BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY MUMBAI COMPLAINT NO. CC006000000057728 Mayank Chemiplast Pvt. Ltd .Complainant Versus Lokhandwala Kataria Construction Pvt. Ltd, ..Respondent MahoRERA Regn. No. 51900008204 Coram: Hon'ble Shri Madhav Kulkarni. Adjudicating Officer, MahaRERA. Appearances Complainants: Mr. Bhimani Respondents : Adv. Sachin Kari ORDER (Dated 02.09.2020) 1. The complainant an ollottee who had booked ¢ flat with the respondent / promoter seeks withdrawal from the project and refund of the amount with interest and compensation. 2. The online complaint is very cryptic. It is only mentioned that agreement was executed in November, 2013. As per Clause 9 of the agreement possession was assured in December, 2016. Complainant has made more than 80% payment. Respondent hos foiled to give possession as per agreement. Copy of agreement on record dated 8.11.2013, shows that it was a slum redevelopment project and complainant booked flat no. 4101 in Al wing for a consideration of Rs.5,49,89,000/-. Why alll these details are not given in the complaint _is not understood. wm. foHowever, detailed complaint is found on record giving those details. itis alleged that complainant have paid Rs.5,17,07,805/- The matter came up before Hon'ble Member on 4.3.2019 and 29.03.2019. Then the matter came up before me on 27.05.2019. Plea of the respondent wos recorded. Respondent pleaded not guilly. Respondent did not file written explanation on 25.06.2019. Respondent filed written explanation on 19.07.2019. Matter was adjourned for final hearing to 27.08.2019, then to 24.09.2019, then to 10.10.2019 and then to 13.11.2019. Arguments were heard. As | am working at Mumbai and Pune Offices in alternative weeks and due to huge pendency in this office and due to lockdown due to Corona Pandemic, this matter is being decided now. . The respondent has alleged that complaint is not admitted. Out of the 90 floors in the project, 66 have been completed. Work is in progress at fastest speed. If complainant is allowed to withdraw, it will cause hardship to respondent. Delay occurred in obtaining permissions and policy paralysis for statutory authorities. Due to order of Hon'ble Bombay High Court in Writ Pelition no. 2699 of 2014 all construction activities came to a hatt. The slum dwellers formed a society and approached respondent for redevelopment. LO! was issued by SRA on 16.04.2005. SRA issued stop work notice on 12.12.2007. Respondent complied with legal formalities and obtained various NOCs. As per GR dated 4.12.2013, a standing committee was constituted to clear high tise building proposals around Arthur Road Jail. Respondent was entitled for fungible FS MOAF approval came on 09.12.2018 and commencement certificate from $1 to 77 floors came on 07.03.2017. The agreement with the complainant stood modified. Therefore, complaint deserves to be rejected. i eo5. Following points arise for my determination. | have noted my findings against them for the reasons stated below: POINTS FINDINGS, 1 Is the complainant an allottee and respondent Affirmative promoter? 2 If yes, has the respondent failed to deliver Affirmative possession as per agreement, without there being circumstances beyond his control? 3 Is the complainant entitled to the reliefs Affirmative claimed? 4 What Order? As per ~Einal Order REASONS 6, Point Nos. 1 to 3- Complainant has placed on record copy of the agreement dated 8.11.2013. Respondent hos admitted that complainant booked flat no. 4101 for Rs.5.49,89,000/- in the project at Mahalaxmi in Mumbai. | therefore, answer point no. 1 in the affirmative. 7. As per clause 9 of the agreement, possession was to be delivered on or before 31.12.2016. Usual circumstances under which extension was to be granted are mentioned in the proviso in clouse 9. 8. It is the contention of the respondent that respondent received LOI on 16.04.2005. This wos 8 years before execution of agreement. The agreement mentions that NOC from Municipal Corporation and Environment Clearance was received. Now itis alleged that there was issue about construction around the existing prison which arose in December, 2008. The stop work notice for 1.5 years was withdrawn on 03.07.2009. Revised LOI was received on 18.12.2009. Various approvals were obtained in 2013 itself, There was writ pelition and order was passed on 307.01.2015. MOEF approval came on 09.12.2016 and commencement certificate from 51 to 77 floors came on 07.03.2017 as respondent was seeking 4.0 FSI. All the circumstances pleaded by respondent were well known to the respondent while executing agreement on 811.2013. Complainant booked flat on 41* floor and date for possession was given as 31.12.2016. Out of agreed consideration of Rs.5.49,89,000/- respondent has obtained Rs.5,17,07,805/-. If respondent is seeking more FSI for constructing more floors to increase his profits, he is doing it for his own sake. Almost 7 years have gone by and respondent has failed to deliver possession to the complainant. it was also alleged that there was proceedings under Insolvency and Bankruptcy code. It appears that National Company Law Appellate Tribunal has feledsed the respondent ‘and allowed to function. | therefore, answer point no. 2 in the affirmative. 10.IN view of discussion above, complainant is entitled to refund of )) 2) 3) Rs.5,17.07.805/- paid to the respondent which is not denied by the respondent together with interest as provided under rule 18 ‘of Maharashtra Rules. | therefore, answer point no. 3 in the affirmative and proceed to pass following order: ORDER Complainant is allowed to withdraw from the project. Respondent to pay Rs.5,17,07,805/- to the complainant together with interest @10.40% p.a. from the daté of payments fill final realization however, subject to Orders passed in IBC proceedings, if any. Respondent to pay Rs.20,000/- to the complainant as cost of this = ws complaint. a4) Complainant to execute Cancellation Deed at the cost of the respondent. 5) Charge of above amount is kept on the flat booked by compleinant. . 4) Respondent fo pay above amounts within 30 days from the date of this Order. woe (Madhav Kulkarni) Adjudicating Officer MAGEE ‘MahaRERA Date : 02.09.2020.