The single judge bench of Justice Mahesh Pathak of the Maharashtra Real Estate Regulatory, Authority, Mumbai in the case of Nikhil Mane V. Vinodkumar Muktinath Sharma held that the failure of the promoter to handover possession of the flat to the allottee on the agreed date of possession mentioned in the agreements for sale, the allottee has two choices either to withdraw from the project or to continue in the project.
BRIEF FACTS OF THE CASE
The factual matrix of the case is that the complaint was filed seeking directions from MahaRERA to the respondent to refund the entire amount paid by him along with interest
and compensation as per the provisions of section 18 of the Real Estate (Regulation & Development) Act, 2016 (hereinafter referred to as ‘RERA’) in respect of booking of a flat in
the respondent’s registered project known as “Willows Twin Tower”.
The learned counsel for the complainant stated that according to the terms of the purchase agreement, he gave the respondent the full purchase price in addition to service tax, VAT, registration fees, stamp duties, and other fees. He filed this complaint with MahaRERAB because the respondent had not yet given him possession of the said flat with an occupation certificate, despite numerous follow-ups. It was further stated that the respondent has done construction beyond the approved plans and it created various complications and obstructions for getting an occupation certificate from the competent authority also the quality of work which was done by the respondent is also not good and the person who got the possession has also filed the complaint regarding the quality of the work. The development rights of the project were transferred from respondent no. 1 to respondent no. 2, now, respondent no. 2 is liable to refund the entire amount paid by him for the said flat along with interest and compensation of Rs. 5,00,000/-. Further, the complainant relied upon the judgment titled Swanand Balwankar Vs Vinod Sharma and Ors.
The learned counsel appearing on behalf of the respondent has contended that the project was completed in a time-bound manner. However, it could not procure the occupancy certificate due to demonetization, commencement of RERA, GST and market crash. Respondent no. 2 contended that initially, respondent no. 1 was building the project after
obtaining NA permission from the Collector for the project land and receiving approval for the project's plan from the town planning authority. The respondent no. 1, however, failed to complete the project and to andover the possession and hence due to financial constraint the respondent no. 1 decided to sell this project in its favour.
COURT’S OBSERVATION
The hon’ble court held that under section 18 of the RERA clearly provides that on failure of the promoter to handover possession of the flat to the allottee on the agreed date of
possession mentioned in the agreements for sale, the allottee has two choices either to withdraw from the project or to continue in the project. If the allottee intends to withdraw
from the project, the promoter on demand of the allottee is liable to refund the entire amount paid by the allottee along with interest and compensation as prescribed under RERA. If the allottee is willing to continue in the project, in that event, the promoter is liable to pay interest for the delayed possession.In view of the aforesaid explicit provision of section 18 of the RERA, in the present case, the complainant has decided to withdraw from the project. Hence, he is entitled to seek entire amount paid by him towards the consideration amount along with interest as prescribed under RERA and the relevant Rules made thereunder.
In view of the present legal position, it shows that the respondent no.2 is now liable for violation of section 18 of the RERA by the respondent no. 1 (erstwhile promoter). In addition to this, the MahaRERA has also noticed that, validity of the project is lapsed on 31/07/2022 and till date the respondent no. 2 promoter has not sought any extension nor it has uploaded the Form 4 or Occupancy/Completion certificate. It shows that the project is still incomplete. The promoter of such project is liable to seek extension from MahaRERA.
CASE NAME- Nikhil Mane V. Vinodkumar Muktinath Sharma
CITATION- Complaint No. CC005000000011883
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