BEFORE THE MAHARASHTRA REAL ESTATE APPELLATE TRIBUNAL, MUMBAI

1l Appeal No. AT006000000010975 Ahimsa Builders Address:

1st Floor, White House, Ahimsa Marg, Off, Link Road, Chincholi, Malad West, Mumbai - 400 064. Appellant

1) Ms. Mala Sen Add ress:

B-103, West End, Ahimsa l4arg, Off. Link Road, Malad West, Ivlumbai - 400 064. 2) Mr. Anil Patel Address:

Sl4, 103, Sunder Nagar, S.V. Road, Malad West, Mumbai - 400 064. Respondents Alongwith

2l Appeal No. AT006000000010998 Mr. Anil Patel Address:

Sl4, 103, Sunder Nagar, S.V. Road, Malad West, Mumbai - 400 064. Appellant *

1) Mala Sen Add ress:

B-103, West End, Ahimsa Marg, Off. Link Road, Malad West, I4umbai - 400 064.

2) Ahimsa Builders Address:

1't Floor, White House, Ahimsa [4arg, Off. Link Road, Chincholi. Malad West, 14umbai - 400 064. Respondents I

Adv. Dr. Sanjay Chaturuedi for Appellant in Appealat Sr. No. and

Respondent No. 2 in Appeal at Sr. No.2

Adv. Mr. Prathamesh Kamat i/b Mr. Dinesh Mishra for Respondent

No.l in both the Appeals Adv. Mr. Kunal Mehta for Appellant in Appeal at Sr. No. 2 and Re 'nt ^{No.2 in} Appeal at Sr. No. ¹ :

CORAM SHRIRAM R. JAGTAP, MEMBER (J) &

S. S. SANDHU, MEMBER (A) DATE : 14th March,2023.

(TH ROUGH VIDEO CONFERENCING)

COMMON JUDGMENT IPER: ^{S. S. SANDHU, MEMBER (A)l} Both the Appellants seek to challenge the order dated

16.11.2018 passed by the learned l4ember 1 (hereinafter the Authority) in complaint filed by Respondent No, 1 in both the Appeals.

2. I Appellants in Appeals at Sr. Nos. and 2 are Promoters,

They are also arrayed as Respondent No. 2, in each other's Appeal. Respondent No. 1 in both the Appeals is an Allottee. Appellants ⁱⁿ

Appeals at Sr. Nos. 1 & 2 will hereinafter be referred to as the Promoter or alternatively as new Promoter and as Ex-Promoter respectively and will also be jointly referred to alternatively as Promoters wherever necessary. Respondent No. 1 i.e. Mrs. Mala Sen in both the Appeals was referred singularly in the Complaint However, as the subject matter also involves the claim of Respondent No. 1's husband, we will refer Respondent No. 1 as Allottees in this judgment.

3.

As the facts, circumstances and the pafties are common in these Appeals, both the Appeals are heard together to be decided by this common ^judgment.

4.

As per brief facts in both the Appeals, the Appellant Promoter in Appeal at Sr. No. 1 took over the project'West End'at f4alad, lYumbai in December, 2009 from Ex-Promoter Ankush Enterprises ht. Ltd. (now known as Shivyog Enterprises A^. Ltd.) of which the Appellant in Appeal at Sr. No. 2 is a Director. In the said project, Allottee booked flat 8-601 whereas her husband booked flat 8-602. Letters of Allotment ^(LOA) for both the flats -+

were issued to them by Ex-Promoter on 12.05.2003 and 05.05.2005 respectively. Agreements for sale (AFS) alternatively referred to as Flat Purchase Agreements (FPAS) for both the flats l were executed on 28.04.2006 for a total consideration of -

Rs.12,73,6251 and Rs. 16,40,500/- respectively. Possession was agreed to be given by December, 2007. Pending completion ofthe project, Allottees were given flat B-103 on rental arrangement for which rent was to be paid by the Ex-Promoter.

5.

The project as contemplated could not be completed even beyond 3 floors allegedly due to amendment to the Development Control Regulations for Greater Mumbai, 1991 (DCRS). Ex- Promoter sold its rights, interest and title alongwith all the FSI to the Promoter (Appellant in Appeal at Sr. No.1) vide agreement dated 30.12.2009 On knowing about transfer of Project and apprehending that ex-Promoter will not ^give the flats the Allottees booked, a police complaint by Allottee Mrs. I4ala Sen on 30.11.2013 was filed thereby accusing the Ex-Promoter of having no intention to ^give the said flat to the Allottees and sought the Police to stay construction belng carried out by new Promoter until the Allottees get the flats It appears from the contents of Allottees' further letter -+

dated 20.12.2013 (page 363) written to Ex-Promoter that ^p