA Registration No. I,518(X)O05G3G (hereinafter referred to as the "said Proiect"). Respondent No. 1 is another parhrer in the Promoter partnership firrn. 2 O^ 28.08.20'23, an application was made by the Applicant for seeking following reliefs: " 5.1 That the present application be alloued. 5.2 That the Respondrnt No. 1 be restrained further Jrom carnlng out any such unlatnful actiaities; 5.3. That the trunsaction carietl out Q1 tlu Respondent No.l with Respondent Nos.2 to 7 be declared null and uoid in tlrc interest of projcct conrpletion of Wing B; 5.4 Tlat Ld. Authority may xt aside the subsequent sale oI the apartments/ flats/ units as inoalid,/ null/ uad aruL may dtclare the salc as oalid salc before this Ltl. Authority; first 5.5 That the Ld. Authoifu may tleclare Respondent Nos. 2 to 7 as not the Allottees as LleJinetl under Section 2(d) of tb said Act; 5.6. Tlwt the necessary directions/ instructions may be issued to the concerned Sub Registrar to take appropiate steps towards cancellation of all tlte illegal agreemtnt for sale betueen tfu Respondcnt No.7 aith Respondent Nos. 2 to 7; 5.7. Thnt the Ld. Authority may direct RespondEnt Nos.2 to 7 to not to carry out transaction uitlt Respondtnt No.1 and further Respondent Nos. 2 to 7 may also be directed to not to create any 3rd parhl ights on tfu apartnunt fat unit for rohich agreeffient to sell is executit r: antl registered by Respondent No. 1; 5.8 That the Ld. Authority nny direct ResponLlent No.1 not to furtlur mnke any adjustnrent to loan creditors qccount lry issuing any receipt to the neat purcha-ser and not to handotter tlte possession of tht apartment to Respondent Nos. 2 to 7; 5.9. Tlut the Ltl. Authoifu may ryrmit opening of neut tlesignated bank account uithout signature of tla Respondrnt No.7 to auoid any misuse of the ofteration of tfu said bank account by Respondent No.-l; 5.10 That the Ld. AuthoitV may ryrmit Applicant to collect balance receioable from Respondent Nos. 8 fo -14, if any, and execute and registd the Agreement to Sell utith Respondcnt Nos. I to 10 antl -12 to 14; 5.11 Tlut tlu Ld. Autltority nuy permit Applicant to lurulozter lazoful possession of tle apartnlent to Respondent Nos. 8 fo 10 and nay pemtit Applicant to landooer lawful possession of thr apttrtmcnt to Respontlent Nos 12 to 14 upon receipt offull occupation certificate; 5.12 Thnt the Ld. Authorifu mny direct Responfunt No.2 not to create any hinderance in the pos*ssion of the Respondtnt No. 11; PaBe2 of 7 \n Sac", 5.13 That Ld. Authori ty may hlacklist antl prohibit Respondent N o.1 tLt be proprietor, .tlu partner, director, ma.nager, nmnagenrcnt dez:eloper etc. of any etttity engagett in the real estnte dettelopmen t; 5.14'Ihat tlrc Applicant be not made liable for any act of the Responrlent No.1; 5.15 Tlat the Respondent No.1 be reaied ruaoy penarfu in liu of unfair trari.e practice qnd illegality comnitted further Respondeni No.l, be'teaied penalfu under .rqrious section 61 of the Real Estate (Regulation and Deztelopment) Act, 2016 io the ixtent of his share in tla sail partnership form for the iltegal acits committed; 5.16 Tlut Applicant shotrld also be paid the cost for the legal expense to tht tune of Rs, 1,00,000/- ultich tluy hazte incunetl in fling tlrc a1tplication. 5.17 Aru1 othtr ortbrs or directions as Lt\. Authority deems t in the interest of f iustice." --) In this regard the captioned case was heard by this Authoritv on,25.10.2023 wherein the following roznama was passed: " Applicant states that Respondent No.1. is a promoter and partner. Se,en units in _The the Project being units from 8 to 14 uere allottedhuoeaer the same ha,e been transferred together zoith the loan creditors. As a result of this, the Appricant hnd approacrud thr RERA for fteezing their account aru). accordingly, the account was frozen. ihe Ayplicant has apyoacfud bank directly delreezing tfu account. The Applicant now seeks ortlers for ftom RERA to defreeze the account with only him as a single signatory for the operation of tlu bank account so that he can complete tlu project ani hnndooer iht possession. The Respondtnt No.l states thnt thtre is a partnership dispute and the matter is undergoing arbitrution and the outcome of thnt should resohte the issues. Further, the freezing _of tht account from the bank was sought by tfu applicant himself. The Respondent No.1 opposes the defeezing of the account and seeks that ord.er be giLen for bolh partners to sign the acrcunl. Parties are at liberty to fle written submissions, if any, on or before 20.11.2023 subsequent to which, the mntter tuill be reserued for order..,, 4. The Applicant (Promoter) has stated the following for seeking reliefs unrler the sairl Application: a. That the Promoter firm is a partnership as per the partnership Deed dated 13.04.2009 between 4 parhlers being the Applicant, the Respondent No.1, Nilesh Dattaram Sawant HUF ar-rd one Mrs. Rekha Sanjay Thakkar. b. That the said Project is being developed as an SRA project consisting of 2 sale buildings being Wing A (Ground + 22 floorc) and Wing B (Ground + 7 floors). c. That the Promoter firm availed loans from various lenders to complete the said Project and the Applicant as well as the Respondent No.1 were aware of the same. Page 3 of 7 L;nJ'L 'Jl t> ^r:/a d. The Applicant states that the Respondent N os. 2 to 7 are unsecuretl creditors and Respondent Nos. 8 to 14 are allottees under section 2(c{) of the said Act. e. That the Promoter firm has allotted following flats to the Respondent Nos. g to 14 from the year 2010 to 2018 (hereinafter referred to as the ,,said flats,,). Details of the units allotted with tespective dates of agreements and other details are mentioned hereunder in tabulated form for ease of reference: FLATS RESPONDENT DATE OF ALY TOTAL AMOUNTS ALLOTTED NOS. AFS: CONSIDERATION RECEIVED (Rs.) A-20[2 8 Not mentiohed 1,05,84,000 1,05,84,m0 A-302 9 26.M.201O (AL\ 30,00,0m 2,00,000 A- 501 l0 Not mentiohed 70,00,000 15,00,000 A- 243 II 31.03.2023 (AFS) 1,34,67,7W 1,U,67,7ffi B- 203 72 11.02.2015 (AL) 4s,00,000 24,N,ON B- 502 l3 30.09.2014 (AL) 12,55,offi 7,50,OO0 B-204 14 17.01.2018 (AL) 50,2s,000 I4,50.000 f. That the above-mentioned details of booking were duly clisclosed by the Promoter firm to MahaRERA under the sold-unsold inventory compliance in the year 2022. g. That the Promoter firm has received extension to the said project registration under section 7 (3) of the said Act with the consent of more than 517o allottees including some of the Respondent Nos. g to 14. h. That the Respondent No.1, in spite of knowledge of the above_mentioned facts, has illegally and fraudulently executed Agreements for Sale with other persons being Respondent Nos. 2 to 7 (new purchasers) for same flats which were earlier allotted to the Respondent Nos. g to 14. Furthet, the Respondent No. t has also adjusted the unsecr:red loan creditors monies towards consideration payable by the new purchasers. i. Details of the units allotted to new purchasers by Respondent No. 1 are mentioned hereunder in tabulated form for ease of reference: (NEW FLATS PURCHASERS) DATE OF TOTAL UNSECURED ALLOTTED RESPONDENT ATS3 CONSIDERATION LOAN (Rs.) ADIUSTED (RS.) NOS. I AL- Allotment I-efter 2 AFS- Agreement for Sale I ATS- Agreenrent to Sell Page 4 of 7 \h"\I^ Sol,l.-* A- 2002 2 '11.04.2023 Not mentioned 38,00,000 A-302 79.04.2023 36,00,000 31,00,000 A- 501 4 Not fientio ed 41,00,000 36,00,000 A- 203 2 27.04.2023 95,00,000 13,00,000 B- 203 ) 09.0s.2023 52,00,000 200,000 B- 502 6 09.05.2023 40,00000 25,00,000 B- 204 10.05.2023 Not hvntb e.l 20,00,000 That the Applicaat has already filed a police complaint to report the fraud, cheating and fraudulent transactions by the Respondent No. 1 and has also issued notices to Respondent Nos. 2 to 7 (ulsecured creditors) and Respondent Nos. 8 to 14 (original allottees) of the same. 5. The subrrissions of the Respondent No.1 are as follows: a. That the Respondent No. 1 was not aware of the sale/allotrnent of the said flats by the Promoter firm to the Respondent Nos. g to 14 neither was the Respondent No.1 aware about any receipt of amounts for the said flats. b. That the records submitted by the Applicant to MahaRERA and adduced herein for substantiating their craims cannot be relied upon as the Respondent Nos. 8 to 14 are not actual allottees in the said project. The Applicant has misrepresented the same to the Authority and the said submissions are questionable. The same is evident from the fact that the Applicant only chose to upload the detaits of the purported allottees on the RERA prolect registration website only in the y ear 2022. c. That the present dispute pertains to matters between the partners of the Promoter firm and the sarne is beyond the purview of the Authority. d. That the Applicant has also filed an Arbihation Application before the Hon ble Bombay High Court bearing No .233 of 2023 and on her own accord had instructed the bank to freeze the bank account of the said project. However, now the Applicant is attempting to misguide the Authority in order to defreeze the said bank account with Authorization to operate being with the Applicant only to gain sole control of the bank account. Page 5 of7 rL}}- SaJLd^ ry 6 Before framing the issueg it is pertinent to note that the Applicant has not adduced any evidence such as agreement for sale copies / allotment letters to show the allottees / unsecured creditors in the said project. Keeping the aforesaid in mind and from the submissions of the parties the preliminary issue that needs to be examined is whether the Applicant is entitled to any reliefs urufur RERA? 7 It is observed that the Applicant had approached the banks and had sought freezing of the bank accounts of the promoter firm. It is not clear nor is there any document to show as to why the Applicant is now approaching a dilferent Authority for once again activating the promoter firm bank account. To complicate matters further it is not on record as why in the first place the account was sought to be frozen. Further it is also not on record to show the reasons that led to freezing of the Promoter firm bank account a,.d whether the same has now been addressed. The Applicant does not also state what led him to approach RERA for such a matter. The Applicant further fails to point out the legal provisions that would permit the Authority to activate an account frozen by a bank. It is also on record that there is an arbitration proceeding bearing No. 233 of 2023 pending before the Hon'ble Bombay High Court between the Applicant and the Respondent No. t herein. It is not on record to indicate the matters on which determination has been sought through the process of arbitration. The stafus / outcome of the arbitration proceedings is also not known nor the same is on record before this Authority. 8 Both the Partners of the Promoter firm herein namely the Applicant and the Respondent No. t have alleged sale of flats without the knowledge of the other. Infact the Applicant has alleged that certain flats have been sold by Respondent No.1 for second time even when the first set of allottees were on record. None of the Parties have brought any evidence on record to indicate how the sales in the said Project are proceeding. PaBe6 of 7 U6nJt S dA; 9 With the above circumstances on record the Authority can only conclude that the affairs of the said Project are being conducted in a mamer that would not inspire confidence in the allottees or the Authority. The conduct of both the Parties namely the Applicant and the Respondent No. 1 appear to be opaque and not in the best interest of the said Project. In view of the above the Authority can reasonably conclude that allowing the said Project to proceed with the prevailing set oI affairs would only jeopardise the interest of allottees therein. 10. In view of the above and the circumstances as enumerated hereinabove the Authority concludes that the balance of connivence in the present context would be in denying the Applicant any remedy under the said Act. The issue at para No. 5 is answered in negative. 11.. The Authority however expresses concern at the mannet in which the partners of the Promoters are conducting themselves. The Authority is mandated to protect the rights of the allottees and hence must take certain conclusive steps to ensure that their rights are not jeopardised and the monies paid by them for the flats in the said Project are protected. In view of this mandate the Authority hereby directs that the said Project registration to be kept in abeyance till further orders of the Authority. The partners of the Promoter firm are directed never to advertise, market, book, seil or offer for sale, or invite person/s to purchase in any manner any apaftnent / unit in the said Project. L2. The Authority shall however give liberty to the allottees of the said Project to approach the Authodty in case of any grievances. No order as to cost. S^,tUJ--J, (Mahesh Pathak) a) Member-I, MahaRERA Chairperson, Page 7 ol 7