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Rekha Sinha Vs.Larsen and Toubro Ltd. - (Real Estate Appellate Tribunal) (14 Mar 2019)

Recovery of interest on delayed period even though claimed after taking possession is maintainable

MANU/RT/0047/2019

Property

In facts of present case, Appellant-allottee has challenged the final order passed by Learned Member and Adjudicating Officer of MahaRERA Authority in complaint 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.

Promoter launched the project namely Emerald Isle at Powai Estate. Allottee had booked the flat. Promoter agreed to sale the said flat for consideration. Accordingly, registered agreement for sale was executed between the parties. 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 5th December, 2017. The allottee filed complaint for recovery of interest on period of delayed possession under Section 18(1)(a) of RERA Act, 2016 against the promoter.

The Learned 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. So, the Learned Member and Adjudicating Officer MahaRERA dismissed the complaint on the ground that, Section 18(1)(a) of RERA Act, 2016 is not attracted

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.

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.

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.

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. 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.

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. 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.

Thus, the impugned order passed by 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 allottee is justified in getting interest on that part of delayed period of possession for which no reasonable justification is given by promoter. The impugned order is set aside. Appeal allowed.

Tags : DELAYED POSSESSION   INTEREST   ENTITLEMENT  

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