[PER : SHRIRAM R. JAGTAP, MEMBER (J.)]

1. These appeals are subject matter of this common judgment being passed considering the similarity of facts, circumstances and question of law involved in these appeals. Appeal at Sr. No.1 is directed against the original order dated 21,8.2019 passed by the learned Member-l, MahaRERA (for short "AuthorityJ in Complaint No.CC006000000079336 filed by complainants/allottees. The allottees have also challenged order dated 23.12.20t9 passed by the same Member, MahaRERA on Rectification Application dated 8.11.2019 filed by allottees. Appeals at Sr. Nos,2 and 3 are filed by developer to challenge the orders dated 21,8.2019 passed by the same Member, CC006000000057897 fi led by allottees.

2. For the sake of convenience of reference, appellants in first appeal and respondents in appeal at Sr. No, 3 will hereinafter be referred to as "Allottees" and appellant in appeals at Sr. Nos. 2 and 3 will hereinafter be referred to as "developer".

3. The brief facts necessary for deciding these appeals are as under -

(i) The developer undeftook project known as "DB Ozone" under the Rental Housing Scheme launched by MMRDA having total 25 buildings within the jurisdiction of Mira Bhayander Municipal Corporation, District Thane, To ensnare the allottees, the Sales Manager of the Developer had depicted glorious picture of project. As a result thereof, in 2010 allottees in appeal at Sr. No.1 booked flat No.1602, admeasuring 624.1t sq.ft. on 16th floor in Building No.1 of the project of developer along with car parking for a total consideration of Rs.40,29,744l-. Pursuant to booking, the developer issued letter of allotment dated 06.01.2010 to allottees. Thereafter on 2lst july 2010 a registered agreement for sale came to be executed between the parties and thereby developer committed to hand over possession of flat to allottees by 31.12.2014 with a grace period of one year i.e. latest by 31.12,2015.

(ii) The allottees have made following payments to developer-

(1) Rs.36,93,258/- towards cost of flat which is more than 90% of total consideration.

(2) Rs.2,24,4001- towards stamp duty,

(3) Rs.32,360/- towards registration charges

(4) Rs.L,5l,4l2l- towards VAI service tax and GST

(iia) The allottees are liable to pay balance amount to developer as follows -

(1) Rs.3,36,485/- towards balance amount of flat's cost including car parking charges of Rs.93,728l-.

(2) Rs.72,7381- towards other charges which are set out in Clause (35) of agreement for sale.

(iv) On failure of developer to hand over possession by specifled date, allottees have flled complaint with the Authority seeking following reliefs -

(1) To direct the developer to hand over physical possession of the subject flat along with car parking.

(2) To direct the developer to pay interest on delayed possession as per provision of Section 18 of RERA

(3) To direct the developer to pay compensation of Rs,3.00 lakhs on account of deficiency in services, unfair trade practices, mental agony etc

(4) To direct the developer to pay cost of Rs.1.00 lakh to allottees.

4. Somewhere in 2010 the allottees (respondents) in appeal at Sr. No.3 were looking for residential project to purchase two flats and learnt about subject project proposed to be constructed by the developer. The sales representative of the developer gave a brief description of the subject project and also assured that the project will be completed and possession of respective flats booked by prospective buyers shall be handed over by December 2014.

5. Relying on the aforesaid representation and assurances, the allottees booked two flats bearing Nos.1905 and 1906 on 19th floor in building No.20 admeasuring 628.09 sq.ft. each for a total consideration of Rs.1,04,20,856/-. The consideration for each flat is Rs.52,70,4281-. On 74.7.20tt, a registered agreement for sale came to be executed between the parties and thereby developer committed to hand over possession of the flats to allottees on 31.12.2014 with a grace period of one year i,e. latest by 31.12.2015. Allottees have paid Rs.92,51,188/- to developer against total consideration of Rs.1,04,20,856/- i.e. almost 90olo of total consideration. Despite making 90o/o payment towards cost of subject flats, the developer failed to complete the project and deliver possession of the subject flats to allottees on the promised date. Therefore, allottees have filed complaint and sought following reiiefs -

(a) To direct the developer to pay compensation and/or interest on account of delay in possession as per provision of Section 18 of RERA

(b) To direct the developer to adjust the interest amount payable by developer to allottees against the balance amount and other charges payable by allottees to developer.

6. The developer appeared in the complaints and remonstrated the claim of allottees. The defence of the developer, which emerged from the impugned order and other material on record is that the complaints are not maintainable because agreements had been registered under the provlslons of I4OFA Act. The project was a pad of Rental Housing Scheme of |.4MRDA having a total number of 25 buildings wlthin the jurisdiction of Mira Bhayandar I'4unicipal Corporation in Thane district. The construction work of the project started after obtaining commencement certificate in 2010 and is going on in phase-wise manner. Under Clause 29 of agreement for sale executed between the parties agreed date of possession with grace period was December 2016. The said Clause also provides that the date of possession could be extended, if the project got delayed due to nonavailability of steel/construction material, war, civil commotion or any other act of God, any notice/order/rule/notification of the Government/MBl.4Clpublic a uthority/Cou ftffribu na l, economtc downturn or any event beyond the control of the developer or force majeure etc.

7. The developer has fufther contended that the project could not be completed due to foliowing reasons -

(1) Due to economic downturn/crises the flats could not be sold in the market and hence, they could not generate required funds for construction purpose.

(2) There was undue delay in availability of sand on time for construction of the said project as the sand mining was banned in all coastal regulated areas across the state of Maharashtra. Even quarrying of stone was simultaneously banned in the entire State by the Environmental f.4inistry which resulted into non-availability of stone for construction as per the order passed by the Hon'ble High Court in PIL No.138 of 2006. The said ban was lifted only in the month of February 2014 by the order of National Green Tribunal

(3) The State Environmental Impact Assessment Authority (SEIAA) was not provldlng any clearance for stone quarry and had stopped rssurng permrssron for stone-crushing units.

8. It is further contended that since the project was ongoing the developer registered project with lvlahaRERA and revised the date as 31.12.2019 for completion of project. Since the project got delayed, the developer is ready and willing to refund the amount paid by the allottees till date wlth interest.

With these contentions, the developer prayed to dismiss the complaints.

9. Considering submissions made by respective parties, the learned Authority held developer liable to pay interest on account of delay in possession with effect from 1.5.2017 till actual date of possession. For better understanding and appreciation of the view taken by the Authority and directions given pursuant thereto, the relevant part of the order is reproduced as under -

"9) In this regard, the MahaRERA further feels that after the commencement of the provisions of RERA, which came into effect on 1.05.2017, the home buyers are entitled to claim interest under Section 18 of the RERA for the delay till the possession of the flat is handed over Accordingly the complainants have shown their willingness to accept the interest for the delayed possession from 1.05.2017 i.e. the date when the RERA came into force.

10) In the light of these facts, the MahaRERA directs the respondent to pay simple interest to the complainants on the money paid by them from lst May 2017 till the actual date of possession at the rate of Marginal Cost Lendlng Rate (MCLR) of SBI plus 2o/o as prescrrbed under the provisions of Section 18 of the RERA and the Rules made there undet

11) With regard to the possession of the flat to the complainants with occupation certificate, the MahaRERA feels that the respondent promoter is bounded by the revised date of completion mentioned in the MahaRERA registration

12) With above directions, the complaint stands disposed of'l

10. Aggrieved by the fact that other reliefs of compensation and costs are not awarded as desired, allottees in appeal at Sr. No. 1 have filed appeal. Feeling aggrieved by the observations of the Authority that the reasons cited by the developer for the delay in completion of project do not give any plausible explanation and thereby awarded interest to allottees for delay in possession, the developer has preferred appeals at Sr. Nos. 2 & 3.

11. We have heard Adv. Ms. Vimal Khandare for allottees in appeal at Sr. No.1, Adv. Mr. Bishwajeet Mukherjee for allottees(respondents) in appeal at Sr. No.3 and Adv. Mr. Sushant Chavan for developer.

12. To justify the claim of allottees, learned Adv. Ms. Vimal Khandare for allottees submitted as follows -

(i) The impugned order is based upon incorrect appreciation of facts, The learned Authority has failed to consider that as per agreement for sale, the developer was supposed to hand over possession of the subject flat by 31st December 2014 with grace period of one year. Once agreed date of possession has passed, allottees are entitled to enforce their rights under Section 18 of RERA. The learned Authority ought to have awarded interest from 1.1.2016 on the amount paid by allottees. However, the learned Authority has ordered respondent to pay interest from 1.5.2017. Besides, the learned Authority has denied relief of compensation and also failed to award cost of the complaint to allottees

(ii) The learned Advocate has fufther submitted that Buitding No.1 of "DB Ozone" had been completed in 2017 and illegal fit out possession was also offered to allottees in 2017. The developer did not apply for occupation certificate. Therefore, allottees have suffered mental agony. The developer harassed allottees by not offering legal possession of the flat to them. The allottees have paid more than 90% of the flat costs and despite this, developer failed to hand over possession of the subject flat to allottees for more than 7 years.

(iii) After considering peculiar circumstances of the case, it was expected of learned Authority to grant compensation as sought by allottees. Apart from this, the iearned Authority has failed to direct developer to adjust the amount of interest against the balance consideration.

(iv) During the course of argument, the learned Adv. lvs. Vimal Khandare for allottees in appeal at Sr. No.1 has sorely submitted that now allottees have restricted their clatm to the extent of directions to developer to adjust the balance amount payable by aljottees towards consideration and other charges as per agreement for sale totajing Rs.5,02,95U- against the interest amount to be paid by developer. The allottees have abandoned rest of the reliefs claimed in the appeal

With these submisslons, the learned Advocate for allottees prayed that impugned order be modifled to the extent of adjustment of amount payable by allottees to developer against interest amount payable by developer to allottees.

13. To assail impugned order and to justif,/ the defence put forth by developer, learned Adv. Mr. Sushant Chavan for developer has sorely submitted that the impugned orders are based on incorrect appreciation of facts and law. The impugned orders are ex-facie illegal, contrary to the provisions of law, erroneous and contrary to the well settled legal principles and therefore, call for interference in the appeals filed by developer.

14. The learned Advocate has further submitted that in or around 2013 to 2014 due to scarcity of sand developer was unable to procure sufficient sand which caused maleficent to the construction work of the subject poect. Apart from this restrictions were imposed on stone crushing and due to new conditions imposed on stone mining activities by MPCB vide judgment dated 1.10.2013 passed in Application No.14 of 2012, the contractors/developers were unable to procure stones required for construction work which materially affected the construction work of the project

15. It is fufther submitted that various reports published by independent bodies evinced how economy slowdown in the country has affected Real Estate Industries. The subject project had also suffered due to slowdown of economy in the country. Demonetization declared by Government in 2016 led to slump in sales causing financial constraints to the developers. GST has also played similar role and therefore in view of force majeure factors, the developer was not in a position to complete project within stipulated perlod.

16. The learned Advocate further submitted that in 2016, with a view to complete the project, the developer initiated a transfer/sale of the adjacent plot situated in Dahisar, l.4umbai. However, few home buyers of building nos.31 to 35 filed complaint in Consumer Forum against the developer and by an order dated 26.10.20t6 the State Consumer Commission restrained developer from selling the said plot which caused irreparable damage to the developer and due to which the developer could not generate funds, as a result the developer could not complete project on the specifled date.

17. Adv. Mr. Sushant Chavan further submitted that "DB Ozone" project consists of 25 buildings and 8 rehab buildings to be handed over to IYMRDA. Since 2012 the said project has been suffering from loss due to slowdown of economy and non-availability of construction material. The reports of Auditors and balance-sheets clearly indicate that the subject project faced enormous force majeure factors. The aforesaid force majeure factors, mitigating circumstances and unforeseen reasons, which were beyond control of developer have not been considered by Authority while passing impugned orders. Considering all mitigating circumstances which had affected '.DB Ozone" project and in anticipation of future hurdles, the developer declared a revised possession date on lvtahaRERA poftal as 31.12.2019. Since the project was not completed on specified date, the developer again applied for extension of registration of the project and declared revised completion date as 30.12.2021. The developer completed RCC and Civil works of all 25 buildings. The developer has also completed internal flnishing work of all buildings. As on date the developer has handed over flt out possession to 2389 allottees out of 3279 allottees.

18.The learned Advocate has further submitted that in or around December 2019 - January 2020, there was global outbreak of corona virus (Covid-19), The notifications and circulars issued by Central and State Governments and also by World Health Organisation (WH.O.) and other competent authorities clarified that outbreak of Covid-19 is a natural calamity. The learned Authority ought to have considered the same in relation to the Interpretation of force majeure Clause appearing in the Manual for Procurement of Goods, 2017. It is not in dispute that the Central as well as State Government declared Nationwide and State wide lockdown and thereafter extended it from time to time. Therefore, the developer had no option but to temporarily suspend all construction activities. The impact of outbreak of Covid 19 was on entire nation and it also disturbed economy of entire nation. Covid- 19 pandemic has adversely affected regular development of Real Estate Projects. Therefore, it attracts invoking provisions of ..force majeure". Apart from this the pace of construction/completion of project was also getting affected by shortage of labourers. The skilled labourers and workers were primarily belonging to other States. Due to Covid 19, they returned to their respective States. Even after lifting of lockdown by Government, the labourers did not return to project sites, Once again, the developer invoked force majeure Clause and applied for extension of project registration till December 2022 and the same is pending for approval before MahaRERA.

19. It is fufther submitted that the learned Authority did not take into consideration the fact that the developer had lost period of 48 months due to various reasons beyond his control. Apart from this, in view of Clause 29 of the Agreement for Sale, time is not the essence of contract. The developer has relied upon the judgment of Hon'ble Supreme Court in Smit Chand Rani Vs. Kamal Rani [(1993)1 SCC 5191 in which it has been held by the Hon'ble Apex Court that in the case of sale of immovable property, time is never regarded as the essence of the contract. The learned Authority has failed to appreciate that agreement for sale, which is valid, binding and subsisting as on date between the parties, was executed in 2011 during MOFA regime and therefore provisions of RERA are not applicable to the transaction executed between the parties. The learned Authority neglected and ignored findings rendered by the Hon'ble Bombay High Court in Writ Petition No.2737 of 2OL7 that the provisions of RERA are prospective in nature. The learned Authority tried to implement Section 18 of RERA in line with the Section B of MOFA which is against the ratio and dictum laid down by Hon'ble Bombay High Court, Apart from this, Section 8 of MOFA does not provide the interest option if the allottee wishes to stay/ continue in the project.

20. The learned Advocate for developer has invited our attention to para-6 of the impugned order and strenuously submitted that the Authority while considering force majeure factors pointed out by the developer for delay happened in compteting project has observed that those factors have been discussed in detail by MahaREA while passlng orders in the earlier complaints filed by other allottees of the same project. This prima facie shows that the learned Authorify did not consider force majeure factors pointed out by developer and passed impugned orders on the ground of parity. Thus lt can be said that the impugned orders are not reasoned orders and cyclostyled orders are passed by the Authority. Therefore, impugned orders do not sustain in the eyes of law.

21. It is further submitted that Clause (b) of Section 8 of tvtOFA gives further period of 3 months if force majeure factors still exist. The provislons of RERA soon after coming into force, the developer registered project and revised completion date as 31.12.2019. Therefore, it can be said that no cause of action for allottees had arisen for filing complaints. The learned Authority misinterpreted provisions of MOFA and RERA and arrived at a wrong conclusion that allottees are entitled to interest on account of delay in possession. The learned Authority has failed to consider that agreement being governed by the provisions of MOFA, the developer in terms of Section 8 of MOFA had already made offer of refund of amount with 9olo interest per annum to allottees. Apart from this, the learned Authority has no jurisdiction to try, entetain and dispose of the complaints filed by allottees. Clause 9 of Model Form of Agreement provides a forum to resolve the dispute between allottees and promoter. It means the parties consciously decided to avail remedy and forum available under Arbitration. The said clause indicates that the disputes whether specified in Section 8 have been satisfied or not will be referred to the competent Authority who will act as an Arbitrator. In view thereof, allottees ought to have exhausted statutory remedy first, Therefore, it can be said that MahaRERA as well as this Tribunal have no jurisdiction to try entertain and dispose of the complaints and appeal filed by allottees.

22. It is further submitted that allottees are investors, They have invested in the subject flat to reap profits on their investment. The copy of complaint No.CC06000000079241clearly evinces the fact that allottees are active investors and they are using RERA to reap returns in the form of compensation and interest, The learned Authority has failed to appreciate that the developer is making bonafide efforts to complete the project and imposition of penalty, awarding interest and compensation to allottees in individual cases would defeat the very purpose of RERA to ensure completion of projects for the larger benefit of all the allottees in the project and it would also drain the funds of the developers.

With these submissions, the jearned Adv |.4r. Sushant Chavan for developer has prayed for dismissal of appeal filed by allottees and further prayed to allow appeals filed by the developer with cost.

23. Disagreeing with the contentions of the developer, and while justifying the impugned order to have been correcuy passed to the extent of grant of relief of interest, the learned Adv. I,4s. Khandare has strenuously submitted that developer has completed building in 2077 and has given possession to other allottees without occupation certiflcate, but developer is purposely avoiding to obtain occupation certificate and to give legal possesston of the subject flat to allottees. Since 2014 the allottees have been fighting for legal possession ofthe subject flat. Since "DB Ozone" poect is ongoing project, the developer registered it with MahaRERA. The RERA, 2016 is a beneficial legislation. Section 18 of RERA protects rights of gullible home buyers and provides relief of interest, refund of amount with interest and compensation to allottees if developer fails to hand over possession of the subject flat by specified date.

24. The learned Advocate has further submitted that once developer failed to hand over possession of the flat on agreed date, allottees are entitled to enforce their rights under section 1g of RERA. Allottees have unqualified rights to seek interest on the amount paid upon failure of developer to give possession by specified date, In view of law laid down by the Hon'ble Supreme Court in M/s Newtech Promoters and Developers pvt. Ltd. Vs. State of U.p. & Others [CivilAppeal Nos,5745, 6749 and 6750 to 6757 of 2021], the allottees have absolute right to claim interest for the delayed possession under Section 18 of RERA.

25. The learned Advocate has further submitted that the reasons put forth by developer such as scarcity of sand, economic down turn, ban on stone crushing, nation-wide lock down because of Covid19 etc., are baseless. The developer being expert in the open market, ought to have assessed likely timelines for completing the project and provide possession date accordingly. This being no concern of the allottees, they cannot be held responsible or liable for any delay to suffer adverse effect in view of delay.

26. Succinct of argument of Adv. Mr. Bishwajeet Mukherjee for allottees (respondents) in appeal at Sr. No.3 is that as per agreement for sale the date of possession was 31.12.2014 with further extension of one year, but till date the developer has not handed over possession of flats which makes it delay of more than 7 years. The payment of terrace slab was made on L7.L2.2012 as per demand letter dated lL.t2.20t2 which goes to show that the terrace slab was completed and only electrical, plumbing and painting work was required to be completed. This delay has caused a lot of inconvenience to the allottees as they have invested all their life savings and now are residing in rented premises and paying monthly rent of Rs.35,000/- which causes more financial burden on them. The developer vide email dated 27.7.2016 communicated to allottees that possession of the subject flats shall be delivered on 31.8,2017. However, despite making promise, time and again developer failed to adhere to his promise

27. The learned Advocate has further submitted that main contention of the developer is that due to economic downturn/crisis the developer had no buyers to purchase flats in their projects which made it difficult for developer to generate required funds for construction, It is fufther contention of the developer that delay occurred due to nonavailability of sand for construction as sand mining was banned in Costal Regulatory Areas across the State of Maharashtra. The State Environment Impact Assessment Authority is not providing any clearance for stone quarry and has stopped issuance of permission for stone crushing units. The aforesaid grounds and litigation against developer on some other land do not fall under the ambit of force majeure and are not valid grounds for delaying the completion of project. The events that purportedly prevented developer from completing project on time as pointed out by the developer were already existing/foreseeable at the time of entering into agreement for sale, The same are therefore no grounds for not handing over the possession of the subject flat.

28. The learned Advocate has further submitted that restriction/ban on mining activities was imposed in 2007 and was released in 2014. The developer was aware of the same much prior to entering into agreement for sale with allottees. The allottees had booked subject flats and entered into agreement for sale in the year 2011. The developer was well aware of these restrictions and despite this he assured to deliver possession of subject flats by December 2014. The developer has failed to produce valid evidence to prove that he was unable to procure sand in adequate quantity.

29. The learned Advocate has further submitted that force majeure clause means and includes ..an unexpected event that prevents someone from doing something written and agreed to in the contract" and the most important ingredient in the concept of force majeure is that the "events should not have been foreseeable at the time ofentering into the contract". Therefore, the reasons such as non_ availability of sand, economy downturn, shortage of stone were all foreseeable at the time of entering into agreement with allottees. The construction of project is still not completed in its entirety and the project has not yet received occupation certficate" Since the project has been immensely delayed, the developer on false grounds sought extension of two years from MahaRERA and agreed to complete the project by 3L.L2.20t9 and the extension was granted by MahaRERA. However, the developer failed to deliver possession until 2019 as promised and sought further extension of two years i.e. until 2021" The developer again failed to adhere to his commitment and sought further extension from MahaRERA. This clearly shows that the developer is purposefully delaying the project on account of his own defaults and shortcomings.

With these submissions, the learned Advocate prayed to dismiss the appeal filed by developer with costs.

30. After considering the submissions advanced by the learned Advocates for respective parties, material on record and pleadings of the parties, following points arise for our consideration and we have recorded flndings thereupon for the reasons to follow -

POINTS FINDINGS

(1) Whether allottees in appeal at Sr. No.1 are entitled to reliefs sought in the Partly entitled appeal

(2) Whether developer has established ground to warrant interference in the impugned order In the negative

(3) What order As per flnal order

REASONS

31. On careful examinatton of pleadings of the parties, submissions advanced by learned Counsel for parties and material placed on record by the parties, it is clear that controversy raised in the complaints filed by Allottees falls within the purview of Section 1g of RERA, which provides an option to Allottees to seek interest on the amount paid by them in case there is delay in delivering possession of the flats by the date specified in the agreements. Allottees claimed that they booked flats in the project of Developer somewhere in the year 2010. Agreements for sale came to be executed between the parties on 27.07.2070 and 14.02.2011 whereby Developer committed to handover possession of the subject flats to Allottees by 37.72.20t4 with a grace period of one year i,e. latest by 31.12.2015. It is not in dispute that the Allottees have paid substantial amount towards the cost of the subject flats which is almost 90o/o of the total consideration, Despite this, Developer had failed to deliver the possession of the subject flats to Allottees on the specified deed. Allottees have filed complaints and vide impugned orders dated 21.08.2019, the learned Authority recognized right of the Allottees under RERA and held them entitled to interest on the amount paid by them, however, failed to direct the Developer to adjust the amount of interest payable by Developer to Allottees against the balance amount and other charges payable by Allottees to Developer,

32. It is specific defense of Developer that the force majeure factors, mitigating circumstances and unforeseen reasons, which were beyond control of Developer have not been considered by learned Authority while passing impugned orders. However, on considering the impugned order in its entirety, it appears that the learned Authority had taken into consideration the force majeure factors while passing the impugned orders.

33. According to Developer the reasons such as paucity of sand, ban on stone mining and slow down in the economy were unforeseen reasons and beyond the control of the Developer. Therefore, there is no liability of Developer to make payment of any interest or compensation to allottees. It is not in dispute that ban on mining activities was imposed in 2007 and was released in 2014. It is not in dispute that the Allottees had booked their flats in the project of the Developer in the year 2010 and executed agreements for sale in 2010 and 2011. It means the Developer was well aware of these restrictions and despite the same entered into an agreement with Allottees and assured to deliver the possession of the subject flats by December, 20t4. It is significant to note that it is specific contention of Allottees (Respondents) in Appeal at Sr. No, 3 that the payment of terrace slab was made on t7.12.2012 as per the demand letters dated 11.t2.2012 which goes to show that terrace slab was completed and only electrical, plumbing and painting work was required to be completed. It is pertinent to note that the Developer has not denied this specific contention of the Allottees (Respondents) in Appeal at Sr. No.3. Therefore, it is difficult to digest that paucity of sand caused maleficent or hurdle to the construction work of the subject project

34. It is the contention of Developer that consldering all mitigating circumstances which had affected "DB Ozone,, project and in anticipatlon of future hurdles, the Developer declared a revised possession date on MahaRERA portal as 3t.L2.20t9. It is fufther contention of the Developer that since the project was not completed on specifled date the Developer again applted for extension of period of the project and revised completion date as 30.12.2021. The aforesaid contentions of Developer itself are sufficient to show that the Developer has failed to adhere to his obligations to handover the possession of the subject flat to Allottees even as per revised possession dates. The due date of handing over possession of flats is fixed by the Developer after ascertaining all favorable and unfavorable circumstances for completing construction of the project and post compliance i.e. for obtaining occupation certificate, So Developer is required to fix due date in anticipation of such adverse circumstances to complete the project. The explanation ofFered by Developer for not completing the project within stipulated period does not appeal to us. Even if it is taken for granted that there were genuine reasons which were beyond the control of Developer, we are of the view that the Developer is not entitled to get benefit of the same for the reasons that the same are not attributable to the Allottees nor is the case of the Developer that Allottees in any way caused delay in possession. It has been held by the Hon'ble Bombay High Court in Neelkamal Realtors Suburban Pvt, Ltd. & Anr. Vs, Union of India & Ors. [(2017) SCC Online Bom 9302] that being expert in the open market, promoters ought to have assessed the likely timelines for completing the project and provide the possession date accordingly. This being no concern of Allottees, they cannot be held responsible or liable for any delay to suffer adverse consequences in case of delay. on consideration of the stated reasons for delay we do not find the same attributable to Allottees,

35. Developer also indlcated Covid 19 as one of the reasons for delay which appears to be farfetched considering that possession date of 31.12.20014 with grace period of one year i.e. 31.12.2015 as agreed was long over when the pandemic of Covid 19 broke out in 2020. It is not in dispute that since the project is ongoing the Developer registered it with MahaRERA and declared a revised possession date on MahaRERA poftal as 3L.12.20t9. It is not in dispute that the Developer failed to handover possession of the subject flat to Allottees on 3t"12.20L9. Therefore, the ground of Covid 19 also is not sustainable as the same happened much after the expiry of admitted dates of possession. We therefore give no weightage to the delay, if any, caused due to the above factors.

36. It is held by the Hon'ble Supreme Court in para 25 of M/s Newtech Promoter and Developers pvt. Ltd V/s. State of Uttar Pradesh [Civil Appeal Nos. 5745, 6749 and 6750 to 6757 of ZO2t] that Allottees are entitled to reliefs under Section 18 of RERA if the delay is not attributable to them. The Hon'ble Apex Court has held as under -

"25. The unqualified right of the allottee to seek refund referred under a and I 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 ofthe Court/Tribunal, which is rn 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 prolect, he shall be entiiled for interest for the period ofdelay till handing over possession at the rate prescribed."

37. It is peftinent to note that the Developer failed to complete the project within timeframe i.e. on 31.t2.20t4, 31.L2.20t5, 31.12.20L9 and 31.12.2021, It is specific contention of Developer that once again Developer invoked force majeure clause and applied for extension of project registration till December, 2022 and the same is pending for approval before MahaRERA. The above mentioned facts clearly indicate that Developer has miserably failed to adhere to his obligation to handover the possession of the subject flats to Allottees on the specified dates. Section 18 of RERA spells out the consequences, if Promoter fails to complete or is unable to give possession of an apartment, plot or building either in terms of the agreement for sale or to complete the project by the date specified therein on account of discontinuation of his business as a Developer either on account of suspension or revocation of registration under the Act or for any other reasons, the allottee/ homebuyer holds an unqualified right to seek refund of the amount with interest at such date as may be prescribed in this behalf. The Allottee, if he does not intend to withdraw from the project, wlll be required to pay interest by the Promoter for every month's delay in handing over possession at such rate as may be prescribed. The Promoter is thus under obligation to pay interest as per impugned order till handing over possession of the flat to allottees,

38. The next contention of the Developer is that learned Authority has no jurisdiction to try entertain and dispose of the complaints filed by Allottees. Clause 9 of Model Form of agreement provides a forum to resolve dispute between the Allottees and Promoter. The pafties consciously decided to avail remedy and forum available under arbitration. In view of clause 9 of l4odel Form of agreement, Allottees ought to have exhausted statutory remedy first and therefore MahaRERA has no jurisdiction to try entertain and dispose of the complaints. We do not find substance in the contention of Developer. Pafties have produced on record copies of agreements for sale, on examination of the same we do not find such clause in these agreements. The said clause of Model agreement not being part of the executed agreements cannot be enforced. Apaft from this we are of the view that Allottees have indefeasible right to ciaim relief of interest or refund of amount with interest under Section 18 of RERA. It is a statutory right which cannot be defeated or taken away by consent of parties and for exercising such right available forum is only I4AhARERA.

39. It is specific contention of Developer that Allottees are investors. They have invested in the subject flats to reap profit of their investment. We do not find substance in the said contention. Section 2(d) of RERA deflnes "Allottee". So far as subject matters are concerned, Appellants in Appeal at Sr. No. 1 and Respondents in Appeal at Sr. No. 3 do fall within the ambit of definition of "Allottee". Apart from this developer has not produced cogent material to substantiate his contention that Allottees are investors. Therefore, for the foregoing reasons we have come to the conclusion that the impugned orders dated 21.08.2019 passed by learned Authority do not cail for interference in the Appeals.

40. We would like to reiterate here that during the course of argument, Adv. Ms, Vimal Khandare appearing for allottees in appeal at Sr, No.1 has submitted that allottees have restricted their claim to the extent of directions to Developer to adjust interest amount payable by Developer to allottees against the balance amount and other charges payable by Allottees to Developer at the time of delivery of possession of subject flat. She has further submitted that allottees have abandoned rest of the reliefs claimed in the appeal at Sr. No.1.

41. For the foregoing reasons and after considering the submissions advanced by Adv. Ms. Vimal Khandare appearing for allottees in appeal at Sr. No.1, we are of the view that if directions as sought by allottees are given to the developer, no prejudice will cause to the developer. We therefore proceed to pass the following order -

ORDER

(i) Appeal Nos. 4T006000000052367 is party ailowed" The developer is directed to adjust interest amount payable to allottees against balance amount and other charges payable by allottees at the time of delivery of possession of flat.

(ii) Appeal Nos. 4T006 000000041901 and AT006000000041893 are dismissed

(iii) The Developer is directed to pay cost of Rs.20,000/- to Allottees.

(iv) A Copy of this judgment be sent to the parties and MahaRERA as per Section 44(4) of RERA, 2016,