Neeta Sawant SA-116 OF 2025

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO. 116 OF 2025

WITH

INTERIM APPLICATION NO. 7688 OF 2025

JP Builders and Developers through

its Proprietor Jayant Shashikant Parikh ….. Appellant

: Versus :

Santosh Amarsingh Sandhu …. Respondent

Alongwith

SECOND APPEAL NO. 603 OF 2025

Santosh Amarsingh Sandhu ….. Appellant

: Versus :

JP Builders and Developers through

its Proprietor Jayant Shashikant Parikh ….Respondent

Mr. Vishal Kanade with Mr. Rajesh Vanzara i/b. S.K. Legal Associates

LLP, for the Appellant in Second Appeal No. 116 of 2025 and for

Respondent in Second Appeal No.603 of 2025.

Mr. Kunal R. Maskar, for the Appellant in Second Appeal No.603 of 2025

and for Respondent in Second Appeal No.116 of 2025.

CORAM : SANDEEP V. MARNE, J.

JUDGMENT RESD. ON : 16 September 2026.

JUDGMENT PRON. ON : 23 September 2026.

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Neeta Sawant SA-116 OF 2025

JUDGMENT:

1) These are cross Appeals �led by the developer and by the

allottee challenging the judgment and order dated 22 October 2024

passed by the Maharashtra Real Estate Appellate Tribunal, Mumbai

(Appellate Tribunal) thereby dismissing the Appeal of the promoter and

partly allowing the Appeal preferred by the allottee. While upholding the

Order dated 8 October 2020 passed by the Maharashtra Real Estate

Regulatory Authority, Mumbai, (Maha RERA). The Appellate Tribunal

has also directed the promoter to pay interest to the allottee on amount

of Rs.12,30,000/- w.e.f. 12 July 2016 till the date of possession and to

adjust the amount of interest against the balance payment payable in

respect of the �at in question.

2) A brief reference to the facts of the case would be necessary.

By Agreement of Lease dated 14 May 2004, the City and Industrial

Development Corporation (CIDCO) agreed to grant lease of land bearing

Plot No.1 admeasuring 8200 sq.mts, Sector No.19, Airoli, Navi Mumbai for

a tenure of 60 years for residential use to Airoli Cooperative Housing

Society Ltd. The said Society was later divided into two distinct societies,

namely, Airoli Co-operative Housing Society Ltd. and Nilamba ri

Cooperative Housing Society Ltd., by dividing the plots into two parts,

each admeasuring 4,100 sq. m. Plot 1 remained with Airoli CHSL, which

executed Development Agreement dated 27 April 2004 with M/s. JP

Builders and Developers (promoter). The promoter accordingly

constructed building on Plot No.1 having 2 wings, Wing-C and Wing-D

and obtained Occupancy Certi�cate from Navi Mumbai Municipal

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Neeta Sawant SA-116 OF 2025

Corporation on 17 January 2007. Despite construction of Wings C and D,

there was balance FSI of 824.00 sq.mts on Plot No. 1.

3) Airoli Cooperative Housing Society Ltd. decided to avail the

bene�t of developing and maintaining a garden on Plot No. 11B, which

was affected by High Tension Electricity Transmission Line and received

FSI in resepct of Plot No.11B to be utilized on its Plot No.1. Accordingly

CIDCO allotted additional FSI admeasuring 4313.94 sq.mts to Airoli

Cooperative Housing Society Ltd. under a scheme of transfer of FSI of

land beneath High Tension Line (Plot No.11B) for consumption on Plot

No.1 subject to condition of maintenance of a garden by the society on

Plot No.11B. It appears that the society got aggrieved by allotment of FSI

of only 4313.94 sq.mts and claimed entitlement in respect of FSI of 10,450

sq.mts and �led a Writ Petition in this Court in the year 2009. During

pendency of the Writ Petition, the promoter decided to exploit the

balance FSI of 824.00 sq.mts available on Plot No.1 and accordingly

secured Commencement Certi�cate dated 14 July 2011 for carrying out

construction to the tune of 745.472 sq.mts. The promoter also prepared a

tentative plan by taking into consideration additional FSI made available

to the Society for construction of a building comprising of ground plus 30

�oors with 2 wings, A and B during pendency of the writ petition. The

promoter commenced bookings in the year 2009-10 giving idea to the

prospective purchasers about pendency of the Writ Petition.

4) Mrs. Vandana Nagendra Kharatmol and Mr. Nagendra Piraji

Kharatmol (Kharatmols) showed interest in purchasing Flat No.502 on

the 5th �oor of the proposed A-wing building at consideration of

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Neeta Sawant SA-116 OF 2025

Rs.48,75,000/-. They paid token amount of Rs.3,00,000/- for reserving the

�at. Accordingly, Letter of Allotment was issued to Kharatmols by the

Promoter on 28 May 2011. Kharatmols thereafter paid further sum of

Rs.9,30,000/- and by 2 March 2012 the total consideration paid by

Kharatmols was to the tune of Rs.12,30,000/-.

5) Kharatmols however lost interest in purchasing Flat No. A-

502 as construction of Building A could not commence due to pendency

of the writ petition �led by the society. It appears that some private

arrangement was made by Kharatmols with Mr. Santosh Sandhu

(allottee) for transfer of booking of Flat No. A-502. The promoter was

accordingly requested by Kharatmols to transfer the booking of Flat No.

A-502 in the name of the allottee. According to the promoter, Kharatmols

made a request for refund of amount of Rs.12,30,000/-, which was

supposed to be paid by the allottee. Accordingly, fresh allotment letter

dated 11 July 2013 was issued in favour of the allottee for Flat No. A-502

and the allottee paid an amount of Rs.12,30,000/- to the promoter.

6) On 13 January 2016, Writ Petition No. 4325 of 2009 was

�nally decided by this Court. It appears that the Society was unsuccessful

in securing higher FSI, and accordingly, CIDCO executed a Supplementary

Agreement dated 7 April 2017, permitting consumption of FSI of Plot No.

11B on Plot No. 1 and the construction of a garden by the Society on Plot

No. 11B. Accordingly, the Municipal Corporation issued revised

Commencement Certi�cate dated 26 April 2019 for construction of

building of ground plus 19 �oors consisting of 93 residential units.

According to the promoter, originally planned A-502 could not be

constructed due to change in the plans.

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Neeta Sawant SA-116 OF 2025

7) After coming into effect of the Real Estate (Regulation and

Development) Act, 2016, (RERA) the promoter registered the Project on

31 July 2017. After securing revised Commencement Certi�cate, the

promoter issued letter dated 3 May 2019 to the allottee calling him upon

to pay stamp duty and registration charges for execution of Agreement for

Sale. The allottee was also called upon to choose any other �at in the

building. The allottee chose Flat No.1208 on 12th �oor of the building

which the promoter agreed to allot subject to payment of �oor rise

charges of Rs.1,75,000/-. The promoter issued one more letter dated 28

May 2019 to the allottee for payment of stamp duty and registration

charges for execution of the Agreement for Sale. It appears that the

allottee was facing �nancial crunch and was not in a position to pay the

stamp duty. He requested the promoter to bear the stamp duty with a

promise to return the same upon disbursal of loan. The promoter however

did not accept the request. The promoter �nally terminated the

transaction by notice dated 30 July 2019.

8) The allottee �led complaint before the Maharashtra Real

Estate Regulatory Authority in November 2019. By order dated 6 March

2020, Maha RERA granted interim relief in favour of the allottee directing

promoter to execute registered Agreement for Sale with the allottee. By

�nal order dated 8 October 2020, Maha RERA disposed of the Complaint

directing implementation of the interim order.

9) Both the promoter, as well as the allottee got aggrieved by

�nal order dated 8 October 2020 passed by the Maha RERA and preferred

their respective Appeals before the Appellate Tribunal. By common

judgment and order dated 22 October 2024, the Appellate Tribunal has

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Neeta Sawant SA-116 OF 2025

dismissed the Appeal preferred by the promoter and has partly allowed

the Appeal preferred by the allottee. While upholding the order of the

Maha RERA, the Appellate Tribunal has directed the promoter to pay

interest to the allottee on amount of Rs.12,30,000/- at the rate of SBI

Marginal Cost Lending Rate (MCLR) plus 2% w.e.f. 12 July 2016 till the

date of possession. The Appellate Tribunal has directed adjustment of the

interest amount against the balance consideration payable by the allottee

at the time of handing over possession of the �at. The promoter is

directed to hand over possession of the �at chosen by the allottee upon

completion of the Project. The promoter is restrained from creating any

third party rights and interest in the subject �at. The promoter is also

restrained from charging any amount on account of �oor rise.

10) Though the allottee has, by and large, succeeded before the

Appellate Tribunal, he is also aggrieved by the order of the Appellate

Tribunal and has accordingly �led Second Appeal No.603 of 2025. The

promoter has �led Second Appeal No.116 of 2025 challenging the order of

the Appellate Authority.

11) By order dated 16 September 2026, this Court has admitted

the Appeals by formulating the following questions of law :

(i) Whether the allottee proved before Maha RERA and the Appellate

Tribunal that he had paid the requisite stamp duty for execution and

registration of the agreement?

(ii) Whether the developer was justi�ed in terminating the allotment of

�at by notice dated 30 July 2019?

(iii) Whether the Maha RERA and the Appellate Tribunal are justi�ed in

directing execution of agreement by the developer in favour of the

allottee in respect of the �at of choice of allottees?

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(iv) Whether the Appellate Tribunal is justi�ed in directing payment of

interest on amount of Rs. 12,30,000/- and adjustment of interest amount

against balance amount payable by the allottee?

(v) Whether the Maha RERA and Appellate Tribunal are justi�ed in

rejecting allottee’s in contention that the consideration paid by the

earlier allotees – Vandana Nagendra Kharotmal and Nagen dra

Kharotmal ought to be adjusted in the transaction entered into by the

allottee with the developer?

12) Mr. Kanade, the learned counsel appearing for the promoter

submits that both Maha RERA, as well as the Appellate Tribunal have

grossly erred in directing the promoter to execute Agreement for Sale and

to allot a �at of choice to the allottee. He submits that the Agreement for

Sale could not be executed on account of failure to pay stamp duty and

registration charges by the allottee. He takes me through various

correspondence before issuance of termination notice dated 30 July 2019.

He submits that by email dated 30 June 2019, the all ottee had

emphatically expressed inability to pay the stamp duty due to �nancial

dif�culties. That the promoter was always ready and willing to execute

the Agreement for Sale. That on account of non-cooperation by the

allottee, the transaction was required to be terminated vide notice dated

30 July 2019. That the promoter refunded the amount of Rs.11,07,000/-

after deducting amount of Rs.1,23,000/- towards earnest money deposit.

That the allottee failed to encash the cheques towards refund of booking

amount. That in such circumstances, the promoter cannot be held

responsible for non-execution of the agreement. That therefore both

interim as well as �nal orders passed by the Maha RERA are clearly

perverse since both the orders do not even take into consideration the

factual situation indicating absence of interest on the part of the allottee

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Neeta Sawant SA-116 OF 2025

to complete the transaction. That the Maha RERA and Appellate Tribunal

erroneously exercised jurisdiction in the present case. That in absence of

Agreement for Sale, direction for payment of interest could not have been

issued by the Appellate Tribunal. That having refused to avail allotment

of alternate �at, the allottee could not have been granted relief by Maha

RERA and by the Appellate Tribunal. That both the orders are passed in

gross ignorance of the material available on record and are accordingly

perverse. He prays for setting aside the orders passed by the Maha RERA

and by the Appellate Tribunal.

13) So far as the Appeal preferred by the allottee is concerned,

Mr. Kanade submits that Kharatmols had requested for refund of the

booking amount paid and that the same has been rightly refunded by the

promoters to Kharatmols. That so far as promoter is concerned, there was

no agreement for adjustment of amount paid by Kharatmols w hile

transferring booking of �at in the name of the allottee. That a fresh and

new allotment vide letter dated 11 July 2013 was made in the name of the

allottee having no connection with the transaction of Kharatmols. That

therefore the Appeal preferred by the allottee deserves to be dismissed by

taking into consideration the concurrent �ndings of facts recorded by

Maha RERA and by the Appellate Tribunal.

14) Per-contra, Mr. Maskar the learned counsel appearing for the

allottee opposes the appeal preferred by the promoter. He submits that

the Appellate Tribunal has rightly appreciated the position that the

promoter failed to execute the Agreement for Sale with the allottee

thereby violating the provisions of Section 13 of the RERA. That the

demand for payment of further consideration by the promoter without

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Neeta Sawant SA-116 OF 2025

executing Agreement for Sale was clearly illegal. That the allotment is

ultimately cancelled for non-payment of further amount of consideration.

Mr. Maskar further submits that the allottee paid the stamp duty of

Rs.4,35,000/- and registration charges of Rs.30,000/- and intimated the

same to the promoter by email dated 9 July 2019. That the promoter has

erroneously terminated the transaction by falsely recording that the

payment was not made available to it. He submits that by email dated 9

July 2019, the payment receipts were forwarded to the promoter. That

termination of transaction by the promoter is therefore rightly held to be

erroneous by Maha RERA and the Appellate Tribunal. He therefore

submits that there is no warrant for interference in the order passed by

the Appellate Tribunal in the appeal preferred by the Promoter. He prays

for dismissal of the promoter’s appeal.

15) So far as the appeal preferred by the allottee is concerned,

Mr. Maskar submits that there was clear understanding between the

allottee and Kharatmols for adjustment of consideration paid by

Kharatmols to the promoter against purchase transaction executed by the

allottee. He submits that under the MOU, the allottee paid various

amounts from time to time to Kharatmols totally aggregating to Rs.

34,55,000/-. That therefore the allottee is entitled to adjustment of entire

amount of Rs.12,30,000/- paid by Kharatmols to the Promoter. That the

allottee has stepped into the shoes of Kharatmols and is entitled to all

rights of Kharatmols. In support, he relies on judgment of the Apex Court

in Laureate Buildwell Private Limited Versus. Charanjeet Singh

1

. That

therefore the total amount paid by the allottee to the promoter in respect

1 (2021) 20 SCC 401

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Neeta Sawant SA-116 OF 2025

of the transaction is Rs.28,75,281/-. He submits that to this extent, the

order passed by the Arbitral Tribunal is clearly erroneous and deserves to

be set aside.

16) Rival contentions urged on behalf of the parties now fall for

my consideration.

17) The case involves a failed transaction of purchase of �at by

the allottee from the promoter. From the history narrated above, it is

clear that the promoter was expecting allotment of additional FSI

admeasuring 10,450 sq.mts to Airoli CHSL from CIDCO and accordingly

had made plans for construction of 30 storey building. Based on those

plans, the promoter entered into transaction with Kharatmols for sale of

Flat No.502 on 5th �oor in A-Wing for consideration of Rs. 48,75,000/-.

Kharatmols paid amount of Rs. 12,30,000/- to the promoter, who issued

Letter of Allotment dated 28 May 2011. Since Kharatmols lost interest in

purchasing the �at on account of non-progress of construction of the

building due to pendency of Writ Petition No.4325 of 2009, it appears that

the allottee stepped in and showed interest in purchasing Flat No.A-502.

18) The allottee relies on MOU dated 27 June 2013 executed with

Kharatmols under which he claims that he had agreed to pay amount of

Rs.29,00,000/- to Kharatmols for transfer of rights under allotment letter

dated 28 May 2011 in respect of Flat No.A-502. An MOU dated 27 June

2013 is claimed to have been executed between the allottee and

Kharatmols under which an amount of Rs.6,80,000/- was to be paid in

cheque and amount of Rs.22,20,000/- was to be paid in c ash to

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Neeta Sawant SA-116 OF 2025

Kharatmols. The allottee claims to have paid various amounts to

Kharatmols totaling to Rs.34,55,000/-.

19) After the allottee approached the promoter for transfer of the

booking, the Promoter issued a fresh allotment letter dated 11 July 2013

in favour of the allottee agreeing to allot Flat No. A-502 for consideration

of Rs.48,75,000/-. The allotment letter records payment of amount of

Rs.12,30,000/- by the allottee to the promoter.

20) As observed above, the originally planned building of ground

plus 30 storey could not be constructed on account of society not securing

rights in respect of higher FSI and accordingly the building was required

to be scaled down to ground plus 19 �oors. Thus, Flat No. A-502 which

was earlier allotted to Kharatmols and later allotted to the allottee has

actually not been constructed. The promoter called upon the allottee to

select some other �at and called upon the allottee to pay stamp duty and

registration charges. There is dispute amongst the parties as to whether

the allottee paid the stamp duty and registration charges or not. Alleging

non-payment of stamp duty and registration charges, the promoter has

cancelled the transaction by notice dated 30 July 2019.

21) In the light of the above factual position, Maha RERA initially

passed interim order dated 6 March 2020 directing the promoter to

execute Agreement for Sale with the allotteee. The interim order is

thereafter made absolute on 8 October 2020 while disposing of the

Complaint, which envisages allottee to choose the �at and the Promoter

to execute the Agreement for Sale in respect thereof. The Appellate

Tribunal has bettered the relief granted by Maha RERA in favour of the

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Neeta Sawant SA-116 OF 2025

allottee by directing payment of interest on the amount of Rs.12,30,000/-

and adjustment thereof against balance consideration.

22) I now proceed to decide the �ve questions framed at the time

of admission of the appeals.

Question No.1

23) The promoter claims that the allottee did not pay stamp duty

and registration charges and that therefore the promoter was justi�ed in

terminating the transaction vide notice dated 30 July 2019. It is

contended on behalf of the promoter that both Maha RERA, as well as

Appellate Tribunal have grossly erred in holding that the transaction is

cancelled on account of failure to pay further consideration by the

allottee. Mr. Kanade submits that the real reason for termination is

refusal by the allottee to pay stamp duty and registration charges. On the

other hand, Mr. Maskar has contended that stamp duty of Rs.4,35,000/-

and registration fees of Rs.30,000/- was infact paid by the allottee. My

attention is invited to the email dated 9 July 2019 by which the allottee

apparently forwarded the payment receipts in respect of payments made

towards stamp duty of Rs.4,35,000/- and registration fees of Rs.30,000/-

and called upon the promoter to complete the registration process within

3 days. He also requested to add his mother's name in the agreement. The

email dated 9 July 2019 contains four attachments, including two

documents relating to payment of stamp duty.

24) On the other hand, Mr. Kanade has invited my attention to

termination notice dated 30 July 2019 in which it was contended as under:

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Neeta Sawant SA-116 OF 2025

Your Client was given 15 days' time to pay the balance consideration of

Rs. 12,95,000/- as per the schedule of MahaRERA and also to execute the

Agreement for Sale by paying the stamp duty and registration charges. It

appears that your Client has not made the payment to my Client,

although in your Reply you have mentioned that your Client has made

the payment of Rs.4,65,000/- towards stamp duty. However, no payment

advice has been made available to my Client so far.

25) It is therefore sought to be suggested on behalf of the

promoter that though email dated 9 July 2019 claimed payment of stamp

duty and registration charges, proof thereof was never submitted to the

promoter. However, Mr. Maskar has placed on record an additional

compilation containing four documents. The �rst document is an extract

of account of the allottee with Punjab National Bank (PNB), from which it

appears that the amount towards stamp duty or registration charges was

transferred to the concerned account of the PNB from where the challans

were to be generated. The second document is again account statement of

the allottee which indicates transfer of amount of Rs.4,65,000/- to the

concerned account of PNB. Based on these two documents, the allottee

claims that the said entry is for payment of stamp duty and registration

charges of Rs.4,65,000/-.

26) The third document however makes it clear that the amount

was never credited in the account of Stamp Authority and Registration

Authority and the amount remained with the bank itself. On 18 January

2020, the allottee submitted following letter to his bank :

I SANTOSH AMARSINGH SANDHU, HAS DONE NEFT TRANSACTION

OF RS. 4,65,000.00/- ( FOUR LAKHS SIXTY FIVE THOUSAND) ON

09/07/2019 TO YOUR  ACCOUNT NUMBER 413800MG00000011,  BANK

NAME : PUNJAB NATIONAL BANK, BRANCH CBD, BELAPUR (4138)

FOR PAYMENT OF STAMP DUTY AND REGISTRATION CHARGES. BUT I

WAS UNAWARE ABOUT GENERATING CHALLAN BASED ON WHICH E-

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SBTR WILL BE GENERATED. SO WHEN I VISITED YOUR BRANCH

TODAY, I WAS INFORMED THAT YOUR BRANCH HAS STOPPED

ISSUING E-SBTR. SO I REQUEST YOU TO REFUND THE ABOVE

AMOUNT TO MY ACCOUNT NO. 5894000100026669 (AIROLI BRANCH ).

I SHALL DO NEFT FROM THE AIROLI BRANCH TO THE MAHA GOVT

STATUTORY E-PAYMENT ACCOUNT. 

27) Thus, letter dated 18 January 2020 itself contains a clear

admission that the challan itself was not generated nor e-payment receipt

was generated. The allottee requested for transferring the amount back to

his account. The bank accordingly re-transferred the amount of

Rs.4,65,000/- to the allottee by reversing the challan amount, which is

clear from the fourth document in the compilation.

28) Thus, from the documents placed on record, it becomes

dif�cult to hold that the allottee actually ever paid stamp duty or

registration charges to the concerned authorities as claimed in the email

dated 9 July 2019. If stamp duty and registration charges were paid,

speci�c challans to that effect would have been generated which are

required to be attached with the Agreement for Sale at the time of

execution and registration thereof.

29) On 9 July 2019 itself, the promoter’s advocate had issued

notice to the allottee alleging non-payment of stamp duty. The advocate

of the allottee gave response on 19 July 2019 vaguely stating that the

allottee had already paid stamp duty. In the termination notice dated 30

July 2019, the promoter emphatically stated that no proof of payment was

made available to it evidencing payment of Rs. 4,65,000/- towards stamp

duty and registration charges. After receipt of termination notice, as well

as after receipt of cheques towards refund of amount of Rs.11,07,000/- the

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Neeta Sawant SA-116 OF 2025

allottee responded vide letter dated 30 October 2019 in which he failed to

produce any evidence of actual payment of stamp duty and registration

charges.

30) From the documents on record, it becomes dif�cult to believe

that the allottee actually made payment of stamp duty and registration

charges. Mere making provision for stamp duty and registration charges

and transfer of the amount to the banker does not mean that stamp duty

and registration charges were actually paid by the allottee. He did not pay

stamp duty and registration charges to the promoter nor there is any

evidence of transfer of amount of Rs.4,65,000/- to the accounts of the

concerned authorities. Atleast after receipt of advocates' notice dated 9

July 2019 alleging non-payment of stamp duty and registration charges,

the allottee ought to have approached the bank to verify whether the

necessary challans were generated and ought to have produced copies of

such challans to the Promoter. In the absence of proof of payment of the

stamp duty and registration charges to be annexed to the Agreement for

Sale, the promoter was left with no alternative but to refrain from

proceeding with the registration of the Agreement for Sale.

31) The conduct of the allottee also makes it dif�cult to believe

that he had actually paid the stamp duty and registration charges. After

sending email dated 9 July 2019 stating that 'I have done payment to

MAHA GOVT STATUTORY EPAYMENT....' and after receipt of notice

dated 9 July 2019, the allottee did not make any efforts to ensure that

necessary proof of payment of stamp duty is generated. He never

approached the bank to �nd out whether the challan is issued. He instead

approached the advocate for issuing reply to the notice on 19 July 2019.

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Neeta Sawant SA-116 OF 2025

The ordinary conduct would have been to approach the of�ce of the

promoter by producing challans for payment of stamp duty an d

registration charges and to secure draft of the Agreement for Sale for

further processing and registration thereof. None of these actions were

undertaken by the allottee, who merely waited for the promoter to take

the necessary steps, leaving the promoter with no alternative but to

terminate the transaction on 30 July 2019. Even after 30 July 2019, the

allottee made no efforts to �nd out as to whether the challans of stamp

duty and registration charges are in fact generated or not. He approached

the bank only on 18 January 2020 seeking refund of the amount stating

that he would do NEFT from Airoli Branch to Maharashtra Government

Statutory e-payment account. However, he failed to act in accordance

with the letter dated 18 January 2020, and there is nothing on record to

indicate that after 18 January 2020, he made any payment towards stamp

duty, despite allegedly having received a refund.

32) Maha RERA as well as Appellate Tribunal failed to conduct

enquiry into the aspect as to whether the stamp duty and registration

charges were indeed paid by the allottee or not. In the entire orders of

Maha RERA and the Appellate Tribunal, there is no discussion on the

issue of payment of stamp duty and registration charges by the allottee.

33) Issue No.1 is accordingly answered by holding that the

allottee did not make payment of stamp duty and registration charges

before 30 July 2019 when the sale transaction was terminated by the

Promoter.

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Question Nos. 2 and 3

34) Maha RERA and the Appellate Tribunal have directed the

promoter to execute in favour of the allottee, an agreement in respect of

the �at chosen by the allottee. The initial direction in this regard was

through interim order dated 6 March 2020 passed by Maha RERA. In that

order, the Maha RERA referred to provisions of Section 13 of RERA and

held that since more than 10% of the agreed amount of consideration was

paid by the allottee and since Agreement for Sale was not executed, the

promoter had the liability under Section 13 to execute a registered

Agreement for Sale. Accordingly, Maha RERA directed in paragraph 4 of

order dated 6 March 2020 as under:

4. The MahaRERA has examined the arguments advanced by both the

parties as well as the record. In the present case, the complainant is

seeking relief under section-13 of the RERA for execution of agreement

for sale and admittedly more than 10% amount has been paid by the

complainant for purchase of the said �at and till date, no agreement for

sale has been executed. Therefore, the MahaRERA feels that as per the

provisions of section-13 of the RERA, the respondent is liable to execute

the registered agreement for sale with the complainant under the

provision of section-13 of the RERA. Hence, the MahaRERA directs the

respondent to execute the registered agreement for sale with the

complainant for another �at having equal area as per the choice of the

complainant within a period of 30 days.

35) In the �nal order dated 8 October 2020, Maha RERA did not

record detailed reasons. After recording submissions canvassed by the

rival parties, Maha RERA referred to interim order dated 6 March 2020

and held that since the interim order was not challenged by the promoter,

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Neeta Sawant SA-116 OF 2025

it directed the promoter to comply with the order within 30 days. Maha

RERA held in paragraph 5 of the order as under:

5. MahaRERA has examined the arguments advanced by both the parties

as well as the records. In the present case, prima facie it appears that

there is an interim order passed on 06-03-2020 passed by MahaRERA

wherein speci�c direction was given to the respondent to execute the

agreement for sale with the complainant within a period of 30 days with

respect of another �at having equal area as per the choice of the

complainant. However, the said direction has not yet been complied

with by the respondent. The MahaRERA is also observed that the said

direction was issued after considering the submissions made by both the

parties as well as after perusing the records. Therefore, these averments

made by both the parties need not to be reconsidered. Moreover,

nothing has been brought on record of MahaRERA by either party to get

review of the said interim order. Further after passing of the said order

by MahaRERA there was lockdown declared by the Government due to

Covid-19 pandemic. Therefore, within 30 days period the direction could

not have been complied with by the respondent. Moreover , the

respondent has not challenged the said interim order passed on 6-03-

2020. Therefore, considering all these facts brought on record of

MahaRERA, MahaRERA directs the respondent to comply with the

directions issued by MahaRERA vide interim order dated 06 March 2020

within 30 days from this order.

36) The Appellate Tribunal again referred to provisions of

Section 13 of RERA and held the promoter was not entitled to recover

further payments form the allottee without �rst executing the Agreement

for Sale.

37) The issues of validity of termination of allotment of �at by

notice dated 30 July 2019 and the liability of the promoter to execute the

agreement in favour of the allottee are interconnected. If termination is

held to be valid, there is no question of executing the Agreement for Sale

by the promoter with the allottee. I accordingly proceed to examine

whether termination of transaction vide notice dated 30 July 2019 by the

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Neeta Sawant SA-116 OF 2025

promoter is valid or otherwise. While answering Issue No.1, this Court has

held that the allottee failed to pay stamp duty and registration charges for

execution of the Agreement for Sale. One needs to understand the

background leading to termination notice dated 30 July 2019.

38) After revised Commencement Certi�cate dated 26 April 2019

was issued by Navi Mumbai Municipal Corporation, the promoter issued

notice dated 3 May 2019 to the allottee intimating that the plans were

sanctioned for construction of the building upto 19

th

�oor. Referring to

provisions of RERA, the promoter highlighted the need to execute

registered Agreement for Sale. Accordingly, the promoter called upon the

allottee to execute Agreement for Sale by completing the process of

payment of stamp duty. There was no response from the allottee.

Therefore, a reminder letter dated 28 May 2019 was issued by the

promoter. Again, there was no response from the allottee. Therefore, a

�nal notice dated 24 June 2019 was issued by the promoter to the allottee

granting time of one week to pay the stamp duty and registration charges.

This time, the allottee responded by sending email dated 30 June 2019 in

which he expressed inability to pay the stamp duty as he did not have the

required funds for payment of stamp duty. Instead, he suggested that he

was availing loan of Rs.40 lakhs as against balance liability of only Rs.33

odd lakhs and that therefore payment of stamp duty and registration

charges could be arranged through the loan amount. The allottee

therefore gave two options to the promoter. In option-1, he requested the

promoter to wait for 3 months for arranging the funds for payment of

stamp duty and registration charges. In the second option, he requested

the promoter to bear the stamp duty and registration charges through

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Neeta Sawant SA-116 OF 2025

home loan, which the allottee was going to avail. The relevant portion of

email dated 30 June 2019 reads thus:

Instead I had shown you the sanction letter from SBI Bank Wherein Bank

has agreed to grant me loan of Rs. 40 lakhs which shows that I am

preparing for processing the required formalities for the home for which

I am waiting since years. I am attaching the SBI Sanction letter with this

letter.

Also, to inform you I have to pay you only 33 lakhs(approx.) out of the

agreement value of 48.75 lakhs but I am availing 40 lakhs loan so as to

cover the stamp duty and Registration charges. Now the question arises

of paying the stamp duty.

I clearly explained you that currently I am not having the required cash

for paying the stamp duty, but I gave you 2 options which are as follows:

1. If you are ready to wait for 3 months, I shall manage the funds for

Stamp duty and registration and complete all the required formalities.

2. The 2nd option was if you can't wait for 3 months, and you are in very

much need of money, then you be kind enough to bear the stamp duty

and registration charges from your pocket and claim the same from the

Home loan through your demand letter to the bank from which I am

availing Loan (the process you might be aware of demand request money

from bank).

3. The Bank will disburse the required money only in your name as per

the demand letter. Since all the sanctioned Loan amount will be directly

paid to you there is no question that you will have to suffer, or your

money will be blocked. As soon as you make demand request you will get

your money.

As currently I am short of funds but at the same time Lam ready to get

the amount from bank and even Bank has agreed to grant me loan.

39) The promoter responded by email dated 2 July 2019 calling

upon to the allotte pay the stamp duty and registration charges in the

indicated account.

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Neeta Sawant SA-116 OF 2025

40) As discussed above, though the allottee attempted to pay the

stamp duty, the same remained in the bank account of Punjab National

Bank and never really got transferred to the stamp authorities. The

promoter accordingly served advocate’s notice dated 9 July 2019 granting

last opportunity of 15 days to pay stamp duty and registration charges.

When the promoter had emphatically stated that the stamp duty was not

paid and that the necessary documents to indicate payment of stamp duty

were not provided, the natural conduct of the allottee would have been to

approach the bank and inquire as to why the challans are not generated.

Instead of doing so, the allottee opted to issue advocate’s reply dated 19

July 2019. Since the promoter did not receive any evidence of generation

of challans for payment of stamp duty and registration charges, it

proceeded to issue termination notice dated 30 July 2019. After receipt of

termination notice dated 30 July 2019, the allottee maintained silence for

the next 3 long months, which is the most unusual conduct of a person

who is accused of non-payment of stamp duty. The promoter refunded

the booking amount of Rs. 11,07,000/- after deducting earnest money

deposit of Rs.1,23,000/-. Only after receiving the refund cheque, the

allottee sent response dated 30 October 2019 which is totally silent about

payment of stamp duty and registration charges. After sending response

dated 30 October 2019, there was again a stoic silence by the allottee, who

made no efforts to inquire about non-generation of challans by the Bank.

As observed above, the next action initiated by the allottee is directly on

18 January 2020, when he wrote to the bank for return of amount of

Rs.4,65,000/-. Importantly, even after receiving the return of the amount

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Neeta Sawant SA-116 OF 2025

from the Bank, the allottee made no attempt to pay stamp duty or

registration charges.

41) Considering the above chronology of events, in my view, the

promoter was clearly justi�ed in terminating the transaction by notice

dated 30 July 2019. Both Maha RERA as well as Appellate Tribunal, turned

blind eye to the events that transpired before issuance of termination

notice. They mechanically referred to the provisions of Section 13 of

RERA for holding the promoter responsible for non-execution of the

agreement, ignoring the position that the promoter was always ready and

willing to execute Agreement for Sale. In the present case, the transaction

of booking the �at took place before the advent of RERA. The project got

registered under RERA in 2017. However, there was absence of clarity

about construction of the building and the clarity was achieved only on 26

April 2019 when plans were sanctioned by Navi Mumbai Mu nicipal

Corporation. Immediately after sanction of plans on 26 April 2019, the

promoter wrote to the allottee on 3 May 2019 calling him upon to execute

registered Agreement for Sale. At this juncture there was no demand by

the promoter for payment of further consideration. The promoter issued

three notices dated 3 May 2019, 28 May 2019 and 24 June 2019 requesting

the allottee to execute the Agreement for Sale by paying the stamp duty

and registration charges. Instead of complying with the requisition, the

allottee expressed inability to arrange the funds for payment of stamp

duty and registration charges. Thus, opportunity to execute and register

Agreement for Sale was not availed by the allottee and both Maha RERA

and Appellate Tribunal have egregiously erred in holding the promoter

responsible for non-execution of Agreement for Sale. The promoter

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Neeta Sawant SA-116 OF 2025

thereafter issued further notices on 2 July 2019 and 9 July 2019 again

calling upon the allottee to pay stamp duty and get the Agreement for

Sale executed. Thus, as against 5 notices sent by the promoter for

registration of the agreement, there is one response by the allottee

expressing inability to pay stamp duty and thereafter a false picture being

created about payment of stamp duty vide email dated 9 July 2019.

42) More importantly, after receipt of termination notice dated

30 July 2019, the allottee maintained silence for about 6 long months and

thereafter surreptitiously approached the bank and obtained refund of

amount meant for stamp duty and appropriated the said amount for his

own needs. Though a speci�c representation was made to the bank that

the stamp duty would be paid through the speci�ed means/accounts, no

such attempt was made by the allottee. While seeking retun of the

amount from the Bank, the allottee stated in his letter that “I shall do

NEFT from the Airoli branch to the Maha Govt statutory e-payment account.’

However there is nothing on record to indicate that the allottee paid the

stamp duty after receipt of amount in his bank account. In my view

therefore, the allottee himself is responsible for non-execution of the

Agreement for Sale. The promoter was always ready and willing to

execute the Agreement for Sale. In that view of the mater, termination of

the transaction vide notice dated 30 July 2019 appears to be perfectly in

order. The promoter is not expected to wait endlessly.

43) In the facts of the present case, it appears that the allottee

was not interested in payment of stamp duty. In some cases, the �ats are

hoarded based on allotment letters and then traded in the market. The

allottee himself secured the allotment from other persons. He might be

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Neeta Sawant SA-116 OF 2025

looking forward to similar transaction and was averse to spending monies

on payment of stamp duty and registration charges. Otherwise, the

allottee may not have the funds for making the payment of stamp duty

and registration charges as he speci�cally stated so in his email dated 30

June 2019. It is therefore not known whether the allottee was merely

interested in securing ownership of the �at in his name or was merely

hoarding the �at with the intention of transferring the allotment letter. A

genuine �at purchaser, who is stuck in a project for 6 long years, would

show the necessary alacrity for execution and registration of the

Agreement for Sale. However, in the facts of the present case, it appears

that the allottee had no interest in getting the agreement registered. He

initially showed inability to arrange funds for payment of stamp duty and

registration charges. Though he made some arrangements, the moment

the transaction was cancelled by the promoter, he happily took away the

money from the bank and appropriated the same for his own use. This

conduct on the part of the allottee shows absence of will and desire to

have the agreement executed and registered.

44) In my view therefore, the Maha RERA and Appellate Tribunal

have grossly erred in directing the promoter to execute registered

Agreement for Sale in favour of the allottee.

45) Issues Nos.2 and 3 are thus answered by holding that the

promoter is justi�ed in terminating the allotment of �at by notice dated

30 July 2019 and that the Maha RERA and Appellate Tribunal have erred

in directing execution of the agreement by the Promoter in favour of the

allottee.

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Neeta Sawant SA-116 OF 2025

Question No.4

46) Since Issue Nos.1 to 3 are answered against the allottee and

in favour of the promoter, Issue No.4 is rendered academic in the context

of adjustment of interest amount against balance consideration. However,

though this Court has arrived at the conclusion that termination of sale

transaction by the promoter is valid, the allottee would still be entitled to

secure refund of the consideration already paid. In the present case, what

is proved is payment of consideration of Rs.12,30,000/-. The Appellate

Court has directed the promoter to pay interest on the amount of

Rs.12,30,000/- at the rate of MCLR + 2% w.e.f. 12 July 2016 till the date of

possession.

47) The promoter is not really averse to refund the amount of

consideration to the allottee. Mr. Kanade has fairly left the issue of

interest to be determined by this Court. However, he has submitted that

since the promoter had refunded the amount of Rs.11,07,000/- to the

allottee, the promoter be not burdened with liability to pay interest.

48) Though the sale transaction is validly terminated, the

promoter is not entitled to retain the booking amount of Rs.12,30,000/-.

He is also not entitled to deduct any amount towards EMD. In my view

therefore, the booking amount of Rs.12,30,000/- deserves to be returned

to the allottee.

49)Coming to the issue of interest, in my view, the allottee is

responsible for non-execution of the agreement after 30 July 2019.

Therefore, ordinarily interest would be payable from the date of allotment

upto 30 July 2019. However considering the unique fact s and

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Neeta Sawant SA-116 OF 2025

circumstances of the case, I deem it appropriate to award interest from 12

July 2016 as directed by the Appellate Tribunal. This is done as the

allottee was made to wait for a considerable period of time for

construction of the �at. May be he was in �nancial dif�culties and was

unable to pay the stamp duty and registration charges. His need for funds

would have made him utilize the withdrawn amount. The promoter has

left it to the court to decide about interest. Awarding interest to the

allottee on booking amount of Rs.12,30,000/- would provide some solace

to him though he himself is responsible for cancellation of the sale

transaction. In my view, therefore the rate of interest awarded by the

Appellate Tribunal can be maintained (SBI’s MCLR + 2%) and the interest

can be directed to be paid from 12 July 2016 till the actual return of the

booking amount. Issue No.4 is answered accordingly.

Question No.5

50) The allottee claimed that he had made payment of

Rs.34,55,000/- to Kharatmols and therefore he was entitled to adjustment

of Rs.12,30,000/- paid by Kharatmols to the promoter. He �led Appeal

before the Appellate Tribunal for adjustment of total amount of

Rs.28,75,281/-. As per the details discussed in para-26 of the order of the

Appellate Tribunal, the Appellate Tribunal has rejected the contention of

the allottee about payment of Rs.28,75,281/- by him to the promoter by

holding in paras-26 and 27 of the order as under:

26. The Allottee has disputed the amount paid to the Promoter Allottee

has contended that he has made payment of Rs.28,75,281/- whereas the

Promoter has admitted the payment to the extent of Rs.12,30,000 only.

While referring to the memorandum of understanding dated 27.06.2013

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Neeta Sawant SA-116 OF 2025

executed between the Allottee with the original allottees, the Allottee

has contended that he has made the payments to the Promoter as per

details given below.

Sr. No. Amount Remark

1. Rs. 12,30,000/- Paid by Mr. And Ms. Kharatmol as booking

amounts, now stands, thus paid by the

Allottee as part consideration.

2. Rs. 12,30,000/- Booking amount paid by Allottee

3. Rs. 1,25,531/- As service tax

4. Rs. 48,750/- VAT

5. Rs. 1,50,000/- Miscellaneous charges

6. Rs.36,000/- Amenities charges

7. Rs. 55,000/- CIDCO transfer charges

8. Rs. 28,75,281/- Total amount paid

27. As we have already observed that the original allottees have

surrendered the booking of the said �at to the Promoter upon which the

Promoter has returned Rs.12,30,000/- to Mr. and Ms. Kharatmol.

Therefore, the contention of the Allottee that the said amount paid by

Mr. and Ms. Kharatmol stands to have been paid by the Allottee as part

consideration cannot be accepted. Except Rs.12,30,000/- which Allottee

has paid as booking amount towards the said �at, the rest of the

amounts mentioned by the Allottee have not been admitted by the

Promoter. In the circumstances, it was incumbent on the part of Allottee

to submit cogent documentary evidence in support of the payments

made by him. However, there is nothing on record to substantiate any

payment made by the Allottee except Rs.12,30,000/- as booking amount

paid to the Promoter. In view of this, we conclude that the Allottee had

paid the Promoter only to the extent of Rs. 12,30,000/- as booking

amount towards part consideration of the subject �at. We therefore,

reject the claim of the Allottee that he has paid Rs.28,75,281/- to the

Promoter.

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Neeta Sawant SA-116 OF 2025

51) Perusal of allotment letter dated 11 July 2013 issued to the

allottee would indicate that the allottee had agreed to pay total

consideration of Rs.48,75,000/- to the promoter and had paid an amount

of Rs.12,30,000/- to the promoter. The allotment letter does not mention

payment of any additional consideration or adjustment of consideration

paid by Kharatmols against allotment made to the allottee. More

importantly, the whole claim of payment of Rs.28,75,281/- to the

promoter got demolished on account of email of the allottee dated 30

June 2019 in which he emphatically stated that he had to pay an amount

of Rs.33 lakhs (approximately) out of agreed consideration of Rs.48.75

lakhs. If payment of Rs. 28,75,281/- had already been made, the allottee

would not have contended in the email dated 30 June 2019 that the

balance amount of consideration payable was approximately Rs. 33 lakhs

(approx).

52) In my view therefore Maha RERA and Appellate Tribunal are

justi�ed in rejecting allottee's contention that the consideration paid by

Kharatmols was required to be adjusted in the transaction entered into by

the allottee with the Promoter.

53) Reliance by Mr. Maskar on judgment of the Apex Court in

Laureate Buildwell Private Limited (supra) is inapposite. The issue before

the Apex Court was whether the timelines agreed with the earlier allottee

would bind the promoter when allotment is transferred to a new allottee.

The ratio of the judgment cannot be overstretched to mean that every

payment made by earlier allottee must be adjusted in the fresh allotment

made by the new allottee. In the present case, the earlier allottees

(Kharatmols) requested for refund of the payments made by them and the

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Neeta Sawant SA-116 OF 2025

promoter has refunded the booking amount to Kharatmols. In the

allotment letter issued to the allottee, there is no arrangement for

adjustment of any payments made by Kharatmols. If the allottee had paid

any amount to Kharatmols and the parties had agreed that the promoter

would give credit to the allottee in respect of the amount paid by the

allottee, the same ought to have been re�ected in the allotment letter.

The ratio of the judgment of the Apex Court therefore has no application

to the facts of the present case.

54) Issue No.5 is therefore accordingly answered in the negative.

55) In view of my answers to Issues Nos.1 to 5, the orders passed

by the Maha RERA and Appellate Tribunal directing execu tion of

Agreement for Sale with the allottee in respect of the �at chosen by him

are unsustainable and liable to be set aside. I accordingly proceed to pass

the following order:

(i) Order dated 8 October 2020 passed by the Maha RERA in

Complaint No. CC006000000100328, as well as judgment and

order dated 22 October 2024 passed by the Appellate Tribunal in

Appeal No. AT00600000052787/20 and Appeal No.

AT00600000052798/20 are set aside.

(ii) The promoter shall return to the allottee amount of

Rs.12,30,000/- alongwith interest @ SBI’s MCLR + 2% w.e.f. 12

July 2016 till the date of actual payment.

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Neeta Sawant SA-116 OF 2025

56) With the above directions, the Second Appeal No.116 of 2025

�led by the promoter is partly allowed and Second Appeal No. 603 of

2025 �led by the allottee is dismissed. Considering the facts and

circumstances of the case, there shall be no order as to costs. Pending

Interim Application disposed of.

[SANDEEP V. MARNE , J.]

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  23 September 2026 

NEETA

SHAILESH

SAWANT

Digitally signed by

NEETA SHAILESH

SAWANT

Date: 2026.09.23

19:47:53 +0530