Bombay High Court
Paras Rameshchandra Joshi vs State Of Maharashtra on 18 January, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2024:BHC-OS:1136-DB WPL1865-24.DOC
Mohite
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
TRUSHA
TUSHAR
MOHITE
Digitally signed by
TRUSHA TUSHAR
MOHITE
WRIT PETITION (L) NO.1865 OF 2024
Date: 2024.01.20
17:15:00 +0530
1. Paras Rameshchandra Joshi
Having address at B-53, Vardhaman
Nagar Narsing Lane, Malad West,
Mumbai - 400064
2. Hetal Paras Joshi
Having address at B-53, Vardhaman
Nagar Narsing Lane, Malad West,
Mumbai - 400064 ... Petitioners
Versus
1. State of Maharashtra Through
2. Maharashtra Real Estate Regulatory
Authority Through its Chairman
Having its office at Bkc, E-Block, 7th
Floor, Housefin Bhavan, near RBI,
Bandra Kurla Complex, Bandra East,
Mumbai, Maharashtra 400051.
3. Shree Siddhivinayak Infrastructure
and Realty
A partnership firm having its office at
1st Floor, Ruparel Iris Building, Plot
no.273, Senapati Bapat Marg, Matunga
Road (W), Mumbai - 400 016
4. Piramal Capital & Housing Finance
Limited (Formerly known as Dewan
Housing Finance Limited)
A company incorporated under the
provision of the Indian Companies Act,
1956, and having its registered office
address at Unit No.601, 6th Floor,
Piramal Amiti Building, Piramal
Agastya Corporate Park, Kamani
Junction, Opp. Fire Station, LBS Marg,
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WPL1865-24.DOC
Kurla (West), Mumbai - 400 070 ...Respondents
Mr.Gunjan Chaubey a/w Mr.Vinay Kate for the Petitioners
Smt.Jaymala J. Otswal, Addl. G.P. for the State
Mr.Shreesh Oak i/b M/s.S.C.Legal for the Respondent No.4
_______________________
CORAM: G. S. KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
DATED: 18 January, 2024
_______________________
ORAL JUDGMENT: (PER FIRDOSH P. POONIWALLA, J.)
1. Rule. Rule made returnable forthwith.
2. Heard finally by consent of the parties.
3. This Petition is filed under Article 226 of the Constitution of India for the following reliefs:
"(a) Be pleased to issue a writ in the nature of certiorari or any other appropriate writ or order or direction calling for records of the proceeding viz. Complaint No.CC006000000292777 filed by the petitioners and after considering the same this Hon'ble court be pleased to direct Respondent No.2 Maharashtra Real Estate Regulatory Authority to hear and decide and pass an appropriate order on the complaint no.CC006000000292777 within such time as this Hon'b;le Court may deem fit."
4. The Petitioners booked Flat No.1302, admeasuring 530 Sq. Ft. carpet area, on the 13th floor of "Wing C" of the building to be known as "Ruparel Skygreens" to be constructed by Respondent No.3 in terms of the Agreement for Sale, which was duly registered on 18th November 2017 ("the said Agreement"). As per the provisions of the said Agreement, possession of the said flat was to be handed over to the Petitioners on or before December 2021. Further, as per Form B filed by Respondent No.3 before the Maharashtra Real Estate Regulatory Authority (MahaRERA), the actual date of handing over possession of the said project was 31st December 2021.
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5. It is the case of the Petitioners that they had executed the said Agreement believing various representations made by Respondent No.3. Further, it is also the case of the Petitioners that Respondent No.3 insisted that the Petitioners should avail of a loan only from Respondent No.4 and not from any other Bank or Institution.
6. It is the case of the Petitioners that the project information available on the MahaRERA website as on 20 th October 2023 shows that, as per the declaration of Respondent No.3, there is significant work, which remains to be done in respect of the said project. Further, the annual report on statement of account (Form '5') uploaded on MahaRERA website for the period March 2022, shows that the Respondent No.3 has collected a sum of Rs.2,81,15,85,503.71 for the said project and that till the filing of the Petition, Respondent No.3 had not handed over a single flat to any flat buyer.
7. It is also the case of the Petitioner that, till date, the Petitioners, and Respondent No.4, on behalf of all the Petitioners, have paid a sum of Rs.76,62,315/- to Respondent No.3.
8. It is further the case of the Petitioners that, as they had booked the said Flat in a subvention scheme (5:90:5) by entering into a tripartite agreement with Respondent No.3 and Respondent No.4, the payment of pre-equated monthly instalments (pre-EMI) from the month of first disbursal of the loan amount till possession was the responsibility of Respondent No.3. The Petitioners have further submitted that, as Respondent No.3 failed to pay the said pre-EMI instalments, Respondent No.4 started recovery action by sending a Loan Recall Notice and a Notice under section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act) and also invoked Arbitration.
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9. In these circumstances, the Petitioners filed Complaint bearing no.CC006000000292777 ("the said Complaint") before MahaRERA for Orders under Sections 12 and 18 of the Real Estate (Regulation and Development) Act, 2016 ("Act of 2016") for refund of the amount paid to Respondent No.3 on account of inordinate delay in handing over possession of the said Flat. The first hearing in the said complaint was scheduled on 30 th January 2023 and the same was held before Shri Ajoy Mehta, the Chair Person of MahaRERA, in which the Petitioners were present and the Respondents were absent. It is the submission of the Petitioners that, thereafter, no date for hearing the said Complaint was fixed.
10. In these circumstances, the Petitioners, through their Advocates addressed letters dated 25th May 2023 and 5th September 2023 seeking expeditious hearing of the said Complaint.
11. Despite the aforesaid, MahaRERA, i.e. Respondent No.2, has failed to fix any date for hearing of the said Complaint. In these circumstances, the Petitioners have filed the present Petition seeking expeditious disposal of the said Complaint by Respondent No.2.
12. We have heard the learned Counsel for the parties and perused the documents on record.
13. It can be seen that, despite the Petitioners filing the said Complaint before Respondent No.2 in September 2022, till date, no hearing has taken place in the said Complaint. The delay in hearing and disposing of the said Complaint is causing great prejudice to the Petitioners as, on the one hand, the amounts paid by them or on their behalf to Respondent No.3 have not been refunded by Respondent No.3, and, on the other hand, Respondent No.4 has started recovery action under the provisions of the SARFAESI Act and also invoked arbitration. In these circumstances, in our view, it is necessary to issue Page 4 of 5 17 January, 2024 ::: Uploaded on - 20/01/2024 ::: Downloaded on - 20/01/2024 21:03:27 ::: WPL1865-24.DOC directions to Respondent No.2 to decide the said Complaint in a time bound manner after giving a personal hearing to the Petitioners.
14. In the aforesaid circumstances, and for the aforesaid reasons, we pass the following Orders:
a. Respondent No.2 is ordered and directed to decide the said Complaint filed by the Petitioners and pass an Order thereon within a period of 6 weeks from the date of intimation of this Order to Respondent No.2, after giving a personal hearing to the Petitioners.
b. Rule is made absolute in the aforesaid terms.
c. In the facts and circumstances of the case, there will be no order as
to costs.
(FIRDOSH P. POONIWALLA, J.) (G. S. KULKARNI , J.)
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