MahaREAT Finds MahaRERA's Dismissal Of Homebuyer's Complaint Incorrect, Directs Builder To Refund ₹4.5 Lakh

Background Facts

The homebuyer (Appellant) booked a flat in the builder's (Respondent) project named Kanakia Miami situated at Mahim, on 28th March 2017, and executed and registered the agreement for sale on 28th June 2017 for a total consideration of ₹5,38,78,880/-.

According to Clause 9(i) of the agreement for sale, the delivery of possession of the flat by the builder was supposed to be completed on or before 30th September 2018.However, even after paying the full consideration to the builder, the complainant did not receive possession of the flat on time.

Therefore, being aggrieved, the homebuyer filed a complaint before Authority seeking a refund, compensation for the delay in delivery, and compensation for the deficit in carpet area. Authority, in its order dated 24th May 2021, held that the homebuyer cannot be permitted to agitate his claims as allottees at this belated stage and dismissed the complaint by holding it non maintainable.

Therefore, aggrieved by the Authority order, the homebuyer filed an appeal before the Tribunal seeking to set aside the order, a refund for the excess money taken by the builder, and interest for the delay in handing over the possession.

Observation and Direction by Tribunal

On the issue of maintainability, the Tribunal referred to Section 31 of the RERA, 2016, which stipulates that for a complaint to be valid, the Homebuyer must be aggrieved by violations of the Act, and the complaint must be against a builder, homebuyer, or real estate agent. Since both conditions were met in this case, the Tribunal held that the Authority had incorrectly dismissed the homebuyer's complaint as not maintainable

The Tribunal referred to clause 5(xvi) of the agreement for sale, which stipulated that – “A fee of ₹9,00,000 is payable to Kanakia Spaces Realty Private Limited by the sellers and purchasers in equal proportions for issuing the NOC and noting the lien in favor of the purchasers. Since no society has been formed yet, no transfer fees are payable to the society”.

The Tribunal determined that the builder cannot claim transfer fees for issuing the NOC as per the agreement. The homebuyer, along with other purchasers, were required to pay ₹9,00,000, as specified in the agreement. However, the Tribunal directed that only half of this amount, which is ₹4,50,000, should be refunded.

On the issue of the deficit in the carpet area, the Tribunal held that the homebuyer failed to provide convincing evidence regarding the alleged deficit. Therefore, the homebuyer is not entitled to a refund for the claimed shortfall in the carpet area.

On the issue of compensation, the Tribunal held that homebuyer is entitled to homebuyer interest at the prescribed rate for each month of delay until the possession of the flat is handed over. However, since the homebuyer have already settled for a rebate of ₹7,50,000, they are not entitled to additional interest for the delay in possession or to any further compensation.

Case – Mr. Jaikishan Udhav Lakhwani & anr Versus M/s. Kanakia Spaces Realty Private Limited

Citation - APPEAL NO. AT006000000053230