Whether the Arbitration Agreement will oust the jurisdiction of Maha RERA and whether the complaint filed by a co-purchaser is maintainable?

By Dr. Sanjay Chaturvedi, LLB, Ph.D.

Ganesh Lonkar V/s D.S. Kulkarni Developers Ltd. (CC005000000000317) Order Dated: 26th December 2017.

The Complainant contends that he and his wife booked a flat no. 4-602 in DSK Mayurban, situated at Pune and the respondents promised to give its possession on or before 30th June 2017. The respondents have failed to deliver the possession of the flat on the agreed date. The complainant wants to continue in the project. According to him, as per the registered agreement for sale, the respondents are supposed to make payment of pre-EMIs of housing loan taken from Tata Capital Housing Finance Ltd. (TCHFL ) till the possession of the flat is handed over. TCHFL has issued notices to the complainant for payment of EMIs after 30th June 2017. Therefore, complainant prays that the respondents be directed to hand over the possession of their flat at the earliest and to pay EMIs from December 2016 onwards. The complaint also claims interest on the amount paid by him to the respondents.

The respondents have pleaded not guilty and they have filed their explanation to contend that co-purchaser has not been added as a party to this complaint. Therefore complaint suffers from the non-joinder necessary party. The respondents have further contended that as per clause 49 in the agreement for sale, this dispute is to be referred to the Arbitrator and therefore, this authority has no jurisdiction to adjudicate upon the present dispute.

It is further contended by the respondents that though it has been agreed by parties that the possession shall be handed over on or before 30th June 2017, they have agreed that respondents shall be permitted and allowed by the purchasers to extend the possession date and time for further period of 6 months as prescribed under Section 8(b) of Maharashtra Ownership Flats (Regulation and Promotion of Construction, Sale, Management and Transfer) Act 1963. Therefore, the extension period of 6 months allowed by this clause expires on 29th December 2017 and hence, the complaint is premature. The respondents contend that the project is delayed because of reasons which were beyond their control. Therefore, they request to dismiss the complaint.

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