THE MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY MUMBAI. COMPLAINT NO: €C006000000193735. Mr. Snehalata Devram Deokar .» Complainant. Versus Sanjeevani Vyapar LLP Respondent. MahaRERA Regn: P51800001140 (Avante) Coram: Shri B.D. Kapadnis, Member-II. Appearance: Complainant: Adv. Mr. Sameer Bhandari. Respondent: Adv. Ms. Pragathi Malle. FINAL ORDER 16th October, 2020 The complainant contends that she booked flat no. 1201 in C wing of the respondent's registered project ‘Avante’ situated at Hariyali, Kanjurmarg, Mumbai by paying Rs.47,46,785/- during the year 2015-2016 against total consideration of Rs.1,5341,500/-. The respondent agreed to hand over the possession of the flat by December 2019, The respondent failed to construct the project in time and did not handover the possession of the flat on agreed date. Therefore, complainant withdraws from the project and claims refund of her amount with interest. Ss2, The respondent has pleaded not guilty and it has filed its reply to contend that the date of completion declared before MahaRERA is 30.06.2022 and this date has not been crossed and therefore, this complaint is not maintainable u/s 18 of RERA. The agreement for sale has not been executed though the complainant was asked to come forward for getting it executed. In the context of Naval NOC, the respondent contends that, Hon'ble Bombay High Court in Tirandaz Subha Niketan Co-operative Housing Society Ltd. V/s. Union of India held on 27.02.2019 that NOC of the Naval Department is not required for construction near their housing colony. Despite this ruling, the commencement certificate was not given by the planning authority. ‘Therefore, the respondent filed writ petition no. 1358 of 2019 before the Hon'ble Bombay High Court to challenge the letter issued by MCGM to that effect and the same is pending, The respondent further contends that because of the outbreak of Covid-19, the construction activities were stopped as per the government's policy. The respondent kept the complainant informed Py sending emails from time to time regarding the current status of the Project including the status of the naval NOC and commencement certificate. The respondent further contends that the earnest money paid by the complainant is given to bind the contract and the seller is entitled to forfeit the same, if the sale of an immovable property fails through due to the default of the purchaser as held by Hon'ble Supreme Court in Satish Batra V/s. Sudhir Rawal. The respondent contends that it is justified in forfeiting the amount as per clause nos10,15&17 towards the forfeiture of the earnest money. Therefore, the respondent requests to dismiss the complaint. a Thave heard the Ld. Advocates of the parties. 4, The complainant has booked the flat in the year 2015 and the allotment letter is given on 20.07.2016. The respondent was under legal obligation not to . Ssaccept more than 20% of consideration without first executing and registering the agreement for sale as per sec.4(1) of Maharashtra Ownership Of Flats Act and after 1.05.2017 he was not entitled to receive more than 10% of the consideration as per sec.13(1) of RERA. The respondent has accepted near about 30% of the total consideration which is not permissible under the law. 5, The complainant contends that the respondent agreed to hand over the possession of the flat on or before 31.12.2019. Though this date is not mentioned in the allotment latter, I believe the complainant that the agreed date of possession is 31.12.2019 because the respondent itself has mentioned at the time of registration of the project with this authority that the said date was the proposed date of completion of the project and it is there on the web page of the project. This fact therefore proves that the respondent made false statement regarding the date of possession. The premises in which the complainant was residing has been demolished for redevelopment and the complainant has to shift to rental premises by paying huge rent. The construction work has not yet started. The revised date unilaterally declared by the promoter while registering the project with this Authority for its completion is not a material date but the agreed date of possession is important to compute delay is the ratio laid down by Bombay High Court in Neelkamal realtors Pvt. Ltd. Vs. Union of India. Hence this case comes u/s. 12 of RERA. 6. There is no dispute on the point that the planning authority MCGM has not granted the commencement certificate because the Naval Authority has not granted NOC for construction of the project. Though the issue has been taken by the respondents to Hon'ble High Court, the fact remains that the commencement certificate is not in place. Therefore, without the commencement certificate the respondents should not have launched the : Seproject and accepted the booking, Section 4(2) (€) of RERA clearly shows that at the time of registration of the project the authenticated copies of the approvals and commencement certificate from the competent authority obtained in accordance with the law, as may be applicable for the real estate project are to be uploaded. Therefore, the commencement certificate is the essential requisite for launching the project. Unfortunately, in this case, the respondent launched the project without obtaining the commencement certificate, Mr. Sameer Bhandari brings to my notice section 18 (1) (b) of the RERA which provides, 18, (1) if the promoter fails to complete or is unable to give possession of an apartment, plot or building, ~ @ (b) due to discontinuance of his business as a developer on account of suspension or revocation of the registration uncer this Act or for any other reason, he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot building, as the case may be, with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act: I find that without commencement certificate issued by MCGM, it is not possible ofthe respondent to make the construction of the project Therefore, I find that this reason is covered by “any other reason” mentioned in. sub-clause (b) as mentioned above. In view of this legal position, T find that the complainant is entitled to get ‘pack her amount with interest at prescribed rate. 7, Since the respondents have defaulted in obtaining the commencement certificate, the money deposited by the complainant cannot be treated as the \ aeearnest money liable for the forfeiture as contended by the respondent. The judgement of Hon’ble Supreme Court upon which the respondent places the reliance is not applicable in this case because the transaction could not be completed because of the default of the respondent itself. 8 To conclude, I hold that, the respondents are liable to refund the amount of complainant with interest at prescribed rate. The prescribed rate of interest is 2% above SBI’s highest MCLR which is currently 7% p.a. The respondent is also liable to pay Rs. 20,000/- to the complainant towards the cost of the complaint. ORDER A. The respondent shall refund Rs.47,46,785/- with simple interest at the rate of 9% p.a. from the dates of the receipt of the said amount till the refund. 8, The respondent shall pay Rs. 20,000/- to the complainant towards the cost of the complaint. c The charge of the aforesaid amount shall be on the booked flat till satisfaction of the complainant's claim. es Desi Date: 16.10.2020. (B.D. Kapadnis) Member-II, MahaRERA, Mumbai.