Case Title: Vivek Saxena & Ors. vs. ERA Realtors Pvt. Ltd. & Ors. (CC/21/172) and Neeraj Saxena & Anr. vs. ERA Realtors Pvt. Ltd. & Ors. (CC/21/171)
Before: Hon’ble Mr. Mukesh V. Sharma (Presiding Member) & Hon’ble Ms. Poonam V. Maharshi (Member), Maharashtra State Consumer Disputes Redressal Commission, Mumbai.
Advocate for Complainants: Sulaiman Bhimani A/W Adv Sharon Fernandez of The Law Suits
The Maharashtra State Consumer Disputes Redressal Commission (SCDRC), in a significant order protecting homebuyers’ rights, has directed ERA Realtors and Omkar Realtors & Developers to hand over possession of flats in the “Omkar Alta Monte” project in Malad. The commission ordered the developers to pay 8% interest on the entire amounts paid by two home-buying families since 2018-2019 for the inordinate delay in possession.
Crucially, in a ruling with wide implications for real estate law and marketing, the Commission also held ICICI Home Finance Company Ltd. (Opposite Party No. 3) jointly and severally liable for paying compensation and litigation costs. The order found that its role as a “marketing partner” sending promotional emails amounted to a “misleading advertisement” under the Consumer Protection Act.
The complaints were filed by the Saxena families, who had booked adjacent flats (No. 1102 and 1103) in the Omkar Alta Monte, Malad (East) project. They had paid nearly 80% of the total consideration—₹1.42 crore and ₹1.44 crore, respectively —but the developers failed to execute a registered Agreement for Sale or deliver possession by the promised 2018 deadline.
Commission Slams ‘Misleading Ads’ and Fake Force Majeure Claims
The developers (Opposite Parties 1 & 2) argued that the delay was due to force majeure conditions, including environmental clearance delays and the COVID-19 pandemic.
The Commission, accepting the strong arguments put forth by Advocate Sulaiman Bhimani for the complainants, rejected these contentions. The order decisively states that since the promised possession date was December 2018, the developers were already in default before the pandemic and thus could not “take the shield of COVID crisis” to justify the delayed possession.
The Commission upheld homebuyer rights by relying on landmark judgments like M/s Imperia Structures Ltd. vs. Anil Patni (Supreme Court) and Neelkamal Realtors (Bombay High Court). It affirmed that a developer’s extension of their MahaRERA registration deadline does not automatically change the contractual possession date promised to the buyer. The original agreement remains binding.
Landmark Finding: ICICI Home Finance Held Liable as Marketing Agent
In a significant legal finding for consumer protection law, the Commission held ICICI Home Finance Company Ltd. liable despite its claims of having no “privity of contract”. ICICI HFC argued it was merely a marketing partner and its emails contained a disclaimer.
The Commission firmly rejected this, stating that a marketing entity “cannot absolve itself of responsibility merely by issuing a disclaimer, when the promotional material forms the basis of a consumer’s decision to purchase”. The Commission found that these promotional emails induced the homebuyers and constituted a “misleading advertisement” under the Consumer Protection Act, making ICICI HFC a necessary and liable party.
Also read Omkar Alta Monte Delay: Maha Consumer Court Orders Possession & 8% Interest, Rejects COVID & RERA Excuses
The Final Order: Justice for Homebuyers
The State Commission partly allowed the complaints, delivering a victory for the homebuyers. It directed ERA Realtors and Omkar Realtors to:
- Execute Registered Agreements and hand over possession of the flats with the Occupancy Certificate and all amenities within two months.
- Pay simple interest at 8% per annum as delayed possession compensation on the full amounts paid (₹1,42,25,627 and ₹1,44,83,085) from 2018/2019 until the date of actual possession.
Furthermore, in a major relief for the consumers, the Commission directed all three Opposite Parties—ERA Realtors, Omkar Realtors, and ICICI Home Finance—to jointly and severally pay ₹1,00,000 as compensation for mental agony and ₹25,000 as litigation costs in each case.
Read and download the full order: Click Here Neeraj Saxena Vivek Saxena
For more legal insights, visit: www.thelawsuits.in
Published in public interest by: Adv. Sulaiman Bhimani Citizens Justice Forum | The Law Suits 413, Golden Chambers, Opp. Tanishq Showroom, Near Lower Oshiwara Metro Station, Andheri West, Mumbai – 400053 +91-8928372392 | adv.bhimani@gmail.com
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