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BOMBAY HIGH COURT - APPELLATE SIDE,BOMBAY
R.D.DHANUKA, J
M/s.Samruddhi Developers – Appellant
Versus
Kiran Vasant Verekar – Respondent
CIVIL APPELLATE JURISDICTION SECOND APPEAL (ST.) NO.27914 OF 2018|SECOND APPEAL (ST.) NO.27898 OF 2018|SECOND APPEAL (ST.) NO.27901 OF 2018|SECOND APPEAL (ST.) NO.27903 OF 2018|SECOND APPEAL (ST.) NO.27908 OF 2018
For the Appellants/Petitioners: Mr.Mayur Khandeparkar, Ms.Apeksha Sharma, Mr.Sanjeel Kadam, Ms.Sayali Rajpurkar
For the Respondents: Mr.Vivek Salunke, Mr.Tushar Kadam, Mr.Vishal Jathar, Ms.Madhura Zende
Under the RERA, assignees assume the obligations of the original promoter and are liable for delayed possession, reinforcing the consumer protection mandate of the legislation.
Headnote:(A) Real Estate (Regulation and Development) Act, 2016 - Section 58 and Section 18 - Appeal against Tribunal's order for payment of interest for delay in possession of flats - The appellant's claim that delays were due to lack of commencement certificate was rejected. The court emphasized that the appellant, as assignee, was liable for obligations under RERA and could not evade responsibility after assenting to the Deed of Assignment - The Tribunal’s ruling on interest payment upheld. (Paras 37-63)
(B) Promoter’s obligations - Definition and scope of 'promoter' under RERA entails assignees adhering to all obligations of the original promoter, leading to liability for delays irrespective of prior agreements. (Paras 42-46)
(C) Social Welfare Legislation - RERA is designed to protect consumer interests in real estate, reinforcing the need for timely delivery of possession. (Paras 52-54)
Judgment :
. By these five appeals filed under Section 58 of the Real Estate (Regulation and Development) Act, 2016 (for short the said RERA), the appellant (original respondent) has impugned the order dated 29th August 2018 passed by the Maharashtra Real Estate Appellate Tribunal, Mumbai (hereinafter referred to as “the said Tribunal”) allowing the appeals filed by the respondents (original appellants/ complainants). By consent of parties, all the appeals were heard together and are being disposed of by a common order.
2. The facts in all aforesaid five appeals are identical. Learned counsel for the parties have addressed this Court in Second Appeal (St.) No.27914 of 2018. The facts in the said second appeal are thus summarised in later part of this judgment. Some of the relevant facts for the purpose of deciding these appeals are under :-
3. One Nehru Nagar Amrapali Co.op. Hsg. Soc. Ltd. (hereinafter referred to as “the said society”) is lessee of MHADA in respect of the land bearing Survey Nos.229 and 267, corresponding to City Survey No.2(Part) of Village Kurla, admeasuring 707.30 sq.mtrs. situated at Nehru Nagar, Kurla (East), Mumbai 400 024 and owner of the building bearing Building No.133 standing on the said property. The old building No.133 has been demolished and a new building consisting of 7 floors has been constructed on the said property.
4. By and under a registered Development Agreement dated 13th December 2007 executed between the said society and one M/s.Rebuilt Developers, the said society had granted development rights in respect of the said property in favour of the said M/s.Rebuilt Developers. Under the said Development Agreement, the said society had granted right to M/s.Rebuilt to construct a new building on the said property having ground + 7 upper floors containing rehab and sale component tenaments by consuming then permitted 2.4 FSI in favour of the said Rebuilt Developers.
5. It is the case of the appellant that vide a Notification dated 6th December 2012, the Government of Maharashtra permitted utilization of 2.5 FSI for development of MHADA’s housing colonies. The said society and the said M/s.Rebuilt Developers thus entered into a Supplemental Agreement dated 5th May 2012 thereby granting development rights in respect of the said additional FSI on the terms and conditions set out therein to the said M/s.Rebuilt Developers. Under the said Supplemental Agreement, the society permitted the said M/s.Rebuilt to construct one more floor i.e. 8th floor by utilizing additional FSI over and above 2.5 FSI + permissible Fungible FSI. The said M/s.Rebuilt Developers partly completed construction of a new building on the said property consisting of ground + 7 upper floors and allegedly delivered possession of the flats therein to the Society Members and open market purchasers in or around 2013 without procuring Occupation Certificate.
6. It is the case of the appellant that the said M/s.Rebuilt Developers executed 9 separate registered agreements and agreed to sell those 9 flats out of 10 flats on the proposed 8th floor to various purchasers thereof including Manoj Sadarangani, one of the partners of the appellant who is residing in Flat Nos.A-805 and B-802. It is the case of the appellant that the appellant found it beyond its capacity to complete the remaining work, including construction of the 8th floor, and was also unable to refund the money/part consideration amount paid by those purchasers of flats on the 8th floor.
7. On 9th November 2015, the said society, the said M/s.Rebuilt Developers and the appellant entered into a Deed of Assignment assigning the development rights of the said property to the appellant on the terms and conditions recorded therein. The said society was a confirming party to the said Deed of Assignment. The said Deed of Assignment was duly registered under No.KRL-3-7594-2015. It was the case of the appellant that some of the respondents herein were witnesses in the said Deed of Assi
