Vayuputra Realty Pvt. Ltd vs Turf Estate Joint Venture And 13 ...
2022 Latest Caselaw 3859 Bom

                                                           3-7-IAL9902-22INSL3934-22.DOC

                                                                                 Santosh

SANTOSH                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SUBHASH
KULKARNI                        ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally signed by
SANTOSH SUBHASH
KULKARNI
Date: 2022.04.12
14:43:13 +0530

                               INTERIM APPLICATION (L) NO. 9902 OF 2022
                                                  IN
                                      SUIT (L) NO. 3934 OF 2022

                      Kesari Realty Pvt. Ltd.                       ...Applicant
                                            Versus
                      Turf Estate Joint Venture LLP and ors.      ...Respondent
                                                   AND
                              INTERIM APPLICATION (L) NO. 9932 OF 2022
                                                    IN
                                        SUIT (L) NO. 3931 OF 2022

                      Mahabal Realty Pvt. Ltd.                      ...Applicant
                                            Versus
                      Turf Estate Joint Venture and ors.          ...Respondent
                                                   AND
                              INTERIM APPLICATION (L) NO. 9896 OF 2022
                                                    IN
                                        SUIT (L) NO. 3938 OF 2022
                      Vayuputra Realty Pvt. Ltd.                    ...Applicant
                                            Versus
                      Turf Estate Joint Venture and ors.          ...Respondent
                                                   AND
                              INTERIM APPLICATION (L) NO. 9916 OF 2022
                                                    IN
                                        SUIT (L) NO. 4110 OF 2022

                      Kuber Mall Management Private Limited         ...Applicant
                                            Versus
                      Turf Estate Joint Venture LLP and ors.      ...Respondent
                                                   AND
                              INTERIM APPLICATION (L) NO. 10179 OF 2022
                                                    IN
                                        SUIT (L) NO. 4119 OF 2022

                      Aditya Vikram Bagree                                ...Applicant
                                            Versus
                      Turf Estate Joint Venture and ors.               ...Respondents


                                                   1/25
                                      3-7-IAL9902-22INSL3934-22.DOC

Mr. Venkatesh Dhond, Senior Advocate a/w. Mr. Prateek
      Saksaria, Mr. Gaurav Mehta a/w. Mr. Chaitanya
      Mehta, Ms. Sonali Aggarwal and Mr. Aamir Ali
      Sheikh i/b. M/s. Dhruve Liladhar and Co., for the
      Plaintiff in all Suits.
Mr. Nishant Chothani a/w Ms. Sneha Patil, Ms. Nidhi
      Ashiwal, Ms. Ajita Mishra, i/b. Maniar Srivastava
      Associates, for D. Nos. 8 and 9.
Mr. Sanjay Jain a/w. Ms. Rujuta Patil, Mr. Yohaan Shah, i/b.
      M/s. Negandhi Shah & Himayatullah, for D. Nos. 1 to 4,
      6, 7 and 10 in IAL No.4112/2022.
Ms. Rujuta Patil, a/w Mr. Yohaan Shah, i/b M/s.Negandhi
     Shah & Himayatullah, for Defendant nos.1 to 4, 6, 7 and
     10 in IAL/4125/2022.
Mr. D. D. Madon, Senior Advocate a/w. Ms. Rujuta Patil i/b.
     M/s.Negandhi Shah & Himayatullah, for D. Nos. 1 to 4,
     6, 7 and 10 in IAL No.3937/2022.
Mr. Aspi Chinoy, Senior Advocate, a/w Ms. Rujuta Patil i/b.
     M/s. Negandhi Shah & Himayatullah, for D. Nos. 1 to 4,
     6, 7 and 10 in IAL No.3936/2022.
Mr. Karl Tamboly a/w. Ms. Rujuta Patil, Mr. Yohaan Shah, i/b
     M/s. Negandhi Shah & Himayatullah, for D. Nos. 1 to 4,
     6, 7 and 10 in IAL No.3941/2022.
Ms. Saloni Shah, a/w Mr. Samit Shukla, i/b DSK Legal, for
     Defendant no.5 in IAL/4112/2022.

                         CORAM:       N. J. JAMADAR, J.

                         DATED :      11th APRIL, 2022
ORDER:-

1. These applications for amendment in plaint are filed under

Order VI Rule 17 of the Code of Civil Procedure, 1908 ("the

Code"). Since the genesis of the transactions in all the suits is

common and identical questions of facts and law arise for

consideration, all these applications are taken up for hearing

together and decided by this common order. The facts and

pleadings in Interim Application No.9902 of 2022 in Suit (L)

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No.3934 of 2022 (Kesari Realty Pvt. Ltd. Vs. Turf Estate Joint

Venture) are taken as the representative facts.

2. The plaintiff is a private limited company. Defendant no.1

"Turf Estate" is an association of persons. In January, 2007,

defendant no.1, through Balwa family, represented to the

plaintiff that defendant no.1 was developing a residential project

Orchid Turf View, at Mahalaxmi, Mumbai. Believing the

representation of defendant no.1, the plaintiff agreed to

purchase flats in Turf View Project. On 5th March, 2007,

defendant no.1 issued a letter of allotment of flats bearing Flat

Nos.1201 and 1202 in the said project. The said letter of

allotment constitutes the contract for sale of the suit flats.

Consideration was fixed at Rs.7,65,00,000/-. The plaintiff paid a

sum of Rs.3,82,50,000/- towards part consideration.

3. Defendant no.1 kept on assuring the plaintiffs that the

requisite permissions for commencement of the construction

were being obtained. Eventually, on 18 th May, 2020, defendant

no.1 registered the Turf View Project with MAHARERA under the

project registration No.P51900003617 as a residential project,

with 31st December, 2020 as the proposed date of completion.

Later on, the proposed date of completion was extended to 30 th

June, 2026.

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4. Defendant no.1, however, did not initiate any concrete

steps to develop the Turf View Project. Upon inquiry, it

transpired that defendant no.1 had no intention to fulfill its

obligations under the suit agreement. Defendant no.1

purportedly assigned its development rights qua the land meant

for Turf View Project in favour of defendant no.2 - Turf Estate

Joint Venture LLP. It further transpired that defendant nos.1 to

10 have inter se agreed that a commercial project would be

constructed on the said land by defendant no.2. Certain

instruments have been executed by defendant nos.1 to 12.

5. On 29th January, 2022, defendant nos.1, 2 and 4 issued a

letter purported to terminate the suit agreement and offered to

refund the amount of Rs.8,49,98,065/- to the plaintiff. The

plaintiff gave a reply and insisted for the performance of the

obligations under the letter of allotment dated 5th March, 2007.

As the defendants did not respond, the plaintiff was constrained

to institute the suit for declaration, inter alia, that the suit

agreement dated 5th March, 2007 is valid, subsisting and

binding; for specific performance of the contract contained

therein; consequential reliefs of injunction and, in the

alternative, damages and refund of the amount paid by the

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plaintiff along with interest at the rate of 18% p.a. from the date

of receipt till payment thereof.

6. In the suit, the plaintiff took out Interim Application

No.3937 of 2022 seeking, inter alia, a stay on the termination

letter dated 29th January, 2022 and injunctions, prohibitory and

mandatory, to secure the rights of the plaintiff. During the

pendency of the said application, according to the plaintiffs,

there have been developments which bear upon the controversy.

Hence, the plaintiff - applicant is constrained to take out this

application for amendment of the plaint.

7. In the application, it is averred that after the suit, interim

application and notice of hearing were served on defendant

nos.1, 2 and 4, the defendants apprised the plaintiff that fixed

deposit has been created in favour of the plaintiff on account of

refusal of the plaintiff to accept the cheque drawn for

Rs.9,01,35,795/-. The defendants further informed the plaintiff

that a hearing was scheduled before MahaRERA; Authority

under the Real Estate (Regulation and Development) Act, 2016

("the RERA Act, 2016"), on 23rd February, 2022. Upon inquiry, it

transpired that the defendants have made an application for de-

registration of Turf View Project bearing No.P51900003617. The

endeavour of the defendants to de-register the project with

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MahaRERA is actuated by a dishonest intention to defeat the

plaintiff's rights by altering the very status and nature of the

Turf View Project. The plaintiff asserts in order to bring the

subsequent developments on record and also seek reliefs against

the defendants from taking any steps to de-register the said Turf

View Project, amendment in the plaint is warranted. Hence,

these applications.

8. An affidavit-in-reply is filed on behalf of defendant nos.1, 2

and 4. The defendants contend that the plaintiffs have not

approached the Court with clean hands and have indulged in

forum shopping. Adverting to the writ petitions being Writ

Petition (L) No.8713 of 2022 and the connecting writ petitions

filed on behalf of the plaintiffs, wherein the plaintiffs had sought

to restrain MahaRERA from exercising jurisdiction with regard

to the application for de-registration of the Turf View Project,

which came to be eventually disposed of by order dated 29 th

March, 2022, the defendants contend that the plaintiffs have

resorted to the device of seeking amendment in the plaint to

incorporate reliefs, which are similar to the reliefs claimed in the

said writ petitions.

9. The defendants further contend that the plaintiff had in

fact participated in the proceedings before MAHARERA and after

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the application for de-registration was heard and reserved for

orders, the plaintiffs filed writ petitions in this Court. Those

writ petitions were disposed of with liberty to the defendants to

make a formal application for de-registration, and a decision by

MahaRERA thereon after affording sufficient opportunity to the

parties, including the plaintiffs. In this backdrop, since the

prayers sought by the plaintiffs by way of amendment clearly fall

within the province of the jurisdiction of the Authority under

the RERA Act, 2016, this Court will not have jurisdiction to

entertain or grant such prayers. In any event, the proposed

amendment completely changes the nature and character of the

suits. Hence, the amendment cannot be allowed.

10. I have heard Mr. Dhond, the learned Senior Counsel for

the plaintiffs in all suits, Mr. Chinoy, the learned Senior Counsel

for defendant nos.1 to 4, 6, 7 and 10 in IAL/3936/2022, Mr.

Madon, the learned Senior Counsel for defendant nos.1 to 4, 6,

7 and 10 in IAL/3937/2022, Mr. Jain, the learned Counsel for

defendant nos.1 to 4, 6, 7 and 10 in in IAL/4112/2022 and Mr.

Tamboly, the learned Counsel for defendant nos.1 to 4, 6, 7 and

10 in IAL/3941/2022.

11. Mr. Dhond, the learned Senior Counsel for the plaintiffs -

applicants, submitted that the fact that there have been

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developments in the intervening period is not contested. Nor is

it in serious dispute that those facts bear upon the controversy

in issue. At this nascent stage of the suit, where the parties are

yet to be heard on ad-interim reliefs, according to Mr. Dhond,

the resistance sought to be put-forth on behalf of the

defendants to the proposed amendment is rather inconceivable.

Mr. Dhond further submitted that in view of the well recognized

position in law that all amendments which are necessary for

determining the real question in controversy between the parties

shall be allowed, the applications for amendment deserve to be

allowed to advance the object of determination of all questions

in dispute once and for all and avoid multiplicity of the

proceedings. Mr. Dhond would urge that the contention on

behalf of the defendants that the proposed amendment would

change the nature and character of the suit is wholly

misconceived as the plaintiffs have already sought the prayers in

the plaint, to restrain the defendants from changing the status

of the Turf View Project from residential to commercial.

12. In contrast to this Mr. Chinoy, the learned Senior Counsel

for the defendants, stoutly submitted that the conduct of the

plaintiff in seeking the amendment deserves to be taken into

account. It was urged that when the plaintiff realised that the

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Division Bench was not inclined to entertain the petitions,

calling in question the jurisdiction of MAHARERA, the plaintiff

preferred these applications for amendment for self-same reliefs.

Mr. Chnoy would urge that the proposed amendment cannot be

allowed, especially the prayers, which bear upon the jurisdiction

of MahaRERA, for the singular reason that the Section 79 of the

Real Estate (Regulation and Development) Act, 2016, expressly

bars the jurisdiction of Civil Court from entertaining any suit or

proceeding in respect of any matter which the Authority or

Adjudication Officer or the Appellate Tribunal is empowered by

and/or under the said Act to determine. The proposed prayer of

the plaintiff that the defendants be restrained from taking any

steps to de-register the Turf View Project is in teeth of Section 79

of the RERA Act, 2016.

13. Mr. Madon, the learned Senior Counsel for the defendants,

took the Court through the proposed pleadings and prayers and

urged that all the prayers fall within the ambit of the

jurisdiction of MahaRERA. Inviting the attention of the Court to

the provisions contained in Section 36 of the RERA, Mr. Madon

would urge that the Authority is empowered to pass appropriate

interim orders. Mr. Madon also laid stress on the bona fide of

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the plaintiff in the context of the proceedings in the writ

petitions and the order passed therein.

14. Adopting the submission of Mr. Chinoy and Mr. Madon,

Mr. Jain, the learned counsel for the defendants, would urge

that the use of the expression "in respect of any matter, in

Section 79 of the RERA Act, 2016 is of wide import. The

jurisdiction of the Civil Court is excluded over all the matters,

which fall within the province of the jurisdiction of the

Authority.

15. To bolster up this submission Mr. Jain placed reliance on

the following observations of the Supreme Court in the case of

Renusagar Power Co. Ltd. vs. General Electric Company and

another1 :

"Expressions such as "arising out of" or "in respect of" or "in connection with " or "in relation to" or "in consequence of" or "concerning" or relating to " the contract are of the widest amplitude and content and include even questions as to the existence, validity and effect (scope) of the arbitration agreement."

16. Mr. Jain also placed reliance on a judgment of the

Supreme Court in the case of Imperia Structures Limited vs.

Anil Patni and another.2

1 (1984) 4 Supreme Court Cases 679.

2 (2020) 10 Supreme Court Cases 783.

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17. Mr. Dhond, the learned Counsel for the plaintiff, joined

the issue by canvassing a submission that the plaintiffs, by way

of proposed amendment, are seeking reliefs against the

defendants in personam. According to Mr. Dhond, there is a

distinction between calling in question the jurisdiction of the

Authority to entertain an application for de-registration and

seeking to restrain a party, who is under contractual obligation,

from proceeding with the application for de-registration. At

best, the proposed prayer is in the nature of an anti-suit

injunction and, thus, the bar under Section 79 does not come

into play.

18. I have given anxious consideration to the rival

submissions canvassed across the bar.

19. To begin with, it is necessary to note that the legal position

has crystalized to the effect that an application for amendment

in pleadings ought to receive a liberal consideration. The

overarching principle is, all amendments which are necessary

for determining the real question in controversy between the

parties should be allowed. The said principle flows from the

fundamental proposition that the Court should endeavour to

determine a lis on merits and procedure which is handmade

justice should not be allowed to score a march over substantive

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justice. Thus, it is said that all amendments which do not

cause injustice or prejudice to the adversary may be allowed.

However, if the amendment has the potentiality of causing

prejudice to the adversary in the sense that it has the effect of

divesting the adversary of a vested right or completely

substituting a new cause of action for the one already pleaded,

the amendment may not be allowed.

20. In the case of Revajeetu Builders and Developers vs.

Narayanaswamy and Sons,3 the Supreme Court, after an

elaborate analysis of the provisions of the Code and precedents,

culled out the factors to be taken into account while dealing

with an application for amendment. The observations in

paragraphs 63 and 64 are instructive and hence extracted

below:

"63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) hether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and

3 (2009) 10 SCC 84.

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(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application."

21. The aforesaid pronouncement was followed by the

Supreme Court, in the case of Rameshkumar Agarwal vs.

Rajmala Exports Private Limited and others,4 on which reliance

was placed by Mr. Dhond, the learned Senior Counsel for the

plaintiff,wherein the legal position was enunciated as under:

"21. It is clear that while deciding the application for amendment ordinarily the court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order 6 Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule, particularly in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations."

22. Mr. Dhond placed reliance on another judgment of the

Supreme Court in the case of Rajesh Kumar Aggarwal and

others vs. K. K. Modi and others.5 The observations in

paragraphs 15, 16 and 18 are material and hence extracted

below:

"15. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary

4 (2012) 5 Supreme Court Cases 337.

5 (2006) 4 Supreme Court Cases 385.

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for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.

16. Order VI Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.

......

18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court."

23. In the light of the aforesaid exposition of law, reverting to

the facts of the case, it is imperative to first consider the nature

of the claim of the plaintiffs. From the perusal of the averments

in the plaint, it become explicitly clear that the plaintiff has

approached the Court with a case that in the year 2007,

defendant no.1 had agreed to sale the flats in a building to be

constructed, "Turf View Project". Eventually, the project came to

be registered with MahaRERA in the year 2020. Defendant no.1,

however, subsequently decided to abandon the residential

project and convert it into a commercial project. The plaintiff

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asserts that the defendant offered to refund the consideration

parted with by the plaintiff along with interest thereon.

However, the plaintiff insisted for the performance of the

obligations under the letter of allotment and thus challenged the

letter of termination dated 29th January, 2022.

24. Evidently, when the suit was instituted, "Turf View" stood

registered as a residential project. In the month of February,

the defendants moved for de-registration of the Turf View as a

residential project. There is not much controversy over the

developments sought to be brought on record by way of

proposed amendment. The controversy essentially revolves

around the prayers which the plaintiff seeks to incorporate by

way of proposed amendment.

25. Relevant part of the Schedule of the proposed amendment

reads as under:

"3. Add after paragraph 62(vii) of the above plaint with the following:

"(viii) an order of injunction restraining defendant nos.1 to 12 and/or its agents and/or its representatives from taking any steps to de- register the said Truf View Project bearing No.P51900003617 from RERA or any other authorities."

(ix) An order of injunction restraining defendant no.2 and/or its agent and/or its representatives from taking any steps to construct commercial project on the said Turf View Project based on the alleged rights transferred/assigned by Defendant no.1 under Section 15 of Real Estate (Regulation and Development) Act, 2016."

4. Add the following prayer after prayer D of the plaint with the following:

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"D1 This Hon'ble Court be pleased to pass an order and decree directing the Defendant nos.1, 2 and 4 and/or its agents and/or its representatives to comply with their statutory obligations under MOFA and RERA."

5. Add the following prayer after prayer (M)(vii) of the above plaint with the following:

(viii) an order of injunction restraining defendant nos.1 to 12 and/or its agents and/or its representatives from taking any steps to de- register the said Truf View Project bearing No.P51900003617 from RERA or any other authorities."

(ix) An order of injunction restraining defendant no.2 and/ or its agent and/or its representatives from taking any steps to construct on the said Turf View Project based on the alleged rights transferred/assigned by defendant no.1 under Section 15 of Real Estate (Regulation and Development) Act, 2016."

26. As indicated above, the thrust of the resistance is

premised on the bar under Section 79 of the RERA Act, 2016.

"79. Bar of Jurisdiction:

No civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."

Section 79 appears to be broadly worded. The expression, "in

respect of any matter which the Authority or Adjudicating

Officer or Appellate Tribunal is empowered to determine", is of

wide amplitude. If a matter falls within the sphere of jurisdiction

vested in any of the Authorities under the RERA Act, 2016, the

jurisdiction of the Civil Court stands excluded. The test would

be whether the Authorities under the RERA Act, 2016 are

conferred with exclusive jurisdiction, over the matter in

question.

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27. Mr. Chinoy, the learned Senior Counsel for the defendants,

invited the attention of the Court to the provisions contained in

Section 15 of the RERA Act, 2016, wherein a promoter is

restrained from transferring or assigning his rights in the real

estate project to a third party without prior written approval of

the Authority, to bolster up the submission that the proposed

prayer of injunction restraining defendant no.2 from taking any

steps to construct on the Turf View Project based on the alleged

rights transferred/assigned by defendant no.1, clearly falls

within the province of jurisdiction of Authority. Since the grant

of the registration of the project is a matter clearly within the

jurisdiction of the Authority, the prayer restraining the

defendants from taking steps from de-registration is also a

matter over which the jurisdiction of the Civil Court is expressly

barred under Section 79 of the Act, urged Mr. Chinoy. It was

further submitted that language of Section 79 is peremptory

and, any matter, which the Authority is empowered by or under

the RERA Act, 2016, to determine, stands excluded from the

jurisdiction of the Civil Court.

28. The aforesaid submissions are required to be appreciated

in the light of the consequences which the proposed de-

registration of the project may entail. The fact that de-

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registration of the project manifests a clear refusal to perform

the contract cannot be lost sight of. This manifestation of

refusal, in such a situation, is in the nature of a party to the

contract disabling itself from performing the contract. Such

actual or threatened refusal to perform the contract furnishes a

cause of action for suit for specific performance. A plaintiff, in

such case, may legitimately claim a relief that the defendant

should not act in such a manner as to disable himself from

performing the contract.

29. From this standpoint, in my considered view, the plaintiffs

are justified in seeking a prayer that the defendants, shall not

erect such construction on the subject land of Turf View Project,

which has the effect of changing the status of the project, as

promised by the defendants. The submission on behalf of the

defendants, based on Section 15 of the RERA Act, does not

merit acceptance. The proviso to sub-section (1) Section 15

makes it explicitly clear that such transfer or assignment shall

not effect the allotment or sale of the apartments, plots or

buildings, as the case may be, in the real estate project made by

the erstwhile promoters. The priviso thus makes it clear that

even when real estate project is transferred with the prior

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written approval of the Authority, the obligation of the erstwhile

promoters are not effaced or discharged.

30. In the case of Imperia Structures Ltd. (supra), on which

reliance was placed by Mr. Jain, the learned Counsel for the

defendant nos.1 to 4, 6, 7 and 10, the Supreme Court had an

occasion to consider the availability of remedies before the other

forums, like a Consumer Forum, in the face of the bar under

Section 79 of the RERA. The Supreme Court expounded the

legal position, in the following words:

"24. Before we consider whether the provisions of the RERA Act have made any change in the legal position stated in the preceding paragraph,we may note that an allottee placed in circumstances similar to that of the Complainants, could have initiated following proceedings before the RERA Act came into force.

(A) If he satisfied the requirements of being a "consumer" under the CP Act, he could have initiated proceedings under the CP Act inaddition to normal civil remedies.

(B) However, if he did not fulfil the requirements of being a"consumer", he could initiate and avail only normal civil remedies.

(C) If the agreement with the developer or the builder provided for arbitration:-

(i) in cases covered under Clause 'B' hereinabove, he couldinitiate or could be called upon to invoke the remedies inarbitration.

(ii) in cases covered under Clause 'A' hereinabove, inaccordance with law laid down in Emaar MGF Ltd andanr. Vs. Aftab Singh, he could still choose to proceed under the CP Act.

......

26. It is, therefore, required to be considered whether the remedy so provided under the RERA Act to an allottee is the only and exclusive modality to raise a grievance and whether the provisions of the RERA Act bar consideration of the grievance of an allottee by other fora. .....

28. On plain reading of Section 79 of the RERA Act, an allottee described in category (B) stated in paragraph 22

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hereinabove, would stand barred from invoking the jurisdiction of a Civil Court. However,as regards the allottees who can be called "consumers" within the meaning of the CP Act, two questions would arise; a) whether the bar specified under Section 79 of the RERA Act would apply to proceedings initiated under the provisions of the CP Act; and b) whether there is anything inconsistent in the provisions of the CP Act with that of the RERA Act. ......

34. It is true that some special authorities are created under the RERA Act for the regulation and promotion of the real estate sector and the issues concerning a registered project are specifically entrusted to functionaries under the RERA Act. But for the present purposes, we must go by the purport of Section 18 of the RERA Act. Since it gives a right "without prejudice to any other remedy available', in effect, such other remedy is acknowledged and saved subject always to the applicability of Section 79.

35. At this stage, we may profitably refer to the decision in Pioneer Urban Land and Infrastructure Limited and another vs. Union of India and another, where a bench of three, where a bench of three Judges of this Court was called upon to consider the provisions of Insolvency and Bankruptcy Code, 2016, RERA Act and other legislations including the provisions of the CP Act. One of the conclusions arrived at by this Court was:-"100. RERA is to be read harmoniously with the Code, as amended by the Amendment Act. It is only in the event of conflict that the Code will prevail over RERA. Remedies that are given to allottees of flats/apartments are therefore concurrent remedies, such allottees of flats/apartments being in a position to avail of remedies under the Consumer Protection Act, 1986, RERA as well as the triggering of the Code.

36. We, therefore, reject the submissions advanced by the Appellant and answer the questions raised in paragraph 26 hereinabove against the Appellant."

(emphasis supplied)

31. The aforesaid pronouncement indicates that the remedies

available to the allottee under Section 18 of the RERA are

without prejudice to any other remedy available in law. To add

to this, Section 88 clarifies that the provisions of the RERA Act,

would be in addition to and not in derogation of the provisions

of any other law. A conjoint reading of these provisions would

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justify an inference that Section 18 of the RERA is not the sole

repository of the rights and remedies of an allottee where the

promoter threatens to abandon a project. The remedies therein

are without prejudice to any other remedy available in law. This

position is required to be borne in mind while appreciating the

bar of Section 79 to the jurisdiction of the Civil Court,

pressed into service on behalf of the defendants.

32. If considered through the aforesaid prism, the challenge to

the proposed amendment on the ground that the proposed

amendment has the effect of altering the very nature and

character of the suit is not worthy of acceptance. The proposed

amendment so far as it seeks to restrain the defendants from

developing a commercial project instead of residential project is

in the nature of elaboration of the extant pleadings and prayers

in the plaint. It would be suffice to note that in prayer Clause

(G) of the plaint, the plaintiff has sought a permanent

injunction against defendant nos.1 to 12 from altering the

nature of the Turf View Project from residential to commercial.

Therefore, I do not find any impediment in permitting the

plaintiff to amend the plaint so as to incorporate the averments

in paragraphs 1 and 2 and the proposed Clause (ix) of

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paragraph 3, and prayer Clause (ix) of paragraph 5, of the

Schedule of Amendment.

33. The averments proposed to be added by way of prayer

Clause (D1); in paragraph 4 of the Schedule of Amendment, is

also couched in general terms. It seeks the compliance of the

statutory obligations of the defendants under the Maharashtra

Ownership Flats (Regulation of the Promotion of Construction,

Sale, Management and Transfer) Act, 1963 ("the MOFA") and the

RERA Act, 2016. Hence the said amendment can be allowed.

34. The controversy boils down to the prayer seeking

injunction restraining defendant nos.1 to 12 from taking any

steps to de-register the Turf View Project bearing

No.P51900003617. Mr. Dhond, as indicated above, sought to

draw a distinction based on purported relief in personam,

against the defendants. An attempt was made to demonstrate

that the plaintiffs are not seeking to restrain the Authority from

exercising the jurisdiction vested in it under the RERA Act,

2016. I am afraid to accede to this submission. The distinction

sought to be made by Mr. Dhond appears to be artificial in

nature. The plaintiffs are endeavouring to bring about the same

result of persuading the Civil Court to delve into the aspect of

registration and/or de-registration of a real estate project, of

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which the Civil Court's jurisdiction stands expressly barred

under Section 79 of the RERA Act, 2016, in an indirect manner.

35. The fact that the Division Bench declined to entertain the

writ petitions challenging the jurisdiction of the MahaRERA to

entertain the application for de-registration and in fact directed

the Authority to decide the said issue after providing an effective

opportunity of hearing to all concerned, including plaintiffs,

cannot be lost sight of. Since the aspect of registration and de-

registration of the real estate project is a matter to be

determined by MahaRERA under the RERA Act, 2016, seeking a

restraint against the parties from proceedings with the said

matter also falls foul of the interdict contained in Section 79 of

the RERA Act. 2016. Thus, the plaintiffs cannot be permitted to

incorporate by way of amendment the proposed Clause (viii) in

paragraph 62 of the plaint (as proposed in paragraph 3 of the

Schedule of the Amendment), and the proposed prayer Clause

(viii) after prayer M (vii) of the plaint (as proposed in paragraph

5 of the Schedule of the Amendment).

36. The conspectus of the aforesaid consideration is that the

applications deserve to be partly allowed.

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37. Hence, the following order:

:ORDER:

(i) The applications stand partly allowed,

(ii) The plaintiffs are permitted to amend the plaint in

the respective suits, in accordance with the Schedule

of Amendment (Exhibit-A to the respective interim

applications), except the following portions:

(A) After paragraph 62(vii):

"(viii) an order of injunction restraining defendant

nos.1 to 12 and/or its agents and/or its

representatives from taking any steps to de- register

the said Truf View Project bearing No.P51900003617

from RERA or any other authorities."

(B) After prayer M(vii):

"(viii) an order of injunction restraining defendant

nos.1 to 12 and/or its agents and/or its

representatives from taking any steps to de-register

the said Truf View Project bearing No.P51900003617

from RERA or any other authorities."

(iii) Proposed prayer "N" be suitably corrected.

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(iv) Necessary amendment be carried out in the plaint

and copy of the amended plaint be served on the

defendants, within a week.

(v)    All applications disposed.

       No costs.

                                    [N. J. JAMADAR, J.]