BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY, MUMBAI Complaint No. CC006000000055911 Mr. Rajendra Eknath Pawar ..Complainant Vs M/s. Bright Sky Height Builder& Developer Private Limited ..Respondent MahaRERA Project Registration No. P51700009788 Coram: Dr. Vijay Satbir Singh, Hon’ble Member – 1/MahaRERA The complainant appeared in person. Adv. Bishwajeet Mukharjee appeared for the respondent. ORDER ( 29th December, 2020) (Through Video Conferencing) 1. The complainant had filed this complaint seeking directions from MahaRERA to the respondent promoter to allow him to withdraw from the project and to refund the entire amount paid by him along with interest and compensation as provided under Section 18 of the Real Estate (Regulation & Development) Act, 2016 (hereinafter referred to as “RERA”) with respect to booking of a flat in the respondent’s registered project known as “Galaxy Wing -5” bearing MahaRERA registration No. P51700009788 at Thane. 2. The complainant in this complaint was seeking refund along with interest and compensation under section 18 of the RERA. Hence after hearing the parties, this complaint was referred to Ld. Adjudicating Officer, MahaRERA/Mumbai to take appropriate decision in this case on merits vide interim direction of MahaRERA dated 29-10-2018. 3. Accordingly, the parties appeared and made their respective submissions before the Ld. Adjudicating Officer, MahaRERA/Mumbai and after hearing the arguments of both the parties and perusing the record, the Ld. Adjudicating Officer, MahaRERA/Mumbai was pleased to pass an order on 26-02-2019 and allowed the complainant to withdraw from the project and further directed the respondent to refund the entire amount paid by the complainant along with interest at the rate prescribed under section 18 of the RERA read along with relevant Rules i.e. Marginal Cost Lending Rate (MCLR) of State Bank of India plus 2%. The respondent was further directed to pay to the complainant an amount of Rs. 20,000/- towards the cost of the litigation. 4. Being aggrieved by the aforesaid order dated 26-02-2019 passed by the Ld. Adjudicating Officer, MahaRERA/Mumbai, the respondent preferred an appeal bearing No. AT006000000021461 before the Hon’ble Maharashtra Real Estate Appellate Tribunal. In the said appeal the Hon’ble Appellate Tribunal passed an order on 4-11-2020 and set aside the impugned order dated 26-02-2019 passed by the Ld. Adjudicating Officer, MahaRERA/Mumbai on the ground that the Ld. Adjudicating Officer, MahaRERA/Mumbai has no jurisdiction to order for refund and directed the MahaRERA to decide this complaint afresh within a period of 3 months. The parties were also directed to appear before the MahaRERA on 4-12-2020 for hearing. 5. Pursuant to the said order dated 4-11-2020 passed by the Hon’ble Appellate Tribunal, the Ld. Adjudicating Officer, MahaRERA/Mumbai again referred this complaint to MahaRERA to decide it afresh in view of its judgment dated 31.08.2020 passed in the case of Pankaj Kishore A g a r w a l a n d A n r, a n d c o n n e c t e d m a t t e r i n A p p e a l N o s . AT006000000052542 and AT006000000052543. 6. Accordingly, this complaint was scheduled for hearing on 18-12-2020 as per the Standard Operating Procedure dated 12-06-2020 issued by the MahaRERA for hearing of the complaints through video conferencing. Both the parties have been issued prior intimation of the said hearing and they were also informed to upload their respective documents in digital form as per the SOP dated 12-06-2020. 7. Pursuant thereto, the complainant appeared in person and the respondent appeared through its advocate. During the course of hearing, the complainant made his submissions. However, the advocate for the respondent stated that in this case the parties have filed reply/ rejoinder before the Ld. Adjudicating Officer, MahaRERA/Mumbai at the time of hearing. However the same are not yet been uploaded on record of MahaRERA. Hence he sought time to upload the same on record of MahaRERA. Hence in compliance of principles of natural justice, two days time was granted to both the parties to upload their documents on record of MahaRERA. However, inspite of specific directions, the parties could not upload the same on record of MahaRERA till date. Hence the MahaRERA has perused the submissions made by the parties and also the available record. 8. In the present case, prima facie, it appears that the Ld. Adjudicating Officer, MahaRERA/Mumbai after hearing the arguments of both the parties and after perusing the record made available to him i.e. reply / rejoinder passed the said order under section 18 of the RERA. The said order is passed by considering the facts/merits of this case. Moreover, the Hon’ble Appellate Tribunal while passing the said order has referred the matter to MahaRERA to decide afresh merely on the technical grounds that the Ld. Adjudicating Officer, MahaRERA/Mumbai has no jurisdiction to order for refund as per the provision of RERA. 9. The complainant during the course of hearing has stated that till date he has paid an amount of Rs. 35,75,500/- to the respondent and the date of possession mentioned in the registered agreement for sale has already been lapsed. Hence he prayed for similar reliefs as granted by the Ld. Adjudicating Officer, MahaRERA/Mumbai. 10.The respondent though appeared for the hearing through its advocate has failed to bring any new facts on record of MahaRERA. Even it has failed to upload the relevant submissions on record of MahaRERA within stipulated period of time granted by MahaRERA. Hence the MahaRERA has no other alternative, but to decide this matter on merits since it is to be decided on time bound manner. 11.Considering the aforesaid facts and available record, the MahaRERA has observed that the complainant has purchased the his flat in the respondent’s project by executing the registered agreement for sale dated 3-10-2014. According to the said agreement, the respondent was liable to handover possession of the said flat to the complainant on or before 31-12-2016. Admittedly, the possession is not given to the complainant on the agreed date of possession mentioned in the said agreement. It shows that the respondent has violated the provisions of section 18 of the RERA. Even till date the project is incomplete and no occupancy certificate has been obtained for this project. Hence the MahaRERA feels that the refund claimed by the complainant under section 18 of the RERA is justified, since he waiting for 6 years to have possession after executing the agreement for sale with the respondent. Therefore, the MahaRERA agrees with the decision given by the Ld. Adjudicating Officer, MahaRERA/Mumbai dated 26-02-2019 in this complaint. 12.In view of these facts, the MahaRERA, directs the respondent to refund the entire amount paid by the complainant along with interest at the rate of MCLR plus 2% as prescribed under section 18 of the RERA read along with relevant Rules made thereunder. 13.With these directions, the complaint stands disposed of. (Dr.Vijay Satbir Singh) Member – 1/MahaRERA