Oberoi and his father, who jointly filed the complaint before MahaRERA, had booked the flat on the 43rd floor of Tower C. The possession was due in December 2017, Oberoi’s lawyer Mustafa Kachwala had argued.
The appellate bench of chairperson Justice Indira Jain and member S S Sandhu, in its August 20 order, whose certified copy was issued on Friday, said: “The appeal is dismissed for want of compliance of proviso to Section 43 (5) of RERA.” The proviso required the builder to deposit the amount.
The builder in his appeal had said he was ready and willing to hand over possession of one flat in Tower C and explore the possibility of handing over possession of an alternate flat in Tower D with an occupancy certificate. He said, “Refunding the money at the final stage of the project would adversely affect the project and jeopardise the larger interest of other flat allottees.”
The appellate tribunal had, on March 12 this year, directed the builder, Epitome Residency, to deposit the amount in compliance with mandatory provisions of the 2017 law Real Estate (Regulation and Development) Act (RERA).
At the hearing via video-conferencing on August 20, advocate Kachwala appeared for Oberoi while none appeared for the builder, noted the tribunal in its order.
The order said, “As no one appeared on behalf of appellant on 06.08.2021 nor submitted compliance to order dated 12.03.2021, the matter was kept for dismissal today.” It noted that “despite opportunities granted”, the builder has not complied with its order.
The builder’s advocate, Vibhav Krishna, when contacted on Friday, said, “We will explore all legal options available to the builder and also discuss with Oberoi to amicably resolve the issue as these are very difficult times for builders and the real estate industry with Covid-19 pandemic having created more complications.’’
The Maharashtra Real Estate Regulatory Authority (MahaRERA), too, in its July 29, 2019, order had said “alternatively” if the builder obtains the OC, “it can give possession of the flat along with prescribed rate of interest for delay”.
The builder also argued the project was delayed since certain permissions from the government were delayed and over some “restrictions on loading of transferable development rights and wrong classification of Coastal Regulation Zone. In its order, MahaRERA said even if it accepted the argument the project got delayed for reasons beyond the developer’s control, “in view of strict provisions of Section 18 of RERA Act”, the builder cannot get any benefit.