For failing to hand over property possession in promised time, housing regulatory authority directs developer to refund buyer's down payment
The building, Imperial Heights
The Maharashtra Real Estate Regulatory Authority (MahaRERA) has yet again stood up for a flat buyer, who was refused possession of a house he had booked in Goregaon's Imperial Heights in 2016.
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Valuing over Rs 2 crore, the buyer had paid 20 per cent of the amount while the remaining 80 per cent was arranged by the developer-appointed Indiabulls Housing Finance Limited, using a tripartite agreement. However, having failed to hand over the possession of the property, MahaRERA has directed the developer to repay the amount deposited by the buyer along with an interest, in its order dated October 1, 2018.
However, if highly placed sources are to be believed, the builder has now decided to challenge the MahaRERA order in the Bombay High court. Bhuvanesh Shrivastava, 40, who runs a production company, had booked a flat, along with his wife Priyali Saxena, admeasuring approximately 730 sq ft (carpet area) in May 2016. As per the complaint made to MahaRERA (of which this paper has a copy), the flat was booked for a total consideration of Rs 2,03,00,269 and an allotment letter was thus issued on May 25, 2016. The developer (M/s Epitome Residency Pvt Ltd) had promised to hand over the possession of the flat by September 30, 2017.
Bhuvanesh Shrivastava
After being denied possession in time, Shrivastava, through a notice dated May 5, 2018, cancelled the allotment letter as well as the tripartite loan agreement and asked the developer to refund the amount paid by the couple. When there was no response from the developer, the complainant moved MahaRERA through advocate Shakib Shaikh.
Developer refutes charge
Advocate Vibhav Krishna, representing M/s Epitome Residency Pvt Ltd, argued that a tripartite agreement signed on May 31, 2016 was executed whereby the complainants have opted for a subvention scheme (while the project is under construction, the developer pays the interest on the loan to the bank. The buyer's EMIs begin only after he gets possession) and had subrogated their rights to receive refund in favour of the lender. This implies that the developer is not liable to pay any refund to the buyer.
Thereafter on April 10, 2017, the complainants have executed an indemnity-cum-declaration stating that they have certain difficulties and cannot execute the agreement for sale and therefore requested the developer to hold the flat. On January 25, 2018, the developer wrote a letter to the complainants that pre-EMI interest from July 1, 2016 till possession shall be payable by them at the time of possession. The complainants replied through an email on April 10, 2018, terminating the agreement on the basis of delay in handing over possession. The developer's lawyer also argued that till date they have paid an EMI interest to the lender (Indiabulls Housing Finance Ltd) aggregating Rs 21,02,329 on the loan availed by the complainant and also brokerage of Rs 8,12,011.
MahaRERA order
In his order, Dr Vijay Satbir Singh, member 1, MahaRERA, stated, "The indemnity bond applies only to the issue of non-execution of the registered sale agreement. It has no relevance with the present complaint in which they have asked for cancellation of the agreement and refund of their money under section 18 of the RERA Act 2016."
Dr Singh also stated that the tripartite agreement says that the complainants have no obligation to make any payment towards EMI till gaining possession of the flat. However, the lender began levying EMI and thus they had no other option but to cancel the allotment.
"The developer will have to make the outstanding payment to Indiabulls Housing Finance Ltd under tripartite agreement and the MahaRERA directs the developer to refund the booking amount paid by the complainants along with applicable interest under the provisions of MahaRERA Act 2016, MCLR (marginal cost of funds-based lending rate) plus two per cent under RERA Act 2016," Singh stated.
'Dream house postponed'
When contacted, Shrivastava said, "It is over a month since the MahaRERA order was passed but till now the developer has not followed it. I continue to stay in my rented apartment for a monthly rent of Rs 60,000. This was to be my first dream house in Mumbai, but unfortunately it will take some more time," he said. "My only concern is that for no fault of mine, my CIBIL scoring is getting severely impacted as the monthly ECS from my bank to Indiabulls account is not getting cleared. I have learnt a hard lesson, and would advice aspiring flat buyers not to invest in any under construction project," he added.
When contacted, advocate Krishna confirmed that they will move the Bombay High Court challenging the RERA order. "Our main contention is that MahaRERA has not considered the bond signed by the complainants," Krishna said.
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