The Maharashtra Real Estate Regulatory Authority has directed the developer of a Kanjurmarg project to fully refund a home buyer’s investment of Rs 47.46 lakh after the construction was thwarted because of its proximity to a naval housing colony. The developer has been directed to pay the home buyer the amount with 9 per cent annual interest from the day of payment.
The October 16 order by MahaRERA member Bhalchandra Kapadnis was based on a complaint by Snehlata Deokar, who was among the home buyers who booked apartments in the Avante project by Sanjeevani Vyapar LLP.
The 25-storey structure was proposed to be developed under a joint venture between the Ashwin Sheth group and Emami group, according to the project website.
Advocate Sameer Bhandari, appearing for Deokar, submitted that she had booked aflat by paying Rs 47.46 lakh out of the flat cost of Rs 1.53 crore in 2015. He said his client wished to withdraw from the project since the developer could not deliver possession as promised by December 2019.
Advocate Pragathi Malle, appearing for the developer, contended that the revised project completion date of June 30, 2022 had not lapsed, and hence the complaint was not maintainable. She contended that the Bombay High Court, in its February 27, 2019 order in Tirandaz Shubha Niketan Cooperative Housing Society case, had held that the NOC from the naval department was not required for construction near the naval housing colony. Despite the ruling, the commencement certificate was not granted by the Municipal Corporation of Greater Mumbai (MCGM). She submitted that in 2019 her client had challenged the MCGM letter refusing a commencement certificate (CC) in a writ petition pending before the High Court.
She said her client kept the complainant informed via emails from time to time regarding the current status of the project including the status of the Naval NOC and commencement certificate. Malle contended that her client was within its rights to forfeit the earnest money paid by the complainant if the sale of immovable property falls through due to the default of the purchaser, and argued that the complaint should be dismissed.
Kapadnis said the developer accepted nearly 30 per cent of the flat consideration, in violation of the Maharashtra Ownership of Flats Act (MOFA) and Real Estate (Regulation and development) Act which mandated the acceptance of not more than 20 per cent and 10 per cent consideration respectively without first registering the agreement for sale.
He said the developer has mentioned December 31, 2019 as the proposed date of completion when the project was first registered with MahaRERA in 2017 and hence that would be considered as the agreed date of possession to compute the delay in possession. “There is no dispute on the point that the planning authority MCGM has not granted the commencement certificate because the naval authority has not granted NOC for construction of the project… Without the commencement certificate, the respondents should not have launched the project and accepted the booking,” he observed.
“Since the respondents have defaulted in obtaining the commencement certificate, the money deposited by the complainant cannot be treated as earnest money liable for forfeiture as contended by the respondent,” Kapadnis said.
