Mumbai: The promoters of Kalpataru Yashodhan project in Andheri West have been directed by MahaRera to refund an amount of over Rs 1.40 crore, besides, interest on the sum at SBI’s highest Marginal Cost Of Lending Rate (MCLR) plus 2% to a homebuyer couple who had booked a flat worth over Rs 7.12 crore and paid a total sum of over Rs 1.46 crore in 2017 with promised possession on or before Dec 2018. According to the complainant, the promoter, while failing to deliver possession within the assured timeline, had issued demand letters from 2017 onwards, and subsequently forfeited the entire amount paid by the complainant in Feb 2020. Thereafter, the respondent had even sold the same flat to a third party.Homebuyer couple Hina and Sanjay Choksi, who were represented by advocate Dharmendra Damani, had paid an amount which constituted approximately 20% of the total consideration. MahaRera said any person to whom an apartment is allotted for consideration is an ‘allottee’, irrespective of whether an agreement has been executed and the promoter’s attempt to label the complainants as ‘investors’ is unsupported by any cogent evidence and mere allegations of investment intent, without proof of speculative resale or commercial dealing by the complainants, cannot divest them of statutory protection under Rera.Accepting over 20% of the total consideration without an agreement for sale constituted a statutory violation and the respondent cannot be permitted to take advantage of its own breach by alleging that the absence of an agreement for sale defeats the complainants’ claim, said MahaRera. The MahaRera order, passed by member Ravindra Deshpande, observed that the respondent forfeited the entire amount paid by the homebuyer without refunding any portion and such forfeiture is arbitrary, disproportionate, and violative of RERA, especially when the promoter itself was in breach of Sections 13. The promoter thereafter sold the same flat to a third party. The complainants were required to pay the remaining consideration amount only after issuance of Occupation Certificate, however, the respondent issued demand letters to the complainants, which were premature and unlawful. The authority was of the view that forfeiture of the amount paid, especially when it exceeded 10% and when the promoter is in breach, is per se unconscionable and illegal. Further, once the flat has been sold to a third party, the respondent cannot simultaneously retain the complainants’ money and the benefit of resale. Such conduct amounts to unjust enrichment, Rera said.
