Sumant M. Kolhe JUDGMENT
Sumant M. Kolhe, Member (J)
Nature of Appeal
1. Appellant-allottee has challenged the final order dated 03.05.2018 passed by Ld. Member and Adjudicating Officer of MahaRERA Authority in complaint No. CC006000000012373 whereby the complaint was dismissed for the reason that Section 18(1)(a) of RERA Act, 2016 is not attracted on account of receiving the possession by the Allottee.
Status of parties and other litigation
2. Allottee is the complainant. Promoter is the Respondent. I will refer the parties as per their status as allottee and promoter. Complaints No. CC006000000012373 and complaint No CC006000000023296 were filed by two allottees against the present promoter for claiming interest for every month of delay in handing over the possession as per Section 18 sub-section (1) of RERA Act, 2016.
Complaint No. CC006000000012373 was filed by the present allottee Complaint No. CC006000000023296 was filed by another allottee. Both the complaints are dismissed by MahaRERA Authority by common order. Present allottee has challenged the said order by preferring this appeal Another allottee has not filed the appeal. So. I will refer the present appellant as allottee in this matter.
Case of Allottee
3. Promoter launched the project namely Emerald Isle at Powai Estate. Saki Vihar Road, Powai. Mumbai Allottee had booked the flat No. 306 admeasuring 635.51 sq.ft. situated on 3rd floor in Tower 4(T4), of the said project. Promoter agreed to sale the said flat for consideration of Rs. 1,70,02085/- (Rs. One Crore Seventy Lakhs Two Thousand and Eighty Five) Accordingly registered agreement for sale was executed between the parties on 12.09.2016 Promoter agreed to hand over the possession of the flat on or before October, 2016. Allottee had paid the price as per agreed terms in an agreement for sale. Promoter failed to hand over the possession of the flat on or before October, 2016 Possession of the flat was given to the allottee belatedly on 05.12.2017. There is a delay of 15 months in handing over the possession of the flat to the allottee on the part of promoter. So. allottee filed complaint for recovery of interest on period of delayed possession under Section 18(1)(a) of RERA Act 2016 against the promoter.
Case of Promoter
4. Promoter restated the complaint and challenged it's maintainability by contending that Allottee has already received the possession and once allottee has taken the possession. Section 18 (1)(a) of RERA Act, 2016 is not attracted and the complaint is not maintainable. It is also contended that allottee is not entitled for interest on period of delayed possession and compensation Nature of inquiry, procedure and decision of complaint by Ld.
Adjudicating Officer
5. After hearing both the sides, the Ld Member and Adjudicating Officer framed the issue as to whether the complaint filed by the allottee for claiming interest on the delayed period after getting the possession of the flat is maintainable under Section 18 of the Act The Ld. Member and Adjudicating Officer MahaRERA observed that Section 18 of RERA Act, 2016 makes it clear that only when the promoter fails to complete or is unable to give possession of the fiat, then allottee is entitled to claim interest for every month of delay. According to Ld. Member and Adjudicating Officer MahaRERA simple tense is used by the legislature by enacting this provision and it indicates that right to claim interest continues so long as construction is incomplete and delay in handing over the possession lasts, and once the construction is complete or the possession is given as the case may be then Section 18 sub-section (1)(a) ceases to operate. So, the Ld. Member and Adjudicating Officer MahaRERA dismissed the complaint on the ground that Section 18(1)(a) of RERA Act, 201 is not attracted
Challenge to decision
6. Feeling aggrieved by the order of the Ld. Member and Adjudicating Officer passed on 03.05.2018 in complaint No. 23296, allottee had challenged property, correctness and legality of the said order in this Appeal
Points for determination
7. Heard both sides on factual as well as legal aspect of this matter at length. Perused the provision of Section 13 of RERA Act, 2016 Read the case laws submitted on record. Perused the impugned order which is challenged in this Appeal. Considering rival contentions regarding appropriate interpretation of Section 19(1)(a) of RERA Act, 2016, the following points arise for my determination.
POINTS
i) Whether the impugned order is just, proper and legal?
ii) Whether the complaint No. 23296 is maintainable under Section 18(1)(a) of RERA Act, 2016?
iii) Whether allottee is entitled for recovery of interest for period of delayed possession and compensation?
iv) What Order?
My findings on the above points for the reasons stated below are as under:
FINDING
i) Negative
ii) Affirmative.
iii) Partly affirmative for recovery of interest for Six months only.
iv) As per final order.
REASONS:
Point No. i to iv:
Admitted Material Facts
8. Registered agreement for sale between allottee and promoter took place on 12.09.2016. As per clause 4 of the said agreement, promoter agreed to sale and allottee agreed to purchase the flat bearing No. 306 admeasuring 635.51 sq. ft. situated at Powai Estate. Saki Vihar Road, Powai. Mumbai. Agreed price of the flat was Rs. 1,70,02085/-. Promoter agreed to deliver possession of the flat to the allottee on or before October 2016 as per clause 23(a) of registered agreement. Admittedly, there was a delay in handing over the possession of the flat. Promoter offered and allottee received the possession of the flat on 05.12.2017 after receiving occupancy certificate. Thus, there is a delay of 15 months in handing over the possession of the flat to the allottee
Decision of Complaint
9. The Ld Member and Adjudicating officer dismissed the complaint mainly on ground that allottee already got possession of flat from promoter and thereafter, allottee cannot claim interest for delayed possession and complaint filed by allottee under Section (1)(a) of RERA Act, 2016 is not maintainable.
Argument of Ld. Counsel for Allottee
10. Ld. counsel for Allottee challenged legality and correctness of impugned order. He argued that Ld. Adjudicating Officer made wrong and incorrect interpretation of Section 18(1)(a) of RERA Act, 2016 According to him. Ld. Adjudicating officer committed error by rejecting the complaint simply on the ground that possession is received by Allottee According to him, once possession is delayed, right to claim interest is accrued to the allottee and allottee never waived or relinquished such accrued right to claim interest and merely taking possession of flat after due date by making balanced price payment will not extinguish accrued right of allottees to claim interest on delayed possession by filing complaint. He argued that true meaning and spirit behind Section 18(1)(a) of RERA Act, 2016 is not properly and correctly appreciated by Ld. Adjudicating Officer. So, he requested to set aside impugned order and allow the complaint of the allottee.
Argument of Ld. counsel of Promoter
11. Ld. counsel for Promoter argued the matter thoroughly by referring many aspects of the dispute including object of RERA Act, 2016. Sprit behind Sector 18(1)(a) of RERA Act, 2016, concept of waiver, case laws on such points and strongly supported the impugned order. The main bone of argument of Ld. counsel for promoter was that the plane and simple reading of opening sentence of Section 16(1)(a) of RERA Act, 2016 shows that once possession of flat is given by promoter and taken by allottee, then thereafter opening sentence of Section 18(1)(a) of RERA Act does not apply. The opening sentence of Section 18(1)(a) that if promoter fails to complete or is unable to give possession in accordance with clause (1)(a) or for reasons stated in clause (1)(b) then right to claim interest for delayed possession cannot be claimed as it is not available to allottee. According to him, once possession is taken at any stage i.e. it is either before or after due date then right to claim interest on delayed possession does not survive and such right cannot be exercised because mandatory condition of status of project as incomplete and inability of the promoter to give possession are not in existence and Section 18(1)(a) of RERA Act, 2016 is not attracted He strongly argued that proviso to Section 18(1)(a) is about interest on delayed possession and it must be read together with opening clause of Section 18(1) and once opening clause itself is not attracted, the proviso to such clause cannot be alone attracted. He relied on case law reported in MANU/SC/0505/1975 : (1976) 1 S.C.C. 128 to support his submission. Alternatively, he argued that even if it is assumed that such right to claim interest remained with allottee even after taking possession, according to him. allottee has waived that right as allottee paid balance price and took possession without any protest. He submitted that allottee must have asked for interest on delayed possession at the time of taking possession and at time of paying balance price.
Section 18 of RERA Act 2016
12. On the above backdrop let us turn to Section 18 of RERA Act, 2016 which reads as under.-
Section 18 : Return of amount and compensation.
(1) if the promoter fails to complete or is unable to give possession of an apartment plot or building-
(a) in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or
(b) Due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason, he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot, building. as the case may be, with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act.
Provided that where an allottee does not intend to withdraw from the project he shall be paid, by the promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be prescribed.
(2) The promoter shall compensate the allottees in case of any loss caused to him due to detective title of the land, on which the project is being developed or has been developed in the manner as provided under this Act, and the claim for compensation under this sub-section shall not be barred by limitation provided under any law for the time being in force.
(3) If the promoter fails to discharge any other obligations imposed on him under this Act or the rules or regulations made thereunder or in accordance with the terms and conditions of the agreement for sale, he shaft to liable to pay such compensation to the allottees. in the matter as provided under this Act.
Analysis
13. After carefully reading the above provision, it is revealed that it consists of three different clauses. At first let us see clause No. (1). If the promoter fails to complete or is unable to give possession of an apartment, plot or building in accordance with the terms of agreement for sale or as the case may be duly completed by the dates specified therein or due to discontinuance of his business on account of suspension or revocation of registration under this Act or for any other reason, then it is the obligation on promoter to return the amount received from allottee with interest at such a rate as may be prescribed including the compensation, in case allottee wishes to withdraw from the project. Now, proviso says that if allottee does not intend to withdraw from the project then, promoter shall pay interest for every month of delay till the handing over of possession of the flat to the allottee at a such rate as may be prescribed.
14. Thus, whenever promoter fails to complete or is unable to give possession in accordance of terms of an agreement or by the date duly specified in an agreement, allottee is having two options. First option is Allottee may choose to withdraw from the project then promoter shall return the amount received from the allottee along with interest and compensation. As per second option if allottee does not intend to withdraw from the project then, promoter shall pay interest for every month of delay till handing over the possession to the allottee, at such rate as may be prescribed.
15. Now clause (1) is unable to give possession of the flat consists of opening sentence that "If the promoter fails or fails to complete'. This opening sentence is to be read with clause (a) and (b). Clause (a) and (b) will throw light and gives further explanation as to reasons for such situation and exact condition required to be in existence for attracting opening sentence of Section 18(1). As per clause (a), situation may arise when failure of promoter to deliver possession in accordance of terms and conditions of agreement for sale or duly completed by the date specified therein. Thus, if date of delivery as mentioned in agreement is not complied and terms of conditions of agreement For sale are not complied then the first opening sentence stands attracted and applied. Clause (b) is about the reason of occurrence of such situation and that may be revocation or suspension of project or any other reason.
16. In the present matter, promoter had agreed to deliver the possession on or before October, 2016 as seen from clause 23(a) of registered agreement for sale. Admittedly, possession was received by the allottee on 05.12.2017 with occupation certificate. So, clause 1(a) he is duly satisfied in the present matter because promoter was unable to give possession of the flat by the date specified in an agreement i.e. October, 2016. We can read opening sentence of Section 13 along with clause (a) and (b) I repeat that the application or non-application of opening sentence and situation explained by opening sentence can be ascertained finally and correctly and legally only if further clause (a) and (b) are also read. So opening sentence of Section 18 will have be read with clause (a) and (b) and then only we can further move towards two options of allottee whether to withdraw or to continue with project. So, ratio of case law (1976) I S.C.C. 128 as referred by Ld. counsel of respondent can be made applicable to this matter by reading not only proviso with opening sentence but also the clause (a) and (b). Otherwise opening sentence will remain meaningless and incomplete. Now the case of allottee fails under option second as allottee decided to continue with the project. So, as per proviso of Section 18. interest is to be calculated for every month of delay till the possession is handed over to the allottee In the present matter delay started from October, 2016 and it ends on 05.12.2017 when the possession is given to the allottee. So, period of delayed possession of the flat is 15 months. I would like to point out that period of delayed possession is required to be ascertain from the date on which possession was agreed to be given till the date on which the possession was actually given.
17. Thus, if allottee withdraws from project, then for getting return amount with interest and compensation as per first option, the date of withdrawal and previous different dates on which amount is paid is material to calculate the interest including compensation. If allottee continue with project as per second option, the interest depends upon period of delayed possession for which agreed due date and thereafter, the date of handing over possession are considered. Naturally the date of handing over possession is either prior to the agreed due date or as per agreed due date or may be belated date. If possession is given on due date or before the due date, there is no question of attracting this Section 18 of RERA Act 2016. If possession is given after due date is over. there is delay in handing over possession under Section 18(1)(a) and Section 18(1)(a) attracts to this situation for calculating the interest on the period of delayed possession Thus, the moment due date for handing over possession is over the claim of interest for delay of every month is accrued to the allottee as per Section 11 of RERA Act, 2016. Right to claim interest is statutory right once it is accursed it lasts till the possession is handed over. Moreover. once delay is caused in handing over possession, it is continuous cause of action to get possession and consequently interest on period of delayed possession.
18. Provisions of RERA Act, 2015 are made applicable with effect from 01.05.2017. All the incomplete projects on the said date were required to be registered with MahaRERA as per Section 3 of RERA Act. 2015. Moreover, functions, duties and obligations of promoters and rights and duties of allottees are mentioned separately under Chapter 3 and 4 under RERA Act, 2016 are attracted and promoter and allottees are accordingly governed by those rights, duties and functions Section 18 falls under Chapter 3 of RERA Act, 2016. Obligation is on promoter and it is his duty to return amount along with interest and compensation to the allottee on account of non-competition of the project or inability to give possession as per agreed date specified in agreement or as per the terms and conditions of the agreement, in case allottee withdraws from the project. It is further obligation and duty of the promoter to pay the interest for the period of delayed possession.
Necessity of Enactment of RERA Act 2016
19. I would like to point out that to protect the interest of the promoter is one of the object of RERA Act, 2016. To bring transparency and efficiency in the transaction of Real Estate Sector and to bring symmetry of information between allottee and promoter are also objects of RERA Act 2016 While enacting the provisions under RERA Act, 2016 for safeguarding the interest of the Allottee, it was transpired that the agreements and the conditions of agreements in Real Estate Sector were dominated by the promoters and it was also one of consideration before legislature white enacting such provision. A simple example can be cited with the help of copy of agreement for sale in the present matter. It is the duty of the allottee to pay the price of flat as per schedule of payment agreed between the parties as per registered agreement for sale. If allottee commits breach or makes delay in payment of such instalments as per schedule, it is specifically written that allottee shall pay interest at the rate of 1.5% per month to the promoter for breach of schedule of payment of price. On the contrary if we see clause No. 23(c) of an agreement it is revealed that the promoter shall be liable to pay simple interest at the rate of 9% per annum to the allottee in case of delay in handing over the possession and in case allottee demanded the return of amount paid to the promoter by withdrawing himself from the project. In fact promoter and allottee are the two pillars of Real Estate Sector. They should not have unequal status in executing the transaction between them pertaining to Real Estate Sector. So, in spite of existence of MOFA in past legislature thought it necessary in the interest of public at large to enact landmark law governing Real Estate Sector and accordingly. RERA Act 2016 came into force. It is true that object of safeguarding the interest of allottee is to be achieved as per provision of Section 18(1)(a) along with other provisions mentioned in the RERA Act, 2016. Whenever, interpretation of any provisions is to be made, it is always necessary to make interpretation of the provision in such manner that it will help in achieving the object of the Act and as well as intention of the legislation in enacting that provision in such Act. After all RERA Act, 2016 is enacted for regulating the Real Estate Sector and also for developing the said sector. There was no separate statutory provision for regulation of Real Estate Sector before enactment of RERA Act, 2016 though disputes were dealt with by consumer forum or civil courts Consumer forum was proved to be preventive and not curative for disputes of Real Estate Sector it cannot be ignored that Real Estate Sector should be regulated and simultaneously it should be developed. Both the activities should go simultaneously. There should not be regulation to such an extent that the development is stopped and there should not be only development which is not at all regulated. Unless the members of Society make demand for them of their own homes, promoter will not get opportunity to launch the project by making construction of homes to meet out such demands. Similarly, the promoter does not come forward by launching the project of homes then, the demand of our own home on the part of members of Society may not be fulfilled. However, promoter also wants customers to purchase the units in project. Thus, promoter and allottee are dependent on each other and expected to help for the regularization and development of Real Estate Sector by striking balance between their rights. duties and obligations by implementing RERA Act, 2016 to achieve objects of said Act. Whenever, interest of the allottee is protected to achieve the object, it is necessary to strike the balance of it with duties and obligations of the promoter. In landmark case law of Neelkamal Realtors Pvt. Ltd. Vs. Union in Writ Petition No. 2737/2017 decided by Hon'ble Bombay High Court on 06.12.2017 their Lordships have made following observations while upholding constitutional legality and validity of the said Act
It is social and beneficiary legislation
It is enacted to regularize the sector by establishing RERA Authority.
It is enacted in the interest of public.
To protect interest of allottee and to bring transparency, efficiency an transaction is object of this Act
RERA Act does not re-write contract between parties Balance is to be strike down between Allottee and Promoter.
20. According to Ld. counsel of the Promoter, principle of Waiver applies here and Allottee has waived his right to claim interest and he cannot ask for it after taking possession without protest.
21. Considering the above discussion. I am of the opinion that Section 18(1)(a) is attracted to the present matter wherein due date of October, 2016 is admittedly over and possession is handed over belatedly after 15 months on 05.12.2017. I reiterate that allottees who have accepted the possession after due date is over cannot be deprived of claiming their right to recover the interest on period of delayed possession as per Section 18(1)(a) of RERA Act, 2016 and moreover, determination of such issue will depend upon the facts and circumstances of each case.
Point of Waiver by Allottee
22. The Ld. advocate for the respondent strongly submitted that before receiving the possession by the allottee at belated date. allottee never raised any objection and never claimed interest for delayed possession in view of Section 18(1)(a) of RERA Act, 2016 expressly and impliedly at the time paying the balance instalments of price and at the time of taking the possession. Moreover, allottee accepted the possession without any protest He relied on case law reported in MANU/SC/0699/2017 : (2017) 8 Supreme Court Cases, 237, Kanchan Udyog Ltd. Vs. United Sprit Ltd., wherein, Hon'ble Apex Court has laid down as under:-
23. Waiver by conduct was considered in P. Dasa Muni Reddy v. P. Appa Rao. observing as follows: (SCC p. 729, para 73)
"13. Abandonment of right is much more than mere waiver, acquiescence or laches,... Waiver is an intentional relinquishment of a known right or advantage, benefit claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right. The doctrine of waiver has been applied in cases where landlords claimed forfeiture of lease or tenancy because of breach of some condition in the contract of tenancy. The doctrine which the courts of law will recognize is a rule of judicial policy that a person will not be allowed to take inconsistent position to gain advantage through the aid of courts. Waiver sometimes partakes of the nature of an election. Waiver is consensual in nature, it implies a meeting of the minds. It is a matter of mutual intention The doctrine does not depend on misrepresentation. Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the other. The essential element of waiver is that there must he a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question."
24. Waiver could also be deduced from acquiescence, was considered in Woman Shriniwas Kini v. Radial Bhagwandas & Co. observing as follows (AIR p. 694, para 13)
13... Waiver is the abandoned of a right which normally everybody is at liberty to waive. A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to insist upon the right. It may be deduced from acquiescence or may be implied."
23. Ld. advocate for the respondent also relied on case law reported in (2009) 1 Supreme Court Cases 261. National Insurance Company Ltd. Boghara Polyfab Pvt. Ltd. wherein Hon'ble Apex Court has observed that
"27. "While discharge of contract by performance refers to fulfilment of the contract by performance of all the obligations in terms of the original contract, discharge by "accord and satisfaction" refers to the contract being discharged by reason of performance of certain substituted obligations. The agreement by which the original obligation is discharged is the accord, and the discharge by the same process which created it, that is. by mutual agreement. A contract may be discharged by the parties to the original contract either by entering into a new contract in substitution of the original contract; or by acceptance of performance of modified obligations in lieu of the obligations stipulated in the contract."
24. The Ld. advocate for the respondent submitted that in view of the principle of waiver as well as the concept to discharge of contract by performance, the allottee is not entitled to claim interest on the delayed period of possession as allottee paid final instalment of price while getting the possession and also received the possession without any protest and thereby waived his right of interest and also discharged the contract by his performance.
25. I would like to point out that waiver is an intentional relinquishment of a known right which the party would have enjoyed if not waived. Waiver can also be a voluntary surrender of a right Waiver signifies nothing more than an intention not to insist upon the right. In the present matter, let us see whether pleadings of the parties read together with documents on record and interpretation of Section 18(a) for claiming interest on period of delayed possession are sufficient to satisfy that the allottee had voluntary surrendered his right to claim interest by accepting the possession without protest and by paying the last instalment of the price. I would like to refer correspondence between promoter and allottee through E-mail between the period June to August, 2017. Copies of that correspondence are produced on record. E-mail issued on 01.06.2017 by allottee to the promoter clearly shows that allottee had demanded complete possession and the compensation for financial loss for the delay in possession. Promoter replied the said mail and mentioned some of the grounds for delay in handing over the possession and about the efforts promoter has taken for getting occupation certificate. It is also revealed from Mail dated 11.08.2017 sent by allottee to the promoter that request was made to the promoter to honour the terms of agreement and to provide the possession immediately along with the compensation for the delay. The promoter replied the said mail and again informed that the work of getting occupation certificate is in process and it is expected to get occupation certificate in few weeks. Thus, promoter has not denied the demand of interest as made by allottee through the correspondence of mail as referred above It appears that construction was completed and promoter was required to obtain occupation certificate and it took time to obtain O.C. and the delay was caused in handing over the possession with O.C. I would like to point out that as per Section 3 of RERA Act, 2016, the project that were ongoing on the date of commencement of RERA Act, 2016 and for which completion certificate was not issued, were required to be registered and promoter was under obligation to make registration of such incomplete project. The definition of completion certificate is given as per Section 2(q). It is certificate by whatever name called and issued by competent authority certifying that the project has been developed according to sanction plan, lay out plan and specifications as approved from the competent authority under the local law. So, projects were exempted from registration with Man a RERA only if completion certificate is already received by such project on the date of application of RERA Act, 2016. Occupation certificate is defined under Section 2(zf), It means the certificate by whatever name called issued by competent authority permitting occupation of any building as provided under local laws, which has provision for civic infrastructure such as water, sanitation and electricity. Unless the construction duly completed as per sanctioned plan and lay out plan and it is duly provided with civic infrastructure such as water, sanitation and electricity, occupation certificate is not issued by the competent authority. Thus, construction must be completed in all respect so as to occupy it for residence and it should be habitant. For registration of ongoing project on the date of application of RERA Act, 2016 with MahaRERA, requirement of occupation certificate is not mandatory as per Section 3 of RERA Act. 2016. Possession with O.C. is legal possession. Promoter is duty bound to hand over possession. Allottee cannot be forced to take the possession without occupancy certificate. In the present matter, promoter had issued mail to the allottee to take the possession for fit outs when O.C. was not received at all Allottee has rightly replied the mail that allottee wants complete possession in legal sense and promoter need not care about work of fit outs in the said flat.
Opinion about point of waiver
26. In view of above discussion I am of the opinion that allottee not only demanded the possession of the flat from time to time by pursuing the said matter with promoter but. also claimed the recovery of compensation and promoter had not denied such claim in reply to the mail of allottee. So it cannot be said that there was a waiver of the right to claim interest on the part of allottee in the present case. There is no authenticate document to show that allottee waived the right to claim interest on delayed possession or while making the last payment of the price at the time of getting the possession. Whenever, allottee has paid life earnings and hard money and some time also borrowed money as loan for purchasing his home, allottee will give first preference for getting the possession of the home and thereafter, allottee will pursue his right in respect of any monetary relief such as interest for which allottee is entitled on account of delay in handing over the possession. If we apply the principle of waiver on the basis of facts and circumstances of the case and in absence of any authenticate evidence of Allottee of waiver to that effect on record, the very object of enactment of RERA Act particularly Section 18 for awarding interest to the allottee for delayed period of possession will be frustrated. It is not expected that, once there is a delay allottee should take the possession at belated date and always waived his right to claim the interest an the period of delay in possession. In ordinary course of nature every allottee will prefer to accept the possession of the flat at first and thereafter, allottee will proceed to exercise his right for getting interest on the delayed period if any. So, the ratio laid down in above referred case laws are not attracted to the present matter and it cannot be said that allottee has waived The right to claim interest on delayed period of possession.
Exact Period of delayed possession
27. Now let us see what is the exact period of delayed possession. It appears that the period between due date of possession i.e. October, 2016 and the date of actually handing over possession with O.C. on 05.12.2017 is about 15 months. At this stage I would like to point out para 23(a) of registered agreement for sale regarding the due date of handing over the possession. There is specific mention in the said clause that the promoter shall be entitled for reasonable extension of a period of Six months over and above the date of handing over the possession. Moreover, there is a proviso in the said clause for further reasonable extension of time in handing over the possession beyond the above mentioned extended period of Six months. In view of above mentioned proviso to clause 23(a) of registered agreement for sale regarding due date, I am of the opinion that promoter is entitled for getting extension of Six months for handing over the possession from the agreed due date of October, 2016. I reiterate that while safeguarding the interest of the allottee we have to strike the balance while considering the obligations and duties of promoter in respect of such right of allottee. Since, proviso of extension of Six months of due date of October, 2016 is there in the registered agreement between the parties, promoter was justified for handing over the possession up to April, 2017. It appears that from the reply of E-mail sent by promoter to the allottee on 01.06.2017 that on account of Municipal Corporation Election in February, 2017, literally the work of issuing permissions and approvals was stopped on account of application of model of code of conduct of election and thus, there was delay of about three months in issuing approvals and permissions on the part of local authority. In the present matter when agreement for sale was registered in the month of September 2016 and promoter agreed to deliver possession in the month of October, 2016, it clearly shows that the project was definitely ready and completed as far as construction is concerned. In ordinary course of nature, no promoter will agree to hand over possession within one month unless the construction is completed. Thus, there was a delay in obtaining the O.C. from Municipal Corporation and there was all most stoppage of work of issuing approvals and permissions by Municipal Corporation for three months in the year 2017 on account of elections. So, the delay of about three months in stoppage of processing work of issuing O.C. is definitely beyond the control of promoter. So promoter is justified for further extension of three months in handing over the possession of the flat. Thus, extension of Six months as per proviso clause 23(a) of registered agreement for sale and extension of three months due to stoppage of work on account of election of Municipal Corporation in view of application of code of conduct rules of ejection I am of the opinion that promoter is entitled for exemption at least for nine months while determining the period of delayed possession in this case. So. the period of delay is of Six months in this matter.
28. The schedule of payment of price is given in annexure "J" in the Appeal papers. The statement of promoter regarding account of allottee filed at page 129 of Appeal papers shows that from the date of booking date till 01.11.2015 total amount of Rs. 1,65,88,062/- is paid by the allottee to the promoter and no amount is outstanding towards price of the flat from the allottee. Thus. interest for Six months delay should be paid by promoter on the amount he had received from time to time till date of handing over the possession i.e. 15.07.2015 to the allottee. As far as rate of interest is concerned it is as per Rule 18 of Maharashtra Real Estate (Regulation and Development) (Registration of Real Estate Projects, Registration of Real Estate Agents, Rates of Interest and Disclosures on Website Rules, 2017.
Conclusion
29. Thus, the impugned order passed by Ld. Adjudicating officer is not just, proper and legal. Complaint of Allottee for recovery of interest on delayed period even though claimed after taking possession is maintainable and Section 13 of RERA Act, 2016 is attracted to this matter and allottee is justified in getting interest on that part of delayed period of possession for which no reasonable justification is given by promoter So. I answer issue No. i) to iv) accordingly. In the result. I set aside impugned order and allow the appeal and pass the following order;
ORDER
i) Appeal No. 006000000010425 is allowed.
ii) The impugned order dated 03.05.2018 passed by Ld. Member and Adjudicating Officer of MahaRERA in Complaint No. CC0060000000023296 is set aside.
iii) The complaint No. CC0060000000023296 is allowed as under.
a) Promoter shall pay interest on period of delayed possession of Six months on the amount of Rs. 1,65,8806/- to the allottee at the rate prescribed by Rule 18 of Maharashtra Real Estate (Regulation and Development) (Registration of Real Estate Projects Registration of Real Estate Agents. Rates of Interest and Disclosures on Website Rules, 2017,
b) In peculiar circumstance of the matter, parties to bear their respective costs.
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