MahaRERA Directs Tata Housing To Refund Homebuyer's Money After Deducting 2% Of Total Consideration

Background Fact

The homebuyer (Complainant) booked a flat in the builder's (Respondent) project named Amantra Phase 2 located on Mumbai Nashik Expressway for a total price of Rs. 76,17,330/-.

Despite paying Rs. 16,18,022/- out of the total consideration which is over 10% of the total price, the builder failed to handed over the flat or executed the registered agreement for sale with the homebuyer.

The homebuyer contended that the flat was booked under the 20:80 scheme, yet the builder has violated the provisions of both the Maharashtra Ownership Flats Act (MOFA) and the Real Estate (Regulation and Development) Act (RERA) by delaying the execution of the agreement for sale.

Additionally, the builder has unilaterally revised the project's completion date without the homebuyer's consent and failed to disclose all pending litigations related to the project on the Authority's website.

Aggrieved by these conduct, the homebuyer filed complaint before the authority seeking refund of the entire amount paid, along with interest and compensation for the delayed possession.

Observation and Direction by Authority

The Authority noted that the builder completed its statutory obligations, obtained an Occupancy Certificate (OC) for the flat on 12-03-2018, and offered possession to the homebuyer on 30-03-2018. The homebuyer filed the complaint on 30-08-2019, after the project was completed and possession was offered.

The Authority held that to establish a violation of Section 18 of the RERA, 2016, it must be shown that the builder failed to complete the project or hand over possession by the date specified in the agreement. Since the builder offered possession before the complaint was filed, the cause of action under Section 18 did not exist anymore. Therefore, the homebuyer's claim for a refund with interest and compensation for delayed possession is not valid.

The Authority further observed that the booking was made under a 20:80 scheme, with 20% payable within 45 days of booking and the remaining 80% one month before possession. The allotment letter dated 20-11-2013 superseded the earlier booking application form. Therefore, the builder cannot cancel the booking based on the application form's clause since the allotment letter did not stipulate a cancellation policy.

The Authority referred to its Order No. 35/2022 dated 12.08.2022, which allowed builders to forfeit 2% of the amount in case of cancellation by the homebuyer, and held that the builder's forfeiture of the entire earnest money paid by the homebuyer, amounting to Rs. 16,18,022/-, is inconsistent with this order.

Therefore, the authority directed builder to refund the money paid by Homebuyer without any interest after deducting 2% of total consideration of the flat within 45 days.

Case – Arunesh Bhagwan Prasad Chopra & anr Versus Tata Housing Development Company Ltd

Citation - Complaint No. CC006000000110661