MANU/RT/0355/2022

BEFORE THE MAHARASHTRA REAL ESTATE APPELLATE TRIBUNAL

Appeal No. AT005000000052360 in Complaint CC005000000022352
Decided On: 30.06.2022
Appellants: Tanish Associates Partnership Firm and Ors.
Vs.
Respondent: Vishwanath Yerwa and Ors.
Hon'ble Judges/Coram:
Indira Jain, J. (Chairperson) and Dr. K. Shivaji, Member (Ad.)
Counsels:
For Appellant/Petitioner/Plaintiff: Nilesh Borate, Advocate
For Respondents/Defendant: Leena Kaulgekar, Advocate
Dr. K. Shivaji, Member (Ad.)
(THROUGH VIDEO CONFERENCE)
Present appeal has been preferred under "The Maharashtra Real Estate (Regulation and
Development) Act, 2016 (in short "the Act") against the order dated 20th December
2019 passed by learned Member, Maharashtra Real Estate Regulatory Authority,
(MahaRERA) in Complaint No. CC 005000000022352.
1. Appellants are promoters, who are developing the said project and respondents are
flat purchasers & complainants before MahaRERA. For convenience, appellants and
respondents will be addressed hereinafter as promoters and complainants respectively.
2. Brief background giving rise to the instant appeal is as under;
a. Complainants booked flat number 1103 in S building of the project known as
"Tanish Orchid" situated at Charholi, Pune (in short "the project") and executed
agreement for sale on 30th April 2016. Clause 3 (e) of the agreement stipulates
that construction shall be completed on or before June 2017 and upon issuance
of the completion certificate, possession of the flat will be delivered with grace
period of six months for reasons beyond control of promoters.
b. On account of non-receipt of the possession of the flat before the agreed
date, respondents filed complaint before MahaRERA.
c. Promoters appeared and resisted the complaint by contending that agreement
has been executed in 2016. Hence, it is not governed by the said Act, which is
not retrospective in operation. They further contended that date of possession
was 2017, which is subject to the extension of six months for reasons beyond
control of promoter. Project is delayed because of the demonetization scheme.
Complainants were offered possession of the flat but they didn't come forward
to avoid maintenance amount.
d. Upon hearing the parties, learned Member, MahaRERA came to the
conclusion that promoters have failed to hand over possession on or before the

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 agreed date. Thereby, complainants are entitled to claim interest for the
delayed possession and passed the impugned order dated 20th December 2019
with direction to promoters inter alia to pay interest to complainants from 1st
July 2017 till 11th December 2019 together with cost of ' 20,000.
e. Aggrieved by this order of MahaRERA, promoters preferred the instant appeal
seeking various reliefs including to set aside and quash the impugned order.
3. Heard parties.
4. Promoters submit inter alia that
a. MahaRERA ought to have held that demonetization program implemented
from November 2016, has slowed down the construction and housing industry.
Whereby, project construction was delayed due to factors beyond the control of
the promoters.
b. Architect has issued work done certificate on 10th January 2018, stating that
100% construction work was complete.
c. MahaRERA ought to have held that promoters had already received various
NOCs, required for getting completion certificate except NOC for sewage
treatment plant, for which, the NOC was received on 4th September 2019.
d. Promoters have already obtained occupancy certificate on 11th December
2019 but complainants have filed a police complaint, wherein, reply has already
been sent.
e. Complainants did not pay maintenance amount, which remained unpaid
despite follow up.
f. Despite further follow up, complainants failed to take fit out possession
offered by promoters.
g. Perusal of impugned order makes it clear that MahaRERA has not adjudicated
the issue regarding possession.
h. MahaRERA ought to have held that promoters were never at fault and
pleaded inter alia to quash and set aside the impugned order dated 20th
December 2019 and dismiss the complaint.
5. Per Contra, complainants submit that
a. Promoters have offered possession without obtaining completion
certificate/occupancy certificate. Therefore, offering fit out possession does not
absolve promoters from legal obligation to compensate complainants for
delayed possession.
b. Legal possession is only, when possession is offered with occupancy
certificate. However, the occupation certificate was received only on 11th
December 2019. But promoters have not offered possession despite follow up
including by emails.
c. Maintenance amount was to be paid at the time of handing over the
possession but with malafide intention to harass complainants, promoters

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 demanded maintenance amount even before giving legal possession.
Complainants are ready to pay maintenance charges from the date of
possession. Complainants have made an application on 24th December 2021 for
filing FIR to police against promoters under
d. Impugned order is correct and is according to the provisions of the Act.
Accordingly, urged to dismiss the present appeal and impose heavy cost on
promoters.
6. Upon perusal of pleadings, rival submissions of parties and material on record, sole
point that arises for our determination is, whether the impugned order calls for
interference in this appeal and to this, our finding is in the negative for the reasons to
follow;
REASONS
7. Agreement for sale stipulates that "promoters shall complete the construction of the
said unit as agreed to here in on or before June 2017 and shall deliver possession
thereof to the flat/unit purchaser on issuance of the completion certificate by the
concerned planning authority if any on or after given certificate by the architect. This is
subject to grace period of 6 months for the reasons beyond the control."
8 . Learned counsel for promoters submits that project was delayed because of the
demonetization scheme and has secured NOC for the sewage treatment plant on 4th
September 2019. Even though, architect had given a certificate of work done certificate
on 10th January 2018, he could secure occupancy certificate from the concerned
planning authority on 11th December 2019. As such, promoters received NOC for
sewage treatment plant only on 4th September 2019. This makes it crystal clear that
even after considering the grace period of six months, project was not complete in all
respects on or before the agreed date for possession of June 2017, as stipulated in the
agreement.
9 . Promoters have further contended that delay in project completion is not on their
counts and they are not responsible for the alleged delay. Promoters have rather been
constrained by factors beyond their control.
However, Para 25 of the judgment of the Hon'ble Supreme Court dated November 11,
2021 in the case of M/s. Newtech Promoters and Developers Pvt. Ltd. vs. State of UP &
Ors in Civil Appeal No(s). 6745 - 6749 and 6750 - 6757 of 2021 clarifies that if the
promoter fails to give possession of the apartment, plot or building within the time
stipulated under the terms of the agreement, then, allottees right under the Act to seek
refund/claim interest for delay is unconditional & absolute, regardless of unforeseen
events or stay orders of the Court/Tribunal. Relevant abstract is being reproduced below
for ready reference.
"25. The unqualified right of the allottee to seek refund referred under Section
18(1)(a) and Section 19(4) of the Act is not dependent on any contingencies or
stipulations thereof. It appears that the legislature has consciously provided
this right of refund on demand as an unconditional absolute right to the
allottee, if the promoter fails to give possession of the apartment, plot or
building within the time stipulated under the terms of the agreement regardless
of unforeseen events or stay orders of the Court/Tribunal, which Is In either
way not attributable to the allottee/home buyer, the promoter Is under an
obligation to refund the amount on demand with Interest at the rate prescribed

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 by the State Government including compensation in the manner provided under
the Act with the proviso that if the allottee does not wish to withdraw from the
project, he shall be entitled for interest for the period of delay till handing over
possession at the rate prescribed."
1 0 . Moreover, section 18 of the Act (being reproduced below for ready reference),
specifically mentions the importance of agreement for sale for the purpose of assessing
delay in handing over possession, which may be due to discontinuation of his business
as developer...or for any other reasons. On meticulous examination of Section 18, it can
be seen that under Proviso to Sub-section (1), if promoter fails to complete the project
or is unable to deliver possession of apartment, plot or building, and allottee does not
intend to withdraw from the project, promoter shall pay interest for the period of delay
till handing over possession to allottee at such rate as may be prescribed.
"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)..
(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 shall be liable to
pay such compensation to the allottees, in the manner as provided under this
Act."
1 1 . Against this, promoters have offered fit-out possession, evidently without
completing the project in all respects. Whereas, "Possession" as contemplated in section
18 of the Act is not "fit out possession". There is no concept of "fit-out possession"
under the Act. It is also a settled position that fit-out possession is not recognized as
legal & valid possession. Therefore, no advantage will accrue on this count.
12. In view of above, promoters are obligated to handover possession after securing
completion certificate from the competent planning authority on or before the agreed
date. But promoters have failed to do so as per the agreement. Moreover, delay on
account of demonetization will not come to rescue of promoter from legal liabilities
under the Act. Accordingly, complainant is entitled to claims from promoter as per the

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provisions of the Act.
13. In view of the foregoing observations, we hold that contentions of the appellant are
not substantiated and MahaRERA has correctly concluded that promoters have failed to
deliver possession on or before the agreed date. The impugned order is well reasoned,
suffers from no infirmity and does not call for any interference in this appeal.
Consequently, appeal having no merit, deserves to be dismissed. Accordingly, we
proceed to pass order as under:-
ORDER
a. Appeal is dismissed.
b. No order as to costs.
c. In view of the dismissal of appeal, pending miscellaneous application will not
survive, hence stands disposed of.
d. In view of the provisions of Section 44(4) of the Act of 2016, copy of the
Judgment be sent to the parties and MahaRERA.
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