TaxTMI 
TaxTMI 
2019 (4) TMI 2062
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....original complainants. They had filed Complaint No. No. CC006000000054723 and Complaint No. CC006000000054725 before MahaRERA Authority for refund of amount along with interest including compensation as per Section 18 of RER Act. 2016. Allottees had booked flat No. 1901- 'A' Wing and flat No. 1301-A Wing separately in the project namely Evershine Cosmic situated at Village Oshiwara, Andheri (West), Mumbai. Evershine Cosmic project consists of 30 floors and three wings "A", 'B' and 'C' Promoter had launched the said project in the year 2010. Agreed total price of each flat was Rs. 1/- Crore. Allottees have paid Rs. 90,00,000/- to the promoter towards total price of their respective flats. Promoter executed allotment letter on 02.02.2010 in favour of each of Allottees in respect of their respective flats. Promoter failed to complete the project The work of project was at slow space. Project was delayed. Even after the year 2014 to 2015. It was revealed that both the flats agreed to be purchased by the allottees in Evershine Cosmic project were not having legal approval. Promoter agreed to purchase both the flats from allottees for consideration of Rs. 2,20,90,....
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.... Appeals 6. Feeling aggrieved by the impugned common order dated 17.09.2018 passed by Ld. Member and Adjudicating Officer, MahaRERA Authority, allottees have challenged correctness, legality and propriety of the said common order in both the Appeals. Arguments of Ld. Advocate for Allottees 7. The Ld. advocate for the Allottees mainly argued that promoter agreed to sale the flats in Evershine Cosmic project to both the Allottees and accordingly executed allotment letters to that effect in favour of both the allottees. Each allottees had paid Rs. 90,00,000/- in the year 2010 to the promoter towards the price of their respective flats. She argued that both Allottees had paid about 90% of the total price of their respective flats to the promoter She argued that, it was revealed that there was no approval to both the flats and so, promoter agreed to purchase back both the flats from the allottees for respective consideration of Rs. 2,20,90,000/- and agreed to allot two separate flats situated in Gaurav Wood project of the sister concern of the promoter. She further submitted that promoter also agreed to sale one more flat in said Gaurav Wood project jointly to both the allottee....
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.... iv) What order? My findings on above points for reasons stated below are as under: FINDINGS i) Affirmative. ii) Affirmative. iii) Affirmative. iv) As per final order. REASONS: Facts not disputed 10. Promoter launched Evershine Cosmic project in the year 2010. Allottees booked two separate flats in the said project. Total price of each flat as agreed between the parties was Rs. 1/- Crore. Admittedly each allottee had paid Rs. 90,00,000/- i.e. 90% of the total price of the flat to promoter in the year 2010 Promoter executed allotment letter in favour of each allottee in respect of the said flats. It was revealed in due course that both the Hats agreed to be purchased by the Allottees were not having legal sanction, so promoter agreed to purchase back the said two flats for consideration of Rs. 2,20,90,000/- and also agreed to sale two separate fiats situated in Gaurav Wood project which was launched by sister concerned namely Ravi Developers Promoter also agreed to give one more flat jointly to both the allottees. Thus, promoter agreed to give three flats situated in Gaurav Wood project to both the allottees in lieu of two fl....
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....ong with interest including compensation as per Section 18 of RER Act, 2016. Allotment letters and their value in transactions 12. Original transaction is in respect of Evershine Cosmic project of the promoter and promoter received 90% of the purchase price of each of the two flats from the allottees in the year 2010. Allotment letters issued by promoter in favour of Allottees in respect of the said transaction of two flats of Evershine Cosmic project are not yet cancelled and thus, allotment letters are still in force Careful examination of said allotment letters clearly show the intention of promoter to sale two flats of his project Evershine Cosmic to the allottees and allottees have also agreed to purchase those two flats and the total price of each of the flats was agreed to be Rs. 1/- Crore and promoter received Rs. 90,00,000/- for each flat for each of allottees in the year 2010 itself. At this stage, I would like to point out that allotment letters are sufficient enough to show that promoter and allottees have entered into an agreement of sale and purchase of the flat situated in Evershine Cosmic project for sale consideration of Rs. 100,00,000/- (Rs. One Crore) of ea....
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.... The Hon'ble Apex Court has laid down that if the conditions of the MOU are otherwise acted upon the parties to MOU will get the benefit arising out of MOU. Comparison of allotment letters and MOU 15. I would like to point out that MOU executed by promoter and allottees was simple understanding in respect proposed second transaction of selling three flats to the allottees from Gaurav Wood project instead of two flats from Evershine Cosmic project. However, there Is absolutely nothing on record to show that promoter or allottees had made any attempt to execute the said proposed transaction. There is absolutely nothing on record to show that promoter and allottees acted upon MOU in completing the proposed transactions. So, mere understanding between the parties in respect of proposed transactions and failure on the part of parties to act upon as per the understanding mentioned in MOU, I am of the opinion that MOU will not over ride the first transaction between the parties in respect of sale and purchase of two flats from Evershine Cosmic project in respect of which promoter received 90% of the purchase price of each flat and promoter issued allotment letters in respect of ....
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....the flat is handed over to him is not unreasonable because allottee has paid substantial amount of price as per agreed terms to the promoter but did not receive the possession of the flat on or before due date. 5) that the object of Section 13 of RER Act is to recompensate allottee from depriving him of the use of funds paid by him. 6) that allottee cannot be said to be acting gratuitously as promoter enjoying the benefit is bound to pay interest to the allottee. 7) that such type of relief of payment of interest and return of amount is not created for the first time under RER Act, 2016 but it was already there under Section 3 of MOFA Act, 1953. To sum up the dispute with conclusion 17. Allottees spent Rs. 90,00,000/- for purchase of flat and waited for 7 to 8 years and are not hopeful of getting the possession of the Hat in near future and allottees were shocked to know in due course that the flats situated in Evershine Cosmic project which they decided to purchase were not having legal approval and thereafter, three flats situated in Gaurav Wood project of sister concern of promoter which were offered to be given to the allottees in lieu of two fl....