IMPORTANT POINT
The central legal point established in the judgment is that even a promoter who has not received any consideration from an allottee is liable to give a refund with interest under Section 18 of the Real Estate (Regulation and Development) Act, 2016.

JUDGMENT :

1. This Appeal is filed by the Appellant challenging the Order dated 18 October 2022 passed by the Maharashtra Real Estate Appellate Tribunal, Mumbai (Appellate Tribunal) partly allowing the Appeal filed by Respondent No.1 and setting aside the Order dated 24 September 2021 passed by the Maharashtra Real Estate Regulatory Authority (MahaRERA). The Appellate Tribunal has directed refund of the entire amount paid by the Respondent No.1 with interest from the dates of payments till actual realisation of the entire amount. Such refund is directed to be made by both respondents in the Appeal, which means the Appellant and Respondent No.2 herein. They are also directed to pay costs of Rs.20,000/- to the Respondent No.1. The Appellant is aggrieved by the Appellate Tribunal’s Order to the extent of fastening the liability to refund the amount received by Respondent No. 2 from Respondent No. 1. It is Appellant’s contention that since no amount is received by it, it cannot be made liable to refund any amount or pay any interest to Respondent No.1. That the entire amount is paid by Respondent No.1 to Respondent No.2, who alone can be directed to refund the amount with interest.

2. Briefly stated, facts of the case are that Respondent No. 2- SSS Escatics Pvt. Ltd launched a project named “The Nest” on land bearing C.T.S. No.196 (Part) situated at Ganesh Chowk, Bhavans Camp, D.N. Nagar, Andheri (West), Mumbai under the Slum Rehabilitation Scheme under the provisions of Regulation 33(10) of the Development Control Regulations, 1991. A Joint Development Agreement came to be executed between Respondent No. 2 and Appellant on 5 September 2012, under which, Respondent No.2 and Appellant agreed to jointly develop the project. It appears that under the said Joint Development Agreement, Appellant and Respondent No. 2 segregated the constructed area amongst themselves for being sold to customers.

3. On 19 July 2013, Respondent No.1 booked a 3BHK Flat admeasuring 2385 sq.ft in the said project for agreed consideration of Rs.2,65,35,000/-. Respondent No.1 paid an amount of Rs.1,20,00,000/- towards part consideration. Respondent No.2 issued allotment letter dated 24 July 2013 to Respondent No.1. It is the case of Respondent No.1 that further amounts were paid by him from time to time in pursuance of the allotment letter. It appears that the project remained incomplete on the date of coming into force of the Real Estate (Regulation and Development) Act, 2016 (RERA). The project was accordingly registered as ongoing project under Section 3 of the RERA by Respondent No.2 in which the Appellant was declared as a Promoter (Investor). In the MahaRERA registration, the date of completion of the building was declared as 31 March 2019. It is the case of Respondent No.1 that the said date was unauthorisedly and unilaterally revised to 31 March 2020. Respondent No.1 noticed that the area of the Flat which was booked by him was shown on the MahaRERA Website as 976.82 sq.ft when infact the area booked by Respondent No.1 was 2385 sq.ft.

4. Respondent No.1 approached MahaRERA under the provisions of Sections 12 and 18 of the RERA and sought refund of amount of Rs.2,62,35,056/- alongwith interest as well as compensation and costs. Respondent No.2 appeared in the complaint and resisted the same by filing affidavit-in-reply, pleading various difficulties in completing the project such as non-vacation of the premises by the slum dwellers, delay in obtaining permissions, Covid-19 pandemic etc. Respondent No.2 did not dispute the factum of booking of flat by Respondent No.1 but contended that only an amount of Rs. 90 lakhs + 10 lakhs in cash was paid by Respondent No.1 who is merely an investor. That the area agreed in the allotment letter was a saleable area and not a carpet area. That Respondent No.1 was not willing to pay stamp duty and registration charges for execution of the Agreement. That construction of B-Wing of the building is already complete and eff