The Maharashtra Real Estate Appellate Tribunal expounded that in case of delayed possession, the Promoter is obliged under Section 18 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as “RERA”) to pay interest if the Allottee does not withdraw from the project. The Tribunal enunciated that there is no such bar that Section 18 cannot apply after the date of possession is revised by the Promoter or even after receipt of the occupation certificate by the Promoter.
Further, it was ruled that the reliefs given to an Allottee under Section 18 cannot be said to be abandoned by the Allottee merely because the Allottee failed to object to the revised date of possession. The Allottee is neither required nor expected to record the acceptance for the revised date of possession without prejudice to his right to claim interest because this relief has been expressly and statutorily provided under the Act. It was expounded that the Allottee can claim interest unless expressly waived.
Brief Facts:
The present appeal has been preferred by the complainants (Allottee) against the order passed by the Learned Chairperson of MahaRERA as the reliefs were not granted as sought.
Brief Background:
The Appellant (Allotee) booked a flat in the project of the Respondent (Promoter) and subsequently, the parties executed a registered agreement. The possession was promised to be delivered on or before December 2015.
In 2018, the Promoter called Allotees for handing over the possession, however without any just explanation demanded extra money on account of the increase in the carpet area. The Promoter did not allow the Allottee to even verify the carpet area.
The Allottee sent letters to Promoter for furnishing proof regarding the carpet area, however, the Promoter continued to ask for extra money. Hence, a complaint was preferred before the MahaRERA. An order was passed stating that the Promoter was not liable to pay interest to complainants on account of delay in handing over the possession.
Hence, the present appeal.
Contentions of the Appellant:
It was argued that the Promoter failed to discharge obligations as possession was not handed over by October 2017, as promised. Further, the possession was taken under protest on 21.02.2021 as Promoter did not allow verification of the carpet area.
It was contended that once the Promoter fails to hand over possession, Section 18 rights can be enforced as these are indefeasible rights. Moreover, these rights will not be defeated merely because the Allottee has taken possession during the pendency of an appeal or merely because the possession was offered after the due date of possession.
Contentions of the Respondent:
It was contended that the date of possession was changed after issuing letters to the Allottees and on account of force majeure reasons. Further, the Allottees were given the option to take a refund with interest. However, the Appellant continued with the project and hence, voluntarily agreed to the revised date of possession by not objecting.
Further, it was argued that the Appellant did not approach the Authority on December 2015 when possession dates were revised, no genuine party would wait for 4 years to object to the delay in possession.
Moreover, the Appellant even after revised dates of possession, continue to make payments and hence, Section 55 of the Indian Contract Act, 1872 would come into play where the Appellant can now not claim compensation for any loss.
Observations of the Tribunal:
It was noted that the claim of the Allottee was within the realm of Section 18 of RERA. Regarding the claim of interest, it was observed that under Section 18, the Promoter is obligated to hand over possession as per the date mentioned in the agreement for sale. The date specified there is sacrosanct and neither RERA nor Promoter can rewrite the same without the consent of the Allottee.
Hence, it was opined that this implies that Section 18 would not only operate when the possession is handed over within the specified date. Section 18 would be attracted when the possession is handed over beyond the specified date.
It was further expounded that in case of delayed possession, the Promoter is obliged under Section 18 to pay interest if the Allottee does not withdraw from the project.
The Tribunal enunciated that there is no such bar that Section 18 cannot apply after the date of possession is revised by the Promoter or even after receipt of the occupation certificate by the Promoter.
Concerning the contention of the Promoter that he gave an option to either refund or continue with the project, the Bench was of the view that such a choice was Hobson’s choice and is not recognized under any law.
Further, it was ruled that the reliefs given to an Allottee under Section 18 cannot be said to be abandoned by the Allottee merely because the Allottee failed to object to the revised date of possession. The Appellate Tribunal was of the view that the basic prerequisite for waiver is that it should be an intentional act with knowledge. The Allottee is neither required nor expected to record the acceptance for the revised date of possession without prejudice to his right to claim interest because this relief has been expressly and statutorily provided under the Act. It was expounded that the Allottee can claim interest unless expressly waived.
Regarding the increased price for the increased area, it was noted that the Allottee cannot refuse to pay such a cost especially when no other price than the agreed one as per the agreement was being charged for the increased area.
The decision of the Tribunal:
Based on the aforementioned findings, the Tribunal set aside the order passed by the Chairperson and accordingly, allowed the appeal.
Case Title: Ashley Neil Serrao v. Propel Developers Pvt. Ltd.
Coram: Shri Ram R. Jagtap (Member, J), S.S. Sandhu (Member, A)
Case No: Appeal No. AT0006000000052847
Advocate for Appellant: Advs. Mr. Kunal Maskar, Mr. Anil D’Souza
Advocate for Respondent: Advs. Mr. Chirag Kamdar, Mr. Abir Patel
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