Will Arbitration Agreement come under RERA? Co-purchaser also Allotee?

By Sanjay Chaturvedi LLB, PhD

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

Whether the Arbitration Agreement will oust the jurisdiction of Maha RERA and whether the complaint filed by a co-purchaser is maintainable?, are the important legal issues involved in this complaint filed under section 18 of Real Estate(Regulation and Development) Act 2016.

The Complainant contends that he and his wife Mrs. Sharmila 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 have 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 Mrs. Sharmila Ganesh Loankar has not been added as a party to this complaint. The respondents have further contended that as per clause49 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.

Maha RERA observed that there is no substance in the objection on non-joinder because there is no conflict of interest between the co-purchasers. Here in this case though there is a clause to refer the dispute to the Arbitrator, neither the complainant nor respondents have submitted any application before this authority to refer their matter to the Arbitrator, hence RERA have jurisdiction to the case.

Credits: Landmark Judgements of RERA (Book)

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