1. Being aggrieved, Appellants have filed this appeal to challenge order dated 10.10.2019 passed by learned member, MahaRERA, (hereinafter referred to as 'the AuthorityJ whereby interest is granted to Allottees with w.e.f. 01.05.2017 and not from 01.04.2013 as prayed for in their complaint.
2. For ease of reference, Appellants and Respondents will be addressed as Allottees and Promoter respectively in this order.
3. We heard learned counsel appearing on behalf of the respective Parties.
4. It is contended by learned counsel for Allottees that possession of Flat No. 904 purchased vide registered agreement for sale dated 10.10.2012 was agreed to be delivered by 01.04.2013. Allottees submitted that despite having paid the entire amount of consideration of Rs. 27 lacs on execution of agreement possession is not handed over tlll date. Allottees contended that the only ground advanced by Promoter for delay in possession is that proposal/file submitted for granting permission to the project was burnt in the fire that took place in Mantralaya on 21.06.2012' Allottees argued that proposal was for own benefit of Promoter for undertaking additional construction from 16 floors onwards and had no concern with Allottees' flat located on the 9th floor. It is also contended that while agreelng to deliver possession on or before 01.04.2013 as per agreement executed on the 10.10.2012 Promoter was well aware of the fire incident that happened in Mantralaya on 21'06'2012' Allottees argued that in the circumstances date of possession specified in the agreement is binding' Allottees therefore contended that the alleged ground taken by Promoter is baseless and hence cannot be accepted as reason beyond control to justifY the delaY.
5. Allottees further argued that the Authority erred in accepting the unjustifiable ground as above for delay to decline reliefs sought by Allottees w'e'f' 01'04'2013 even though the same Authority had already granted interest w'e'f' 01.05.2014 vide order dated 05.03.2019 pursuant to complaint No. CC006000000056616 filed by an Allottee in the same project. Allottees contended that the Authority was not justified in taking a discriminatory view in respect of claim of Allottees. Allottees further submitted that Promoter has already handed over possession to all other allottees but possession is withheld with the intention to penalise them for having raised dispute against the Promoter.
With above submissions, Allottees sought to set aside the impugned order and to give directions to Promoter to hand over possession with interest @ t8o/o w'e'f' 01.04.2013 for delay and costs towards complaint and Appeal.
6. On the contrary, learned counsel for Promoter submitted in defense that redevelopment project was undertaken for plots bearing CS Nos. 1350 and 1351 at Hujuria Street, Mumbai. He submitted that the Municipal Corporation of Greater Mumbai (MCGM) erroneously declared Plot No. 1351 as Decessed property and granted construction permission upto 16 floors only, Promoter explained that as required, a proposal submitted for converting the Plot to Cessed property was sent to Mantralaya for approval' Referrlng to documents placed at Pages 248-249 Promoter submitted that the said proposal got destroyed due to fire in Mantralaya on 21.06.2012' It is contended that thereafter on receipt of government's approval Promoter applied for MHADA's NOC as required on 02.01.2016' Promoter submitted that on receipt of NOC, revised Intimation of Disapproval (IOD) for redevelopment of the Plots was granted by the MCGM on 26.06.2018. Promoter thus contended that in view of foregoing facts and circumstances of the matter, delay in possession is fully justified on account of reasons beyond control of Promoter and therefore the view taken by the Authority to grant interest w'e.f. 01'05.2017 by appreciating mitigating circumstances is legal and proper.
7. Further, opposing the submissions urged by Allottees regarding grant of relief w'e.f. 01.05.2014 in another complaint as mentioned in para 5 above, it is submitted that the said order was passed in the absence of Promoter's advocate. It is also argued that reliefs granted vide order dated 05.03.2019 were given up by the concerned Allottees in the order passed in Appeal by this Tribunal on 16.12.2019 on the basis of consent terms. Promoter also showed willingness to hand over possession however by paying interest w'e.f. 01.05.2017 as directed in the impugned order.
8. After hearing the parties and considering documents on record the only point that arises for our determination is whether impugned order can be held legally sustainable under Section 18 of RERA. Our answer to the point is in the negative for the reasons to follow.
9. Facts laid down before us as above, clearly reveal that Promoter has not been able to deliver possession by the agreed date 01.04.2013 as per clause 9 of the agreement. The sole defense of Promoter rests on the ground that delay in possession was caused as project proposal submitted to Mantralaya for approval was destroyed in the fire on 21.06.2012. It is claimed that the said event being beyond control of Promoter is reasonable enough to justify the delay in possession and hence the impugned order too. So, to answer the point for determination the issue that falls for our consideration is whether the ground as projected by Promoter is justifiable to condone the delay so as to sustain the impugned order as per law.
10. On examination of material on record it is observed that factors leading to submission of proposal to Mantralaya and the incident of fire on 2l'06'2012 are not of much relevance or consequence to help Promoter in justifying the delay as they preceded execution of agreement on 10.10.2012. The counting of period for possession actually starts from date of execution of agreement i'e 10'10'2012 and ends on the date of possession i'e 01'04'2013' Any intervening factor between the aforesaid dates only can be said to have an adverse effect on the timelines agreed for possession for considering condonation of delay in possession, if any. No such eventuality as taking place during the intervening period is brought to our notice by Promoter for justifying or condoning the delay in possession.
11. In the above backdrop, as rightly argued by Allottees, Promoter was well aware about the destruction of its proposal in the fire on 21.06,2012 at the time of executing agreement for sale on 10.10'2012. However, despite knowledge Promoter agreed to deliver possession by 01.04.2013 and therefore Promoter now cannot turn back on its commitment in the absence of any sufficient reasons made out to do so. It is further observed that though factors subsequent to expiry of date of possession are also to be regarded as equally inconsequential and irrelevant for condoning delay, if any, it appears that no diligent efforts are made by Promoter to handover possession even after lapse of more than 8 years from the due date for possession. Hence, we find no convincing reasons to accept contentions put forth by Promoter for condoning the delay and to uphold the impugned order.
12. We also find substance in the contentions of Allottees that in the similar set of facts and circumstances and in the same project the Authority has already granted interest from 01.05.2014 in its order dated 05.03.2109. Argument by Promoter that the concerned Allottees gave up their claim in Appeal does not merit any consideration for the reason that the matter in Appeal was disposed of on the basis of consent terms and not on merits. Resultantly the view taken by the Authority in the said matter is not rendered irrelevant for holding that equitable treatment was denied to Allottees herein even though their similarly placed complaint was decided subsequent to passing of order dated 05'03.2019.
13. For the above reasons, we conclude that the delay ln possession is not justifiable on account of any reasons beyond control of Promoter and therefore Allottees are entitled to relief of interest under Section 18(1) of RERA for delay from the agreed date of possession. In the result, the impugned order cannot be sustained in the eyes of law and therefore deserves to be set aside. We answer the point accordingly and pass the following order.
ORDER
i) Appeal No. 4T006000000041896 of 2019 is allowed.
ii) Order dated 10.10.2019 passed in Complaint No' CC006000000057154 of 2018 is set aside.
iii) Respondent is directed to pay interest @ State Bank of India's highest Marginal Cost Lending Rate plus 2olo to Allottees w.e.f. 02.04'2013 till handing over actual possession.
iv) Respondent to pay costs of Rs. 25,000/- to Allottees.
v) Copy of this judgment be sent to the Authority and parties as per Section 4a() of RERA, 2016.
