Shriram R. Jagtap, Member (J)

1. Feeling aggrieved by an order dated 12.11.2020 passed by the learned Chairperson, MahaRERA (for short "Authority") in complaint filed by allottees, the appellant, who is one of the complainants, preferred present appeal raising grievance that learned Authority has not satisfactorily granted reliefs as sought by appellant in complaint.

2. Appellant and respondent hereinafter will be referred to as "allottee" and "promoter" respectively for the sake of convenience.

3. The promoter launched a project known as "Runwal Greens Wings 5-8", situated at Mulund, Mumbai. The appellant and his father Mr. Mark Clemet Serrao (since deceased) were desirous of purchasing premises for peaceful habitation. Both did enquiry with various developers including respondent. On considering goodwill of the promoter both had decided to purchase a residential flat in the project of respondent. They had booked flat bearing No. 3005-T8 admeasuring 941.26 sq.ft. on 30th floor in Tower No. 8 in the project of promoter for total consideration of Rs. 1,38,30,000/-. Pursuant thereto a registered agreement came to be executed by and between parties on 10.01.2012 and allottees had paid Rs. 27,66,000/- being 20% of the total consideration and balance consideration was to be paid as per schedule of payments. The promoter had committed to hand over possession of the subject flat to allottee on or before December 2015.

4. The promoter had failed to discharge his obligation to hand over possession of the subject flat by December 2015. However, by letters dated 11.1.2016 and 28.2.2017 the promoter expressed his inability to comply with his obligation on account of force majeure and reasons beyond his control. In July 2018 allottees were called upon by the promoter to take possession of the subject flat. The appellant and deceased were in the process of securing possession of the subject flat after making requisite payments. However, to shock and surprise, the Promoter issued another letter dated 13.7.2018 stating therein that the promoter had ascertained that carpet area of the subject apartment has increased by 127.06 sq.ft. and therefore an additional amount of Rs. 10,85,000/- along with Rs. 1,30,200/- towards GST need to be paid by allottees. The promoter not only failed to offer explanation for sudden increase in carpet area of the apartment, but also did not allow appellant and deceased to have physical examination of the subject flat for verifying increased carpet area.

5. By letter dated 31.7.2018, the promoter was called upon by appellant and deceased to furnish proof of increased carpet area. However, the promoter instead of furnishing proof as sought by appellant and deceased, called upon appellant and deceased to make payments towards extra area. The promoter has conveniently ignored the queries of the appellant and at the same time sent reminders to appellant and deceased for payment towards purported extra area. As a result, the appellant and deceased filed complaint before the learned Authority and sought reliefs of possession of the subject flat and compensation for delayed possession.

6. The promoter had appeared in the complaint and remonstrated the claim of allottees contending that the complainants were offered possession of the subject flat on 11.7.2018 after receipt of occupation certificate on 7.7.2018. The complaint was filed after complainants were offered possession by promoter. The complainants sought to invoke Section 18 of RERA after being offered possession and without there being any cause of action for filing the complaint. The complainants were already in violation of provisions of Section 19(6) of RERA and also they breached terms of the agreement for sale dated 23.12.2011. The complainants had, under Clause 20 of the said agreement, agreed to pay an amount that would become payable by them, if the carpet area of the subject flat, once completed, has increased. The complainants are yet to remit an amount of Rs. 10,85,000/- and GST of Rs. 1,30,200/-, total Rs. 12,15,200/- which was demanded by letter dated 13.7.2018 for increased carpet area admeasuring 127.06 sq.ft. in the subject flat. Besides the complainants are liable to pay interest of Rs. 2,37,012/- calculated upto 28.10.2020 for delayed payment.

7. The promoter in his reply filed before the learned Authority has further contended that the learned Authority in the case of Mahesh Sikotra Vs. Propel Developers Pvt. Ltd. has held that additional area, that got added in flats in the project when project was completed, can be charged for as per terms agreed in the agreement for sale. The said order was challenged, but the same has been upheld by the Appellate Tribunal. The carpet area of subject flat has marginally increased and the same is borne out by the sanctioned occupation certificate plan of the said flat. It has been further contended that Section 18 ceases to operate once possession has been offered. There is no violation of provisions of RERA. By letter dated 27.7.2017 the complainants admitted that they were informed about possession date being revised to October 2017. The complainants did not raise any protest whatsoever. The complainants were apprised by promoter about revised date of possession and offered refund if revised date was not acceptable to them. The complainants by accepting letter of promoter impliedly accepted revised possession date without any demur and by not exercising right to take refund.

With these submissions, the promoter has prayed to dismiss the complaint.

8. After considering the submissions advanced by respective parties, the learned Authority held that promoter is not liable to pay interest to complainants on account of delay in handing over possession of the subject fiat. Aggrieved by the fact that reliefs as desired in the complaint are not awarded, allottee has filed instant appeal seeking directions to promoter to pay interest on account of delay in handing over possession.

9. We have heard learned Advocate Mr. Kunal Maskar for appellant/allottee and learned Advocate Mr. Chirag Kamdar for respondent/promoter.

10. To justify the claim of allottee and while targeting impugned order as ex facie illegal, the learned Advocate Mr. Kunal Maskar for appellant has strenuously submitted that promoter executed a registered agreement for sale on 10.1.2012 and promised to handover possession of subject flat by December 2015. However, on 11.1.2016 the promoter wrote to allottees and thereby expressed his inability to comply with his contractual obligation on account of force majeure and reasons beyond his control and further committed to handover possession of unit before September 2017. The promoter again by letter dated 28.2.2017 revised the date of possession to October 2017. The promoter unilaterally extended the dates of possession twice only on account of so-called force majeure factors. It is not in dispute that the respondent failed to handover possession of subject apartment even by October 2017. The promoter received occupation certificate on 7.7.2018. This itself is sufficient to show that the promoter had failed to discharge his obligation to handover possession by October 2017.

11. It is further argued that on 11.7.2018 appellant was called upon by promoter to take possession of the flat. Appellant and deceased were in process of securing possession of subject flat. However, they were staggered by letter dated 13.7.2018 whereby the promoter asked them to pay additional amount of Rs. 10,85,000/- and GST of Rs. 1,30,000/- on account of increase in carpet area of subject flat. The promoter also did not allow appellant and deceased to have physical examination of subject flat for verifying so-called increased carpet area. The learned Advocate has further submitted that by letter dated 31.7.2018, the promoter was directed to furnish proof in regard to increase in carpet area of the subject flat. However, the promoter instead of furnishing proof as sought by appellant and deceased, asked appellant and deceased to make excess payment under the garb of increased carpet area of subject flat Because of this behavior of promoter, allottee did not take possession of subject flat. However, the appellant took possession of the subject flat on 21.2.2021 under protest.

12. The learned Advocate Mr. Kunal Maskar has further submitted that the promoter failed to handover possession of subject flat by December 2015 and also on revised dates. Once the promoter failed to handover possession of flat on agreed dates, allottees are entitled to enforce their rights under Section 18 of RERA. The right of allottees as conferred by Section 18 of RERA is indefeasible. The allottees have unqualified right to seek interest on their investment upon failure of promoter to give possession by specified date or by revised dates. The learned Chairperson, MahaRERA denied relief of interest only on the grounds that once the project is completed or possession is given, as the case may be, the provisions of Section 18 of RERA would not attract or ceases to operate. The said finding of the learned Authority is not only factually incorrect, but erroneous, ex facie illegal, contrary to the propositions of law and unsustainable for the reason that the right conferred by Section 18 of RERA cannot be defeated merely because the allottee has taken possession during the pendency of appeal or merely because the promoter had offered possession of flat to allottee even after due date of possession.

13. The learned Advocate Mr. Kunal Maskar vehemently submitted that the cause of action for filing complaint to seek interest on amount paid for delayed possession arises only if the date of possession is passed. Since the promoter has committed breach of terms of agreement, there is no acquiesce or waiver by the allottees, to statutory right merely because they have received possession of flat even though the date of possession is passed. The learned Advocate has further submitted that this Tribunal has specifically held in catena of judgments that receipt of occupation certificate or part occupation certificate and offer of possession will not defeat the right of the allottee to claim interest under Section 18 of RERA. This Tribunal has further held that even after receipt of possession, the allottee can claim interest under Section 18 of RERA if promoter fails to handover possession of flat by specified date. The learned Advocate has placed reliance on the following citations-

(1) M/s. Dosti Corporation Vs. Sea Flama Cooperative Housing Society Ltd. & Ors. [Appeal from Order No. 117 of 2016]

(2) Malluru Mallappa(D) THR. LRS. Vs. Kuruvathappa & Ors. [Civil Appeal No. 1485/2020]

(3) Rohit Chawla Vs. M/s. Bombay Dyeing & Mfg. Co. Ltd. [Appeal Nos. AT006000000011016 and other Appeals]

With these submissions the learned Advocate Mr. Kunal Maskar has submitted that impugned order is not sustainable in law and therefore, it is liable to be set aside. He prayed to grant reliefs to allottee as claimed in the appeal.

14. In disagreement with contentions of allottee and while justifying the impugned order to have been correctly passed, the learned Advocate Mr. Chirag Kamdar for promoter has vehemently submitted that after December 2015 the promoter had written two letters to allottees. By letter dated 11.1.2016, the promoter had specifically informed allottees that the date of possession mentioned in agreement for sale dated 10.1.2012 has been revised to September 2017 on account of force majeure factors. The promoter vide letter dated 28.2.2017 again revised the date of possession as October 2017 and at the same time apprised allottees to exercise an option to take refund with interest if revised possession date October 2017 is not acceptable to them. Despite this offer, allottees chose to continue with the project. This conduct of appellant clearly indicates that appellant had waived or abandoned earlier date of possession mentioned in agreement for sale and unequivocally agreed the revised possession dates, The appellant did not raise any objection. The appellant did remain as silent spectator. The appellant voluntarily agreed to continue in the project despite offer expressed by promoter for refund of amount along with interest and pursuant thereto they continued to make payments to promoter. This signifies that allottees by their conduct elected to remain in the project having accepted the revised timeline. The claim of appellant is expressly barred under Section 55 of Indian Contract Act, 1872, as appellant has accepted revised possession dates without giving any notice reserving his right, interest or compensation.

15. The learned Advocate Mr. Chirag Kamdar has sorely submitted that a party cannot be permitted to approbate and reprobate. The complainants were apprised by promoter about the revised possession dates and also their right to ask for refund. However, the complainants having knowledge of their rights knowingly accepted the benefits of contract, therefore, they are estopped from denying the binding effect of such contract. The doctrine of election is based on rule of estoppel and therefore appellant is precluded, by way of his actions or conduct or silence when it is his duty to speak for ascertaining right which he would have otherwise had, The appellant has failed to explain what prevented him from approaching the learned Authority on or before December 2015 especially when it was already communicated to him that there was to be a rescheduling possession timelines. No genuine party will remain silent and wait to raise grievance about purported delay in possession for 4 years.

16. Learned Advocate Mr. Kamdar has submitted that at the time of purchase of subject flat, allottees were apprised that certain open areas appurtenant to the flat i.e. which were not usable as part of the flat, could in the future be counted in FSI and thus be included within the carpet area after the approval of the amendment to the DCR 1991. By this amendment the concept of fungible FSI was introduced to the City of Mumbai for the first time. Those portions of the building which were initially computed as being free FSI, including areas such as flower beds, were now required to be included as part of the FSI consumption for that plot The total amount of fungible FSI that could be utilized was restricted to 33% of the inherent FSI otherwise available for that plot. Therefore, certain portions of the subject flat like flower bed be shown as areas attached to or appurtenant to the subject flat, but instead were necessarily required to be included in the FSI computation and treated as part of the carpet area.

17. It is further argued that Clause 16 of the agreement for sale talks about consumable FSI. It further provides that the developer shall be entitled to amend or change the plan without reducing the area of flat. It further provides that plans can be modified at any time. Clause 16 permits owner to utilize FSI and purchasers have given free consent for the same. Clause 20 of agreement for sale mandates the purchasers to pay for additional/increased area. Owing to the amendment to Regulation 35 of DCR, the respondent was constrained to amend the plans already prepared and sanctioned and was required to include the flower beds and other portions within the FSI computation for each of the flats including the subject flat. Apart from this, the respondent was also required to pay considerable amount of premium to MCGM in order to do so. By virtue of agreement for sale, the respondent is permitted to raise level of the fungible area like the flower bed etc. so as to bring it in level with the rooms of which it would now become part and be included in the carpet area as a habitable part of that flat. The promoter has charged Rs. 10,85,000/- for additional area and it is on the basis of 20% of booking amount. It is a reasonable cost.

18. It is further argued that the letter of allottees dated 14.7.2018 shows that allottees have not specifically disputed their liability to pay costs for increased area. By this letter the allottee no doubt raised issue of increased area, but at the same time did not raise any issue of delay in possession. Section 55 of Indian Contract Act speaks about effect of failure to perform at fixed time, in contract in which time is essential. It is clear from Section 55 of Indian Contract Act that if promisor had accepted the performance of the contract beyond expiry of the time fixed for the same, he cannot claim compensation for any loss occasioned by the non-performance of the terms at the time agreed unless at the time of such acceptance, he gives notice to the promisor of his intention to claim compensation for the delay. The allottee did not raise his grievance in regard to revised dates of possession, on the contrary even after revised date of possession, the allottee kept on making payments to promoter.

19. The learned Advocate has further submitted that for developments in the City of Mumbai commencement certificate is always granted in parts, therefore, at the stage when Notification regarding amendment to Regulation 35 of DCR was issued, the subject project had been granted commencement certificate only upto the podium top including basement floors. The sanctioned plan makes it dear that the fungible areas like flower bed etc. are now specifically included in the FSI computation and form part of the carpet area of the subject flat. This was done in accordance with the provisions of modified DCR 1991. The learned Advocate has further submitted that as regards Section 14 of RERA, there are no amendments in the plan of the project, therefore, there arises no question of applicability of Section 14 of RERA. The only variation in the carpet area is due to amendment to DCR 1991.

20. It is further argued that, it is not in dispute that on 7.7.2018 the respondent had received occupation certificate. On 11.7.2018 the respondent had offered possession of the subject flat. Appellant and deceased committed default in making final payments and thereby violated the provisions of Section 19(6) of RERA. The appellant and deceased were also in violation of Section 19(10) of RERA for deliberately avoiding in taking possession of the subject flat within two months from the receipt of occupation certificate. The allottees upon being served with final demand letter first raked up baseless dispute about increased in carpet area. The appellant and deceased had not once before the offer of possession raised any grievances about delay in possession and suddenly when demand for final installment was raised, they brought up the issue of alleged delay, belatedly. Plain reading of Section 18 of RERA makes it clear that the default for delay in possession continues only until the promoter is unable to give possession and once occupation certificate is obtained and possession is offered, the cause of action under Section 18 of the RERA comes to an end. The learned counsel placed reliance on following citations-

(1) Rajasthan State Industrial Development and Investment Corporation and Anr. Vs. Diamond Gem Development Corporation Limited & Anr. [(2013) 5 SCC 470] [LQ/SC/2013/176] .

(2) Hindustan Petroleum Corporation Limited Mumbai Vs. Batliboi Environmental Engineers Mumbai & Anr. [(2008) 2 Mh.L.J.].

(3) Paras Laminates (P) Ltd. Vs. Customs, Excise & Gold (control) Appellate Tribunal.

(4) Daman Singh & Ors. Vs. State of Punjab & Ors. [(1985) 2 SCC 670] [LQ/SC/1985/114] .

(5) Ashok Kapil Vs. Sana Ullah & Ors. [(1966) 6 SCC 342].

(6) Larsen And Toubro Vs. Rekha Sinha [Second Appeal (St.) No. 12744 of 2021].

With these submissions the learned Advocate for respondent has prayed to dismiss appeal with costs.

21. Having considered the pleadings of the parties, submissions advanced by learned counsel for respective parties and material available on record, following points arise for our consideration, to which we have recorded findings for the reasons to follow-

(1) Whether allottee/appellant is entitled to interest as per provisions of Section 18 of RERA on account of delay in possession as per agreement for sale In the affirmative

(2) Whether impugned order dated 12.11.2020 warrants interference in this appeal In the affirmative.

(3) What order As per final order.

REASONS

22. Examination of material on record would show that parties had executed an agreement for sale on 23.12.2011 which came to be registered on 10.1.2012. By virtue of agreement for sale, the promoter had promised to hand over possession of the subject flat by December 2015, The promoter not only failed to perform his obligation to handover possession of the subject flat to allottee by specified date, but also by letter dated 11.1.2016 revised date of possession as September 2017. It further transpired that the promoter again failed to adhere to his commitment and by letter dated 28.2.2017 informed the allottee that project has had delays essentially due to factors completely beyond the control of the promoter and again unilaterally extended the date of possession till October 2017.

23. It is not in dispute that the promoter received occupation certificate on 7.7.2018 and offered possession of the subject flat on 11.7.2018. A perusal of letter dated 11.7.2018 would show that the promoter asked allottee to pay balance amount of Rs. 4,21,084/- plus tax of Rs. 50,066/-. Since the allottees were in process of securing possession of the subject flat, after making requisite payments, they were staggered by letter dated 13.7.2018 whereby the promoter asked them to pay additional amount of Rs. 10,85,000/- towards increase in carpet area in subject flat. This letter led to the controversy between parties. Considering controversy raised in the complaint filed by appellant and his father late Mark Clemet Serrao, it is clear that the claim of the appellant falls within the ambit of Section 18 of RERA which provides an option to allottee to seek interest on amount paid by him in case there is delay in possession by specified date.

24. We now advert to examine whether the appellant is entitled to relief of interest as contemplated under Section 18 of RERA for delay in possession and will also ascertain correctness and legality of the impugned order. On examination of impugned order would show that the learned Authority denied relief of interest to appellant for the reasons that default for delay in possession continues only until promoter is unable to give possession and once occupation certificate is obtained and possession is offered, Section 18 of RERA would not apply.

25. A perusal of Section 18 of RERA indicates that the promoter is obligated to hand over possession as per agreement for safe by date specified therein. The date so specified in agreement or in any other manner or form is sacrosanct and neither RERA nor promoter rewrite the same without consent of the allottee. This signifies that Section 18 of RERA would not operate only when possession is handed over within the specified date. However, where possession is handed over beyond the specified date, Section 18 would be attracted to entitle allottee to claim reliefs as provided thereunder. It has been held by the Hon'ble Supreme Court in M/s. Imperia Structures Ltd. Vs. Anil Patni & Ors. [in Civil Appeal No. 3581-3590 of 2020] that-

"In terms of Section 18 of the RERA Act, if a promoter fails to complete or is unable to give possession of an apartment duly completed by the date specified in the agreement, the Promoter would be liable, on demand, to return the amount received by him in respect of that apartment if the allottee wishes to withdraw from the Project. Such right of an allottee is specifically made "without prejudice to any other remedy available to him". The right so given to the allottee is unqualified and if availed, the money deposited by the allottee has to be refunded with interest at such rate as may be prescribed. The proviso to Section 18(1) contemplates a situation where the allottee does not intend to withdraw from the Project. In that case he is entitled to and must be paid interest for every month of delay till the handing over of the possession. It is upto the allottee to proceed either under Section 18(1) or under proviso to Section 18(1)."

26. Section 18 of RERA recognises allottees' right to interest while delay in possession and within stipulating time limit for taking steps to seek relief as provided thereunder. Section 18 of RERA casts obligation on promoter that in case of delay in possession, he shall be liable in case allottee does not wish to withdraw from the project, pay interest on the amount paid by allottee. The Hon'ble Apex Court while explaining the scope of right of allottee under Section 18 of RERA in M/s. Newtech Promoters [Civil Appeal Nos. 5745, 6749 and 6750 to 6757 of 2021] has held in paragraph 25 as under-

"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 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."

Section 18 of RERA clearly indicates that there is no bar to exercise the right conferred by Section 18 of RERA even after date of possession is revised by promoter or even after receipt of occupation certificate by promoter.

27. It is specific contention of the promoter that by letters dated 11.1.2016 and 28.2.2017 the promoter had specifically informed to allottee that the date of possession mentioned in agreement for sale has been revised to September 2017 and again revised to October 2017. At the same time, the promoter had also apprised allottee to exercise an option to take refund with interest if revised date of possession i.e. October 2017 is not acceptable to them, failing which allottee will not be entitled to claim compensation in this regards. Despite this allottees neither raised any objection in regard to revised possession dates nor exercised his right to exit from the project, on the contrary allottee chose to continue with the project. By doing so the allottee waived his earlier objection, if any, inter alia, in regard to delay in possession. Therefore, allottee is not entitled to exercise such right after receipt of occupation certificate and offer of possession of subject flat.

28. A careful examination of letter dated 28.2.2017 would show that the language employed in the said letter clearly indicates that promoter gave Hobson's choice to allottee. Such Hobson's choice is neither recognized by MOFA nor RERA, 2016. On the contrary Section 8 of MOFA and Section 18 of RERA mandate the promoter to refund the amount paid on demand by the allottee. Section 18 of RERA does not give option to promoter where promoter is unable to complete or handover possession of unit for no fault of his own, it would be open to him to claim frustration in a such case and return the money to the allottee with interest thereby stopping the interest that is to be paid till handing over possession. Therefore, we are of the view that such Hobson's choice does not have value in the eyes of law.

29. It is further contention of the promoter that promoter had specifically informed allottee that the project has had delays essentially due to factors beyond control of promoter. Promoter has to obtain approvals from the statutory authorities/Departments such as M.C.G.M., Fire Department, Water Department etc. Therefore, allottee is not entitled to claim interest under Section 18 of RERA. We do not find substance in the contentions of the promoter. It has been held by the Hon'ble Bombay High Court in Neelkamal Realtors Vs. Union of India [(2018) 1 AIR Bom R 558] that having sufficient experience in the market promoter ought to have assessed likely delay, these factors might cause in completion of project by specified date of possession while executing agreement for sale. After examination of the record and contentions of promoter, we are of the view that the above mentioned mitigating circumstances cannot be treated as force majeure factors as they are commonly defined and understood. Allottee cannot be held responsible or liable to adverse effect in view of delay.

30. The Hon'ble Supreme Court in M/s. Newtech Promoters (supra) held that in case of failure to give possession by specified date regardless of "unforeseen events" or stay orders of the Court/Tribunal, which is in either way not attributable to the allottee, the promoter is liable to pay interest on the amount paid by allottee. It is significant to note that a perusal of letters dated 11.1.2016 and 28.2.2017 (pages-182 and 183 respectively) would show that the promoter unilaterally and without consent of allottee has revised date of possession twice. Therefore, merely because allottee did not raise any objection in regard to revised dates of possession does not mean that allottee has abandoned his claim, resultantly allottee is disentitled from claiming reliefs under Section 18 of RERA either to withdraw from the project by claiming refund or to continue with the project by claiming interest for the period of delay.

31. Waiver means abandonment of right and it may be expressed or implied from the conduct, but its basic requirement is that it must be "an intentional act with knowledge". We are of the view that there can be no waiver unless the person who is fully informed as to his right and with full knowledge about his right, he intentionally abandoned his right. In our opinion allottee is neither required nor expected to record that he accepted revised dates of possession without prejudice to his right to claim interest as the same is expressly and statutorily provided under Section 18 itself. Allottee has liberty to claim interest even after receipt of intimation from promoter about revised date of possession, unless the same is expressly waived. Right conferred under Section 18 of RERA to allottee is indefeasible. Such right cannot be defeated even after receipt of information about the revised date of possession without protest about delay. The Hon'ble Supreme Court in M/s. Newtech Promoters And Developers Pvt. Ltd. (supra) has held in para 77 as under-

"77 The further submission made by the learned counsel for the appellants is that return of the amount adversely impacts the promoter and such a question can be looked into by the adjudicating officer in the better prospective. The submission has no foundation for the reason that the legislative intention and mandate is clear that Section 18(1) is an indefeasible right of the allottee to get a return of the amount on demand if the promoter is unable to handover possession in terms of the agreement for sale or failed to complete the project by the date specified and the justification which the promoter wants to tender as his defence as to why the withdrawal of the amount under the scheme of the Act may not be justified appears to be insignificant...."

32. Section 18 of RERA gives an option to allottee to claim interest on amount paid on failure of promoter to adhere to his contractual or statutory obligation. The provisions of RERA ensure that allottees' money is not misused or unreasonably retained by the promoter. RERA assures completion of project in a time bound manner. The learned Authority has failed to ensemble the provisions of Section 18 and arrived at a wrong conclusion that the provisions of Section 18 shall apply only till the project is incomplete or the promoter is unable to give possession and once the project is complete or possession is given, as the case may be, the said provisions cease to apply. Therefore, for the foregoing reasons we have come to the conclusion that the learned Authority is not justified in not granting relief of interest to allottee.

33. It is not in dispute that the promoter received occupation certificate on 7.7.2018. The promoter offered possession of subject flat to allottee on 11.7.2018. Allottee did not take possession of the subject flat immediately on the ground that the appellant was asked by promoter to pay additional amount of Rs. 10,85,000/- and GST of Rs. 1,30,000/- on account of increase in carpet area of the subject flat. However, allottee has not claimed specific relief in regard to this issue in the complaint. Apart from this, the record would show that because of amendment to Regulation 35 of DCR 1991 carpet area of subject flat has been increased to 127.06 sq.ft. Clause 20 of agreement for sale mandates the purchaser to pay costs for additional or increased area. Therefore, allottee cannot be absolved of the liability to pay cost for increased area particularly when no other price than the agreed as per agreement is being charged for the increased area.

34. For the foregoing reasons we have come to the conclusion that allottees are entitled to interest on amount paid from 1.1.2016 till the date of offer of possession i.e. 11.7.2018. As a result, impugned order warrants interference in this appeal. Consequently, we proceed to pass following order-

ORDER

(i) Appeal No. AT006000000052847 is allowed.

(ii) Impugned order dated 12.11.2020 passed by the learned Chairperson, MahaRERA in Complaint No. CC006000000078977 is set aside.

(iii) Respondent is directed to pay interest on the amount paid by allottee at the rate of State Bank of India's marginal cost of lending plus 2% (simple interest) for the period from 1.1.2016 till 11.7.2018 within a month, failing which the accrued interest for the said period shall carry further interest as per rate specified above until realisation of the amount.

(iv) Respondent is directed to pay costs of Rs. 20,000/- to allottee.

(v) A Copy of this judgment be sent to the learned Authority and parties as per Section 44(4) of RERA, 2016.