Gauri Thatee
Gauri Thatee
Gauri Thatee
MUMBAI.
(Olympia C D)
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Coram: Shri B.D. Kapadnis, Member-ll, MahaRERA.
Appearance:
Complainants: Adv. Mr. Harshad Bhadbhade at Sr. No. L.
C.A. Mr. Ashwin Shah at Sr. No. 2 &3.
Adv. Mr. Rajeshwar Deshmukh at Sr No. 4.
Respondents: Ms. Vaishali Mohite for Nirmal.
Adv. Mr. Aftab Diamondwala for Shapoorii
Pallonji
FINAL ORDER
5th March 202L
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2. Ms. Gauri contends that at the time of booking of the flat, she was
made to believe on the basis of the proposed date of completion mentioned
3. Mr. Nilesh and Mr. P. N. Kutty Nair Shekharan contend that at the
time of booking of the flats they were made to believe that Shapoorji
Palonjee Pvt. Ltd. would construct the project and the excavation work
would start within three months and the construction would start in fu1l
swing but since the date of booking i.e., till January 2019 no progress is
made in conskuction. The booking was accepted though there wasn't valid
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6.M/s.ShapoorjiPallonjiPrivateLimitedhasfiledtherepliesto
contend that, Nirmal Developers and Mr. Dharmesh Jain are the Promoters
oftheprojectknownasCodeName-MumbaiDreamssituatedatMulund
west. They appointed shapoorji Pallonji Private Limited's subsidiary
Lucrative Properties Private Limited as Development Manager for
providing assistance in the management, planning, superwision of the
project and use of their brand name for the fees to be paid and on the terms
ancl conditions mentioned in the develoPment management agreement
d,ated27.O4.2O18. By that time, Nirmal Developers already sold 1.71 lakh
sq. ft. or thereabout residential area to the prospective purchasers'
towards the purchasers of the units. The money paid by the complainants
has gone to Nirmal Developers and they are developing the project'
The
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only when he fails to handover the possession on the date of completion
mentioned by him in the registration application' The complainants never
intended to purchase units for their residence and therefore, the
filed for its defence. Hence, they are treated to be the repiy of Lucrative
Properties Private Limited. I hold that Lucrative Properties Private Limited
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Limited "by applying the principle of representation" ' Lucrative Private
Limited is deemed to be party to these complaints which has been ably
defended by Mr Aftab Diamondwaia.
10. The learned advocates of the complainants have submitted in one
voice that shapoorji Pallonji Private Limited is a promoter and for that
purpose they have relied upon the definition of the promoter defined
under section 2(zk) of The Real Estate (Regulation and Development) Act,
2016, the relevant portion thereof reads as under:
(iii) ***
(ir) *""
(v) any other person who acts himself as a builder, coloniser'
conhactor, developer, estate developer or by any other name or
claims to be acting as the holder of a power of attorney from the
owner of the land on which the building or apartment is constructed
or plot is developed for sale; or
(vi) such other person who constructs any building or apartment for
sale to the general Public.
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plot for sale and the persons who sells aPartments or plots are
c. Clause 3.2.5 shows that they agreed that the name of the
logos shall
Development Manager and the Developer and their respective
and all print
appear on all the brochures, parnphlets, handouts' websites'
and electronic media for Marketing the Project' as per
branding policies in
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by the
terms of the Brand Licensing Agreement and as may be approved
Development Manager'
Clause 4.2 provides that, during the term of the agreement'
the
d.
development manager shall in addition to all other functions of
exclusive
development manager as contained in the agreement have the
right to
4.2.1-. manage, plan, supervise the project up to completion thereof
and
4.2.2 prepare the mutually agreed business plan in terms of the
agreement.
e. Clause 7.1.9. provides that, the development manager shall have the
per
exclusive and/ or absolute right to market and sell the saleable Area as
terms as mentioned in this agreement and in accordance with the Business
Plan.
f.ClauseT.l,.2Tprovidesthat,aspartoftheoverallresponsibilityof
the Development Manager, the Development Manager shall also
undertake al1 the activities in respect of the customer management inter
alia including sales Process, sales closure, marketing' customer
interactions, customer relationship management, handover of possession'
assistance in formation of society etc' on behalf of the Developer'
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shall bear all
therein and the Developer shall be exclusively liable for and
and the same
claims and liabilities with respect to the purchasers of units
for sale of
shall be reflected in all documents executed with the purchasers
any of the units. Therefore, the respondents have contended
that' if any
and
money is to be refunded, it is to be refunded by Nirmal Developers
Shapoorji Pallonji is not responsible for it'
purchasers.
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(ii) development management fees for other Services equivalent
to 9% (Nine percent) of the Revenue plus applicable taxes in respect
of the Saleable Area save and except the Presold Area;
Manager
These fees are to be paid by the Developer to the Development
every month.
be met from
event of any requirement of funds in the project which cannot
the same
the Revenue/ Project receivables and the Project Funding then
shall be sourced in the following manner'
i . (ll) Development Manager shall be entitled to sell the
Clause 13.2.
forsuchquantumofsalestillProjectmeetstheshortfallfundingandthe
after meeting
same shall be discontinued by the Development Manager
shortfallfundingrequirement' +-- \ .
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Clause 13.2.2provides that, the development manager shall fund
up
ii.
to the amount which shall not exceed the outstanding amount of
Rs'
submitthatafterclause(i)theiegislaturehasdevisedclause(iv)withthe
complaints' The
explanation having two iimbs to cover the cases like these
promoter means -
explanation appended to clause (iv) provides that' the
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i. the person who constructs or converts the building into apartment
differentthantheonewhoConstructsit,thenbotharejointlyliable.Inthis
case, the terms of the agreement to which I have referred
to above clearly
and
show that the Development Manager has the Authority to supervise
of
control all the activities of planning, selling, funding and constructing
Manager is
the project. In case of a shortfall of the funds, the Development
thatLucrativePropertiesPrivateLimitedcomesunderthesecondlimbof
aspect of the matter'
the explanation and it becomes a Promoter' This is one
who sells' if
Not only that, both the person who constructs and the Person
they are different persons, they are jointly liable for such functions and
made
responsibilities specified under the Act or the Rules and Regulation
advocate Mr'
thereunder. Therefore, I hold that, though the learned
agreement to
Diamondwala has invited my attention to the clause 7 of the
showthat,allthefinanciallabilitiesandresponsibilitieswillbeshouldered
by the Developer i.e., Nirmal Developers, I do not agree
with him because
and the Person
the law clearly mentions that if the person who constructs
and they
who sells are different, then both are deemed to be the PIomoteIS
name
arejointly liable. Lucrative Properties Private Limited is using brand
collecting money
and goodwill of M/s. Shapoorji Pallonji Private Limited'
narne and selling
from buyers, issuing the receipts bearing their logo and
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theunitsoftheprojects.Notonlythat,itissharingalmostl0%ofthe
revenue on priority basis as stipulated in clause no'11 of
the agreement
of the
referred to above. Therefore, I hold that it comes under the definition
promoter.
1.4. Now, the technical point here is, the agreement is executed between
theNirmalDevelopersandLucrativePropertiesPrivateLimitedwhichis
subsidiary of M/s. Shapoorji Pallonji Private Limited Hence' I
find that'
and
Lucrative Properties Private Limited is the Development Manager
henceitneedstobeaddedaSpromotel.Theinternalrelationsofthe
conditions
executants of the agreement will be governed by the terms and
namely
of the agreement and they will not be binding on the third parties
the allotees herein. If any financial loss is incurred by M/s' Lucrative
at
Properties Private Limited, it can be indemnified by Nirmal Developers
the most.
15'onbehalfofMs.GauriithasbeensubmittedthatShebookedtheflat
the website
relying on the date of completion of the project mentioned on
ofMahaRERAi.e.,30.06.20lg.Itisherallegationthattherespondents
have revised
revised tt to 37.12.2024. I have verified it, now the respondents
the
it to 30.06.2025. Therefore, I find. that the respondents while accepting
would be
booking of the flat made the false statement that the project
completed by 30.062019. Therefore,, the complainant
is entitled to get
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agreement to
Developers have entered into development management
which I have referred to above showing that the M/s
Shapoorii Pailonji
manager' and the
Private Limited's subsidiary would act as the project
are also issued by using the logo of M/s' Shapoorji
Pallonji Private
receipts
contend that
Limited, therefore this allegation is proved' The complainants
months from booking of
the excavation work dicl not start within the three
2019' It is
their flats and no construction work was in progress till January
booked their flats
also brought to my notice that when the complainants
on29 01'2017 '
the commencement certificate was not in force as it expired
Therefore, I find that these complaints are also covered
by section 12 of
lT.ItisamatterofrecordthatMr.MathewandMs.RubypaidRs.
1.5,27,845/- out of total consideration of Rs' 1''53'72'176f
-' Even after
and register the
receiving this amount, the respondents did not execute
section 13 of RERA'
agreement for sale. Thereby they have contravened
These complainants aiso allege that the respondents
failed to commence
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ORDER
Lirnited shall
A. Nirmal Developers and Lucrative Properties Private
interest at the
refund the amounts of the complainants with simple
rateofg%perannumfromthedatesoftheirreceipttilltheirrefund.
complaint
B. They shall pay Rs. 20,000/- to the complainants of each
towards the cost of their complaint'
C. The charge of the aforesaid amounts shall be on the respective
booked flats of the complainants till satisfaction of their
claims'
on the
D. Lucrative Properties Private Limited be added as a promoter
webpage of the project within thirty days of this order'
filed by
E. Original order is kept in complaint no' CC006000000192458
Gauri Thatte and copies are kept in other complaints'
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(B. D. Kapadnis)
Date: 05.03. 2021.
Member-II,
MahaRERA, Mumbai.
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