Omkar Alta Monte project, Malad: HC asks MahaRERA to give ruling in delayed possession case within six weeks

The Bombay high court has directed MahaRERA to decide on a homebuyer's application for non-execution within six weeks, after the housing regulator failed to take action on non-compliance by the developer. The homebuyer has been waiting for possession since July 2018 and is seeking interest for the delay.

Mumbai: The Bombay high court (HC) has directed the Maharashtra Real Estate Regulatory Authority (MahaRERA) to expeditiously decide the pending application for non-execution filed by a homebuyer of Omkar Alta Monte project in Malad within six weeks after the housing regulator failed to take action on non-compliance by the developer.

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The order by a high court bench comprising justices Firdosh P Poonawalla and GS Kulkarni came after a petition was filed by Chanchal Rastogi, Anita Rastogi and Savitri Rastogi on MahaRERA failing to take action for two years on developers’ non-compliance and to pay them interest every month due to delay in possession since July 2018. The petitioners added the authority failed to understand the financial burden they faced due to the bank loan and the expenses they had to bear since they live in a rented house in Goregaon.

The HC bench on January 4 order said, “This is the only relief. We, therefore, dispose of this petition by directing that respondent no. 2 (MahaRERA) shall decide the pending application in accordance with law as expeditiously as possible and in any event within a period of six weeks from today.”

The Rastogis, who hail from Varanasi in Uttar Pradesh, live on rent in Mumbai. They said that in September 2012 they booked flat no 1006 on the 10th floor in Tower D of Omkar Alta Monte project in Malad promoted by Era Realtors, a subsidiary of Omkar Realtors and Developers. The total consideration for the 1,521 sq ft flat was ₹4.73 crore. An agreement for sale was registered on May 7, 2013, and possession of the apartment was promised on or before June 1, 2017.

Rastogis took a home loan from UCO Bank for ₹3.75 crore. However, the developer failed to deliver possession by the promised date, and the family had paid ₹4.22 crore or 89% of the total consideration of ₹4.73 crore. In December 2019, the Rastogi family finally approached MahaRERA and filed a complaint seeking interest in delayed possession, according to their petition.

On February 12, 2021, MahaRERA held that the developer failed to give possession and ordered the developer to pay interest on the actually paid amount of ₹4.22 crore from July 1, 2018, till the Occupancy Certificate was issued.

According to the petition, Omkar Developers did not comply with the MahaRERA directive nor filed an appeal with the Appellate Tribunal within 60 days as mandated by RERA provisions. Finally, the Rastogi through their lawyers Sulaiman Bhimani Sharon Fernandez and Kevin Gala of Lawsuits filed an application for non-execution of the February 2021 order. However, MahaRERA did not schedule a hearing for nearly 10 months.

During the online hearing that happened on June 22, 2022, advocate Namrata Powalkar, appearing for the developer, sought time to settle the matter amicably. So the then MahaRERA member Vijay Satbir Singh, now retired, granted one week’s time to settle the matter amicably, and file consent terms with MahaRERA, failing which the MahaRERA secretary will issue a recovery warrant under Section 40 (1) of RERA.

The petitioners were further shocked when the developer informed MahaRERA that the project had already received Occupancy Certificate (OC) for Tower D on January 8, 2022. When they made inquiries, the Rastogis learnt that the OC is a part OC only for the bare shell, but the amenities promised in the flat were still not complete.

When despite repeated reminder emails, MahaRERA failed to take any further action in the matter, the petitioners were forced to approach the Bombay high court.