Mumbai: Flat buyer caught in builder-broker dispute

Dec 29, 2018, 07:40 IST | Vinod Kumar Menon

Had bought flat in high-rise that he later discovered had already been sold to investor; both builder and broker are blaming each other

Mumbai: Flat buyer caught in builder-broker dispute
File pic

A 68-year-old Kurla resident got the shock of his life on Friday after a flat he had bought in a Vikhroli high-rise received attachment orders by MahaRERA over a disputed deal between the builder and broker. Mohammed Sharif Dalvi had booked two flats (1704 and 1705) on the 17th floor of a 19-storey under-construction building, Lareina Residency, through Sai Estate Consultants, Chembur.

However, after paying for both flats, Dalvi was able to register only one flat, 1704, and could not get an agreement for no. 1705. When he asked why, he was told that the developer had already sold the flat to an investor. Dalvi challenged the matter in MahaRERA, where S S V Developers and Builders dragged Sai Estate Consultant into it, saying they took a brokerage of 14 per cent (Rs 14 lakh) and were hence liable for the blunder.

The complaint
Dalvi, in his complaint, said he had bought the two flats through the real estate consultants at R1 crore each and had paid Rs 65 lakh towards flat no 1705 to the developer. However, it was later learnt that the flat was booked by one Kalpesh Shah and he had not cancelled the allotment, thereby causing monetary loss to Dalvi.

Blame game begin
In their response (copy with this paper), the developer said the booking of flat no 1705 by the estate consultant was not done in their presence. The developer claimed that they had sent the inventory of unsold flats, wherein they specifically mentioned that flat 1705 was for re-sale.

The developer in his plea, claims that they had asked the estate consultant to book at the rate of R1,700 per sq feet plus additional cost of Rs 3 lakh for terrace construction cost, including GST. However, the estate consultant reduced the rate for Dalvi by R2,000 per sq feet and agreed to waive off terrace cost, GST, stamp duty and registration charges. Therefore, the developer made the consultants party to the issue.

Sai Estate Consultants say
In their reply, the estate consultants stated that the developer engaged their services for selling unsold flats in the said project and that the complainant had paid the money towards 1705 straight to the developer.

MahaRERA observation
B D Kapdnis, Member and Adjudicating Officer, MahaRERA, Mumbai, said there was no dispute between the respondents and that the complainant approached the estate consultants and booked the flat. Also, the complaint purely refers to flat no 1705, as the amount of first purchaser (Kamlesh Shah) is yet to be paid by the developer and the agreement for sale executed in his (Shah's) favour has been cancelled.

Also, the developers refer to Saidham SRA Sahakari Griha Nirman Sanstha (Ltd) v/s SS Developers wherein the an Appellate Tribunal has restrained the said developer from creating a third party interest in respect of the said project. Hence, the developer has shown inability in executing the agreement for sale of flat no 1705 in the complainant's favour.

Kapadnis in his order had observed that the developer is bound by the acts or omission of the estate consultants. The developer has also contended that the estate consultants have played mischief and they are ready to execute the agreement for another flat no 1905 instead of 1705, and as the developers are not able to sell flat no 1705, the complainant is entitled to get back his money back with interest of 10.5 per cent. Also, the developer is directed to pay R20,000 towards the cost of complaint.

Complainant's lawyer speaks
Advocate Godfrey Pimenta moved an execution proceeding on behalf of Dalvi, as the developer and broker had failed to implement the September 14, 2018, order passed by MahaRERA (an appeal is allowed within 60 days from date of order) which expired on November 13. Pimenta said, "On December 28, the matter was heard, wherein B D Kapadnis passed an order for attachment of the property of the builder to the extent of Rs 73 lakhs, including interest."

When asked if disputed flat no 1705 will be attached, Pimenta said it as unlikely as it was already sold to an investor and the flat allotment was still not cancelled by the developer. However other unsold flats in the bldg or any other property belonging to the builder can be attached by the Collector.

The other side
BuilderSpeak
Hemant Parikh, a director, SSV Developers and Builders
"We can take suitable steps against Sai Estate Consultant to indemnify ourselves under law. We are filing an appeal against the RERA order at the tribunal and if necessary at any other appropriate judiciary forum. We have already filed a police complaint against Sai Estate."

BrokerSpeak
Sai Estate Consultants
When contacted, Advocate Dr Sanjay Chaturvedi, who represented Sai Consultants, said, "My client's role was only confined to brokerage as per the understanding between the developer and my client. Moreover, the customer had paid the money for the disputed flat 1705 to the developer directly. Therefore, MahaRERA has clearly stated that the developer is responsible to repay the complainant's entire amount with interest, setting aside the developer's plea to recover the money from my client, too."

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