In your last week’s “Consumer Connect” column you have mentioned that shifting of position is not permitted once you file a complaint in MahaRERA. I have filed a complaint in MahaRERA against a builder asking for withdrawal from the project because of a long delay in giving possession. I have therefore asked for a refund with interest and compensation. The matter has now been referred to MahaRERA Conciliation. During the Conciliation hearing the builder has offered to give immediate possession in a different building constructed by him. The terms on which he is offering me the possession is acceptable to me. To compensate for the delay, the Conciliators have persuaded the builder to offer me a free covered car parking. The builder is agreeable to this proposal from the Conciliator. Since this proposed settlement would be something which I had not prayed for, and in a way shifting my original position of claiming refund and now accepting the possession and that too in some other building, will such settlement be valid? — Rajendra Ghorpade, Borivali
You have raised a good point in connection with my last week’s answer to the Query where the Complainant kept on shifting his position / the prayers in original complaint and in Review Petition and then before the Appellate Tribunal. He did so without following a due procedure in law. His original prayer for restraining the developer from collecting allegedly extra charges kept on changing without proper amendments and hence was infructuous and not permissible in law. Now coming to your case, I find that you are before MahaRERA Conciliation Forum.
You have prayed in your Complaint for cancellation of the booking and claiming refund with interest and compensation. Now this complaint has been referred to MahaRERA Conciliation Forum. During the Conciliation hearing, there is a proposal that the developer would give you a flat in a different building which is ready for occupation. To compensate for the losses you have suffered on account of delay, the Developer has been persuaded by the Conciliators to give you one covered Car Parking free of charge which seems to be acceptable to you. If these terms of settlement are acceptable to you and the Developer, this will be a perfectly valid settlement and will not be open to question on the grounds of shifting your original position or original prayer before MahaRERA.
In fact, that is the beauty of any Conciliation under MahaRERA or any Mediation proceedings anywhere else. Conciliation and Mediation are duly recognized forms of Alternate Dispute Resolution (ADR) Mechanism. The beauty of Conciliation or Mediation is that it allows multiple alternatives or options of dispute resolution. It is a very flexible and litigant-friendly, partycentric process. In any traditional court, the dispute resolution is expected strictly in accordance with law and as per the laid down procedure.
The Courts are expected to adjudicate the dispute and give Order/Judgement keeping in mind the prayers in the Complaint. Conciliation / Mediation allows the Conciliators /Mediators and also the parties to explore various options /proposals to resolve the disputes. In such exploration, Conciliators / Mediators often suggest some out of box solutions, which are permissible. As it has emerged in your case, you were seeking a refund with interest and compensation. The Developer seems to have difficulty in paying you the refund, interest & compensation. But he could offer you an alternate ready possession flat in the same project, although in a different building.
So he saved the refund payout. You are getting ready possession which addresses your concern for delay. To further compensate, the Conciliators have persuaded your developer to give you one covered car parking free, which takes care of your compensation. It seems that both you and the Developer are agreeable to these terms of settlement proposed by the MahaRERA Conciliators. It’s a Win - Win for Buyer & Builder. Such a settlement will be perfectly valid. In fact, law encourages such settlements through Conciliation & Mediation. And it is for these reasons that MahaRERA is referring its long pending cases for Conciliation under Sec 32 (g) of RERA Act.
In fact, I would suggest that aggrieved homebuyers should first file a complaint with a request for voluntary Conciliation, for which the fee is only Rs 1000/- as against Rs 5000/- for normal complaint before MahaRERA. Matters before the Conciliation Bench normally get resolved within two to three months. If the Conciliation fails, the homebuyer has the option of filing the formal complaint. So it is advisable to first try for Conciliation before Litigation.
(Advocate Shirish V Deshpande is chairman, Mumbai Grahak Panchayat. Queries can be sent to him on email: shirish50@yahoo.com)
