Sumant M. Kolhe, Member (J)

1. Appeal is directed against the order dated 17th September, 2018 passed by learned Chairperson of MahaRERA in Complaint No. CC006000000055491.

2. In brief the facts are as under.

Appellants are Allottees. Respondent is Promoter. "Wintergreen" of Rivali Park situated at CCI Compound, Western Express Highway, Borivali is the project launched by Promoter in the year 2012. Allottees have booked flat No. 34-B in 'A' wing of the said project. Approximately the flat admeasures 1298 sq.ft. Agreed price of the flat is Rs. 1,48,73,782/-. Allottees agreed to purchase and Promoter agreed to sell the flat on certain terms and conditions. Promoter issued allotment letter on 19th November, 2012 in favour of Allottees. Promoter agreed to handover possession of the flat on or before February, 2016 as per the clause 18 mentioned in the allotment letter. Allottees have paid Rs. 1,16,31,498/- from time to time as per schedule of the payment agreed between the parties. Allottees have accordingly paid almost 78% of the amount of the price of the flat to Promoter. Project was delayed. Promoter revised the date of possession up to March, 2018. Promoter further extended the date of possession up to December, 2018. RERA came into force on 1st May, 2017. As the project was incomplete, Promoter registered the project with MahaRERA and Promoter has shown the date of delivery of possession as 31st December, 2019. Project is delayed for almost three years and ten months. Promoter has failed to deliver possession and to complete the project as per agreed terms. Promoter has also failed to provide facilities and amenities as mentioned in the allotment letter. Allottees decided to withdraw from the project. Allottees have demanded the refund with interest from the Promoter. Allottees have filed Complaint No. CC006000000055491 before MahaRERA Authority for refund with interest.

3. In an inquiry of the Complaint before MahaRERA Authority, Promoter contended that due to some genuine reasons beyond his control, delay has occurred in completion of the project and in handing over possession. It was also contended by Promoter that Allottees were informed to execute the agreement for sale from time to time but they failed to do so.

4. After hearing both the sides and after considering the documents on record, the learned Chairperson of MahaRERA passed impugned order on 17th September, 2019.

Para 3 of the impugned order reads as under:

"In view of the above facts, if the Complainants wish to withdraw from the project, the Respondent shall refund the amount paid by the Complainant as per terms and conditions of the booking letter."

Para 4 of the impugned order reads as under:

"Alternatively, if the Complainants intend to continue in the said project, the parties are directed to execute and register the agreements for sale, as per the provisions of Section 13 of the Real Estate (Regulation and Development) Act, 2016 and the rules and regulations made there under within 30 days from the date of this Order. The Respondent shall handover the possession of the apartment, with Occupancy Certificate, to the Complainants before the period of December 31, 2019."

In view of the above mentioned para 3 and 4 of the impugned order the Complaint is disposed of.

5. Allottees preferred this Appeal against the impugned order. After hearing both sides, single member bench of this Appellate Tribunal partly allowed the Appeal by passing order on 20th March, 2019 and directed Promoter to refund the amount with interest to Allottees. Allottees filed execution proceeding to recover the refund with interest as per order of Appellate Tribunal. Promoter preferred second Appeal and challenged the order dated 20th March, 2019 before Hon'ble Bombay High Court. By consent, order dated 20th March 2019 is set aside and Appeal is remanded back for fresh hearing by bench of two members consisting Judicial and Administrative member. Accordingly, this Appeal is before us after remand.

Allottees have challenged propriety, correctness and legality of the order in this Appeal. We have heard the learned counsel for Allottees and learned counsel for Promoter. We have gone through the written submissions and compilation of case law filed by Promoter and Allottees.

6. Following points arise for my determination.

POINTS

i) Whether impugned order is just proper and legal

ii) What Order

7. My findings on the above points for the reasons stated below are as under.

FINDINGS

i) Negative,

ii) As per final order.

REASONS

8. At the outset I would like to point out that Allottees have claimed following reliefs in the Complaint:

i) The Authority may please order the Respondent to refund the entire consideration amount received by him i.e. Rs. 1,16,31,498/- along with the interest at the rate of 18% per annum from the date of payment till the date of refund.

ii) Cost to the suit.

iii) Any other remedy this Hon'ble Court deems fit.

9. Now, impugned order is passed by MahaRERA Authority. In view of para 3 and 4 of the impugned order as mentioned in para 4 above and Complaint is disposed of.

10. It is revealed from impugned order that it is not in accordance with the reliefs sought by Allottees in the Complaint.

11. Impugned order is not specific and clear. It cannot be ascertained from the impugned order as to whether the reliefs sought by Allottees are granted or rejected. Neither Promoter nor Allottees can execute such impugned order which is not clear.

12. Thus, considering the reliefs sought by Allottees in the complaint and the nature of the impugned order in disposing of the complaint, it can be easily said that the impugned order is not proper and correct.

13. Details of transaction between Promoter and Allottees with material facts are as under.

Application for booking the flat was accepted in October, 2012 where as allotment letter was issued in November, 2012. As per clause 18 of Allotment letter, possession was to be handed over by February, 2016. As per clause 19 of the allotment letter, Promoter is liable to refund the amount with interest @ 9% p.a. on demand, if Promoter fails to give the possession as per agreed date and charge of amount will be kept on the land of the project. Total price of the flat is Rs. 1,53,49,342/-. Allottees paid 78% of the price of the flat i.e. Rs. 1,16,31,498/-.

Promoter issued several e-mails and letters to Allottees to execute agreement for sale. Those were issued in February 2014, April 2015, September 2015, December 2015, July 2016, June 2017, August 2017, February 2018 and March 2018. Promoter informed the Allottees by issuing letter in the month of April 2015 that project was delayed due to changes in development control regulations and for other reasons. Promoter informed the Allottees by the said letter that fit out possession will be given on December, 2017 and final possession will be given by March 2018. In march 2017 Promoter informed Allottees by letter that date of handing over possession is revised and possession will be given by December, 2018. In the month of June, 2017 Promoter informed Allottees by letter about revised payment schedule. Installment due for the month of June, 2017 was revised to March, 2018 and last 5 % payment to be made by March 2018 was to be paid at the time of possession. In the month of July, 2017 Promoter issued the receipt of "VAT amount" to Allottees. In the month of August, 2017 Promoter registered the project under Section 3 of RERA and revised the date of completion of project up to December, 2019. Promoter issued letter to Allottees in the month of August, 2017 and informed that endeavour would be made to give possession by December, 2018 and called upon Allottees to execute the agreement for sale. In the month of December, 2017 Promoter demanded payment of installment with service tax by e-mail. In the month of June, 2018 Allottees informed Promoter by letter that possession is already delayed and payment made by Allottees to Promoter is blocked and Allottees are not liable to pay 5 % transfer fees. In the month of March, 2018 Promoter informed Allottees that agreement for sale uploaded on RERA website cannot be amended and further informed the Allottees to execute the agreement. Lastly, Allottees filed Complaint in the month of July, 2018.

14. From the above mentioned material facts, it is revealed that Promoter has failed to give possession as per due date to Allottees and Allottees demanded the refund and Promoter is liable to refund the amount along with interest as per Section 18 of RERA as Allottees decided to withdraw from the project.

15. According to Promoter, agreement for sale has not taken place between Allottees and Promoter and therefore Section 18 of RERA is not attracted to the present dispute. Promoter has made out the case that allotment letter is not the agreement for sale under RERA. Promoter has contended that allotment letter was executed under provisions of Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA) and remedy lies only before Competent Authority under MOFA. On the other hand, Allottees have submitted that allotment letter is as good as agreement for sale and Section 18 of RERA is attracted. According to Allottees they have filed the Complaint under provisions of RERA and their Complaint is maintainable under RERA. Allottees have made out the case that MOFA is not repealed by RERA but RERA is in addition to MOFA and Allottees are at liberty to approach any forum available to them.

16. Allottees have paid Rs. 1,16,31,498/- towards price of the flat to Promoter. Thus, Promoter received almost 78% of the amount towards the price of flat from Allottees. Promoter issued allotment letter on 19th November, 2012 in favour of Allottees. As per clause 18 of the allotment letter, Promoter agreed to handover the possession of the flat on or before February, 2016. Admittedly, project was delayed. Promoter extended date of possession initially up to March, 2018 and thereafter up to December, 2018. Promoter has shown the date of delivery of possession as 31st December, 2019 at the time of making the registration of the project with MahaRERA. Thus, Promoter has failed to deliver the possession and failed to complete the project as per agreed terms with Allottees. Admittedly, Allottees demanded the refund with interest as Allottees decided to withdraw from the project. Clause 19 of the allotment letter gives right to Allottees to demand the refund with interest from Promoter for breach of terms and conditions of the transaction. Project is governed by RERA. Rights and liabilities of Promoter and Allottees are also governed by RERA. If Promoter fails to give possession of the flat as per agreed date mentioned in the agreement for sale to Allottees, Promoter is under obligation to refund the amount along with interest to Allottees. Allottees are given statutory rights to withdraw from project under Section 18 of RERA and to claim refund with interest on account of failure of Promoter to handover possession of the flat as per due date agreed between parties. So, as per statutory rights as provided under Section 18 of RERA read together with clause 19 of the allotment letter, Allottees are entitled for refund with interest from Promoter.

On the point of agreement, I would like to point out as under. The agreement for sale is a contract whereby one party agrees to sell some property to another party at a future date subject to the terms and conditions mentioned in the agreement. The terms and conditions of the agreement usually contain the description of the property, sale price, time of sale, the conditions that need to be complied before and after the sale, any contingency, cancellation clauses etc. In ordinary course of nature, while buying a property people enter into the agreement with seller. Form and format of the agreement may be different.

"Allotment letter" issued by Promoter in favour of Allottees on 19th November, 2012 consists of 25 different clauses regarding terms and conditions of the transaction. Annexure - I attached with allotment letter shows the details regarding payment of schedule of the flat, whereas Annexure -II & III attached with allotment letter are regarding map and amenities to be provided by Promoter to Allottees in the said project. After carefully perusing 25 different clauses mentioned in allotment letter which is issued by Promoter in favour of Allottees, it is revealed that allotment letter is in respect of all the details of sale and purchase of the flat between Promoter and Allottee along with condition of period stipulated for handing over possession and manner of payment for price as per schedule. It can be easily said that Promoter and Allottees entered into the agreement for sale and purchase of the flat in the project and accordingly executed the allotment letter which consists of terms and conditions of the transaction.

17. Submissions made by learned counsel for Appellant that there is no agreement for sale between Promoter and Allottees and Section 18 of RERA cannot be attracted for absence of agreement for sale in this matter is not acceptable and probable. In view of the above discussion we reiterate that admittedly transaction of sale and purchase of the flat has taken place between Promoter and Allottees and all the terms and conditions of the transactions which are required to execute the agreement for sale are duly mentioned in the allotment letter which is issued by Promoter in favour of Allottees. Hardly any term or condition is left behind by the parties while executing allotment letter which might be required to be added in the agreement for sale. In fact, allotment letter itself is the agreement for sale between the parties. Definition of the "agreement for sale" under RERA is given under Section 2(c) of RERA. It is an "agreement" entered into between Promoter and Allottees. Thus, the transaction for sale and purchase of the flat between Promoter and Allottees is evident from the agreement entered into between Promoter and Allottees as revealed from the allotment letter which consists of 25 different clauses of terms and conditions of the agreement.

We have to see spirit and intention of legislation behind enacting Section 18 for refund with interest in beneficial and social RERA. We cannot simply stress upon the title of the document of transaction to ascertain the exact nature of the transaction. It is necessary to peruse the different terms and conditions as evident from the document of transaction. Document of transaction which is styled as "Allotment letter" is agreement for sale and purchase between the parties. Intention of the parties as evident from terms and conditions of the transaction incorporated in document of transaction is important and substantial to decide nature of transaction and not the title of the document of transaction.

Project is registered under RERA. Rights and obligations of the parties are governed by RERA. Allottees have filed Complaint under Section 18 of RERA. Complaint is filed before Adjudicating Forum established under RERA as per provisions of Section 18 of RERA. MOFA is not repealed. However, RERA is in addition and not in derogation to MOFA. Parties are at liberty to choose any forum either under MOFA or RERA to redress their grievances. However, submissions made on behalf of Promoter that Allotment letter is executed under MOFA and remedy lies only before Competent Authority under MOFA and not under RERA is not correct and cannot be accepted. In fact, I do not find any force in these submissions in view of observations made by the Hon'ble Apex Court as under:

In Imperia Structure Ltd. V/s. Anil Patani, in the Hon'ble Apex Court as under:

"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 up to the Allottee to proceed either under Section 18(1) or under proviso to Section 18(1). The case of Himanshu Giri came under the latter category. The RERA Act thus definitely provides a remedy to an Allottee who wishes to withdraw from the project or claim return on his Investment."

"It is true that some special authorities are created under the RERA Act for the regulation and promotion of the real estate sector and the issues concerning a registered project are specifically entrusted to functionaries under the RERA Act. But for the present purposes, we must go by the purport of Section 18 of the RERA Act. Since It gives a right "without prejudice to any other remedy available', In effect, such other remedy is acknowledged and saved subject always to the applicability of Section 79."

18. Learned counsel for Promoter relied on case law reported in 2014 (1) Supreme Court case, (Civil 734) Hansa Gandhi V/s Deep Shankar Roy wherein the Hon'ble Apex Court observed that the letter of intent executed between parties is not the agreement and no right of specific performance accrued on the basis of letter of intent. Counsel for Promoter strongly submits that parties are not entitled for refund with interest as Section 18 of RERA is not attracted in the absence of agreement for sale as observed by the Hon'ble Apex Court in the above case law.

19. The ratio of above mentioned case law is not attracted to the present matter since the ratio arises out of different facts and circumstances. Suit for specific performance was filed on the basis of letter of intent. The Hon'ble Apex Court observed that right of specific performance cannot accrue on the basis of letter of intent in absence of agreement for sale. It cannot be ignored that the Hon'ble Apex Court has also laid down in the said case law that the purchaser is entitled to get back the amount paid towards advance of the price along with interest thereon from the owner of the property. So, even under letter of intent the transaction executed by the parties was accepted by the Hon'ble Apex Court at least to return the amount along with interest to the purchaser as right of specific performance cannot be granted to the purchaser in absence of agreement for sale in the above mentioned case law. So, in view of clause 18 and 19 of allotment letter, I am of the opinion that the allotment letter is binding on Promoter and Allottees and the transaction which is revealed from the allotment letter is of sale of flat by Promoter to Allottees as per the terms and conditions mentioned in the said allotment letter. So, the submissions made by the learned counsel for Promoter that Section 18 of RER Act, 2016 is not attracted to the present matter cannot be accepted.

20. Counsel for the Promoter also argued that Allottee have not made out a case of delay in handing over possession and accordingly argued before MahaRERA Authority. According to him, Allottees cannot argue for the first time in this Appeal before the Appellate Tribunal. On the contrary, counsel for Allottees argued that the Complaint filed by Allottees itself is for refund with interest on account of delay in handing over possession and there is reference in the impugned order that, if Allottees wish to withdraw from the project the Promoter shall refund the amount. I find force in submissions of Counsel for Allottees.

The learned counsel for Promoter raised second objection and argued that Allottees cannot raise the point in Appeal which was not argued before MahaRERA Authority. He relied on case law reported in " (1985)2 Supreme Court Cases 670 [LQ/SC/1980/491] Daman Singh Vs. State of Punjab" wherein the Hon'ble Apex Court observed that pleadings and grounds taken in Petitions and Memo of Appeal but not argued before the Court are not open. In fact, if we peruse the impugned order passed by learned Chairman of MahaRERA, it cannot be said that parties were not given opportunity of making their submissions before MahaRERA at the time of hearing of the Complaint. The learned Chairman of MahaRERA Authority might not have referred all the points raised by both the sides in his impugned order. However, that does not mean that the principle of natural justice was not followed by learned Chairman of MahaRERA while disposing of the said Complaint. So, the objection raised by learned counsel for Promoter is not sound enough to say that Allottees are demanding interest along with amount for the first time in the Appeal. It is true that in para 3 of the impugned order which speaks about return of amount as per agreed terms of Allotment letter, there is a reference of agreed terms and conditions between the parties as per allotment letter and the word "amount" is not accompanied by the word "interest". However, clause 19 of allotment letter is very clear on this point. There is specific mention of rate of 9% interest to be paid by the Promoter to the Allottees on the payment received from the Allottees in case of demand of refund of money by the Allottees on failure of the Promoter to deliver the possession as per the extended time limit. So, the impugned order for the refund of amount is as per agreed terms and conditions of allotment letter, then Clause 19 of the said letter is very clear on the point of refund of amount to the Allottees along with interest on failure on part of Promoter to hand over the possession as per agreed time limit. So above mentioned case law referred by learned counsel for Promoter is also not attracted to the present matter.

It is revealed from the impugned order that, Promoter was directed to refund the amount if Allottees wish to withdraw from the project. So, Allottees were given option of withdrawing from the project and such option of withdrawal is given only on account of delay in handing over possession. Submissions of counsel for Promoter that, Allottees have made out a case of delay in handing over possession for first time in this Appeal before Appellate Tribunal is not acceptable.

Let us see whether the interest on refund shall be as per Section 18 of RERA or as per clause 19 of "Allotment letter". I would like to point out that, Allottees have sought relief of refund with interest as per Section 18 of RERA. So, direction in the impugned order as seen from the para 3 that Promoter shall refund the amount as per terms and conditions of booking letter will not superside Section 18 of RERA. Allottees have sought the relief of refund with interest as per provisions laid down under Section 18 of RERA and not as per the terms or condition of refund as laid down in the booking letter.

21. Counsel for Promoter argued that Allottees have committed breach of their obligations and Allottees have deliberately avoided executing the agreement for sale though Promoter repeatedly informed the Allottees to execute the agreement for sale. According to him, Allottees are not entitled for remedy of refund with interest under Section 18 of RERA as they have committed breach of their obligation by not executing agreement for sale. I would like to point out that any breach of obligation on the part of Allottees cannot be accepted as ground to reject the remedy of refund with interest under Section 18 of RERA. Section 18 of RERA is itself clear and specific on the point that, Allottee may get refund with interest and compensation or only interest for delayed period of possession on proving the ground such as delay in handing over possession and failure to complete the project as per agreed terms on the part of Promoter. Promoter is at liberty to initiate appropriate legal action against Allottees on account of the breach of obligations committed by Allottees. However, Promoter cannot deprive the Allottees from exercising statutory rights under Section 18 of RERA for claiming refund with interest.

It cannot be ignored that Promoter failed to discharge obligation of giving possession as per agreed date and completing the project. Promoter ought to have completed the project and given the possession as per agreed date instead of repeatedly calling upon Allottees to execute and register the agreement for sale. Allottees are interested in possession as they paid almost 78% price of the flat to Promoter. So, Promoter was expected to complete the project and give the possession as per agreed date after receiving 78% of the price instead of repeatedly asking for execution and registration of agreement for sale. Once, Promoter promises to give possession on due date and Allottees are also under obligation to execute and register the agreement for sale as demanded by Promoter, there are reciprocal promises from both the sides. Under the contract Act, where there are reciprocal promises, each party has the option to perform his part of contract, but cannot insist option on other party performing, without performing his part of contract.

Thus, Promoter cannot insist Allottees to execute the agreement for sale unless Promoter performs his part of contract of completing the project and handing over the possession of the flat on or before due date to Allottees.

22. It is true that execution and registration of agreement for sale has not taken place between Promoter and Allottees. Section 13 of RERA restrain Promoter from accepting deposit and advance more than 10% of the price without first entertaining into the agreement for sale. Section 18 RERA gives statutory rights to Allottees to claim refund with interest and compensation on failure of Promoter to hand over possession as per agreed date. Section 4 of MOFA also restrain the Promoter from accepting deposit or advance more than 20% of the price without first entertaining into agreement for sale. Similarly, Section 8 of MOFA gives statutory rights to Allottees to claim refund with interest on failure of Promoter to handover the possession as per agreed date. Thus section 4 of MOFA is almost similar to Section 13 of RERA whereas Section 8 of MOFA is similar to that of Section 18 of RERA. It is pertinent to note that in Section 4 of MOFA and Section 8 of MOFA, "written and registered agreement" for sale is referred. However, in Section 8 of MOFA or Section 18 of RERA there is no reference that agreement for sale must be "written or registered". Thus, scope and spirit of the agreement for sale under Section 4 of MOFA and under Section 13 of RERA is different then under Section 8 of MOFA and under Section 18 of RERA. Concept of the agreement for sale under Section 8 of MOFA and under Section 18 of RERA must be given wider scope and liberal interpretation.

On this point the Hon'ble Bombay High Court has observed in G. Swaminathan V/s. Shivram Co-operative Housing Society and Ors. : 1983(2) Bom CR 548]

"... Not all sections of the Maharashtra Ownership Flats Act, however talk about the execution of such agreements... There is no reference to an agreement executed under Section 4 in Section 8 of the said Act. Section 8 is meant to give protection to persons who have parted with monies for the purchase of flats in the event of the Promoter not giving them flats as promised... There is nothing in the provisions of Section 8 which would indicate that this statutory charge is conditional upon the agreement being registered under Section 4... Moreover, there is no provision under the said Act to the effect that an agreement for sale which is not registered under Section 4 is void for all purposes."

Thus, it can be easily said from the ratio of the above case law that registration of agreement for sale is not condition precedent to seek remedy under Section 8 of MOFA and under Section 18 of RERA.

23. Learned counsel for Promoter argued that, Promoter revised the date of handing over possession of the flat from time to time for the reasons beyond his control. According to him, Allottees never disputed the extension of date of possession and Allottees made the last payment towards price of the flat in the year 2017 i.e. after the date of possession was revised. Counsel for Promoter argued that Allottees have accepted the revised date of possession by their own conduct (and Allottees cannot claim the relief under Section 18 of RERA) and Allottees are stopped from claiming the relief under Section 18 of RERA on the ground of delay in possession. It cannot be ignored that Promoter has unilaterally extended the date of possession initially up to March, 2018 and thereafter up to December, 2018. Promoter finally extended the date of possession up to December, 2019 while making registration of the project with MahaRERA as per proviso of RERA. Allottees and Promoter have not mutually extended the date of possession. It is unilateral act on the part of Promoter in extending the date of possession. As far as principle of estoppel is concerned, there is no trustworthy evidence to show that Allottees had voluntarily agreed for extension of the date of possession.

24. "Principle of waiver or acquiescence" is not applicable because acquiescence or waiver must be clear. Waiver is an intentional relinquishment of the right. There can be not "waiver" unless the person against whom the waiver is claimed has full knowledge of his right. So, submissions advanced on behalf of Promoter on the point of application for principle of estoppel and waiver is not acceptable.

25. Counsel for Promoter argued that the project is governed by "Swamih Scheme" of State Bank of India. According to him, State Bank of India caps has first priority charge or senior charge over the project bank accounts and any refund of money, under the provision of law or not contract is not permissible as it is against the object of completion of the project. The learned counsel for Allottees argued that Swamih Scheme is a matter of private arrangement between Promoter and it is lender and it not binding on Allottees in any manner. According to him, there is no specific clause in debenture trust deed under the scheme or in the sanction letter of State Bank of India which prohibits or defeat the statutory claim of refund of amount. According to him, there cannot be any such condition which will over ride statutory provisions. It is settled law that no contract can override the statute. I find force in the submissions made by learned counsel for Allottees. Swamih Scheme cannot defeat or deprive Allottees from enjoying their statutory right of refund with interest and compensation under Section 18 of RERA.

26. Counsel for Promoter argued that there was delay in completion of the project due to mitigating circumstances. I would like to point out that Allottees get statutory right to withdraw from the project once Promoter failed to handover possession as per due date or agreed date of possession. In such circumstances mitigating circumstances and genuine reasons due to which project cannot be completed or possession could not be handed over cannot restrain the Allottees from exercising option under Section 18 of RERA. Moreover, mitigating circumstance causing delay in completion of the project cannot deprive the Allottees to claim the refund with interest on account of failure of Promoter in giving the possession on the due date.

27. For the reasons stated above, impugned order is not just, proper and legal. We set-aside the order and allow the Appeal and answer the points accordingly.

[PER S.S. SANDHU, MEMBER (A)]

Perused the draft judgment as above by my learned brother. I entirely agree with the final conclusions arrived at by him. Without repeating factual details relating to the matter at length as already extensively covered in the draft judgment, I would like to express my views restricted to the material contentions raised by the parties in support of their respective claims.

28. Learned counsel for Allottees has primarily argued as follows:

(i) As Promoter has failed to deliver possession by February 2016 as per clause 18 of the Letter of Allotment (LOA), Promoter is obligated to refund the amount on demand by Allottees under clause 19 of the LOA. It cannot be disputed that Promoter continued to revise the possession dates to December 2017, March 2018, December 2018 and later to December 2019 as declared by Promoter on MahaRERA's portal while registering the project under RERA in August 2017. Delay is ascribed by Promoter to inter alia change in Development Control Regulations (DCR) and other hurdles as also communicated by Promoter in letter dated 15.04,2015. Promoter, while revising dates of possession though continued to insist for execution of Agreement for Sale (AFS), the draft thereof was never sent to the Allottees. Allottees, perused the draft AFS uploaded on MahaRERA portal and raised objections vide letter dated 24.01.2018, inter alia to the delay of more than two years ten months and an unreasonable clause added therein for 5% transfer fee contrary to the terms of LOA. Allottees filed complaint in July 2018 to seek refund with interest in view of inordinate delay already caused and further revision thereof unilaterally by Promoter. The Authority instead of granting the aforesaid relief under Section 18 of RERA, erroneously passed the impugned order directing the Promoter to refund the amount paid by Allottees without interest as per terms and conditions of booking letter or alternatively execute the AFS with the Promoter contrary to the Provisions of Section 18 of RERA which gives an absolute right to Allottees to withdraw from the project to take refund with interest and/or compensation on account of delay in possession. Instead of handing over possession by December 2019 with occupancy certificate (OC) as directed in the impugned order, Promoter has further extended the date of possession to December 2020 and the same is further extended to June 2021 vide certificate dated 22.01.2020.

(ii) Considering the delay of over five years as on date, Allottees have lost faith in the Promoter and are not desirous of continuing with the project for no default on their part. In such circumstances Allottees have statutory right under Section 18 of RERA to withdraw from the project and seek refund of their amount with interest. It would be manifestly unreasonable to make them wait indefinitely for possession beyond a reasonable period of three years as per the view taken by the Hon'ble Supreme Court of India in the cases of Fortune Infrastructure (Now Known as M/s. Hicon Infrastructure) & Anr. Vs. Trevor D'Lima & Ors.(2018) 5 SCC 442] [LQ/SC/2018/320] ; Pioneer Urban Land Infrastructure Ltd. Vs. Govindan Raghavan (2019) 5 SCC 725] [LQ/SC/2019/611] ; Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra and Wg. Cdr. Arifur Rahman Khan and Aleya Sultana & Ors. Vs. DLF Southern Homes Pvt. Ltd. (now known as BEGUR OMR Homes Pvt. Ltd.). Following primarily the ratio laid down in the aforesaid judgments, Allottees have been held entitled for refund with interest under Section 18 by this Tribunal in the judgments of Rohit Chawla Vs. M/s. Bombay Dyeing & Mfg. Co. Ltd. in Appeal No. AT006000000011016; Mrs. Amrita Kaur & Anr. Vs. East & West Builders & Ors. in Appeal No. AT006000000010977 of 2019; and APL Yashomangal Developers & Anr. Vs. Yashwant Dashrath Sawant & Anr. in Appeal No. AT006000000000245 of 2018.

The impugned order, being contrary to the provisions of Section 18 and the law laid down by the Hon'ble Supreme Court of India as above and accordingly in various judgments of this Tribunal, deserves to be set aside by granting reliefs to Allottees as prayed for in the complaint.

29. Per contra, learned counsel for Promoter opposed the grounds of challenge and reliefs sought by Allottees as follows:

(i) As recorded in the impugned order Allottees had sought refund only on the ground of non-execution of AFS. The issue of delay was never raised before the Authority. Therefore, this Tribunal has no jurisdiction to consider and adjudicate the issue of delay raised for the first time for considering refund with interest as held by the Hon'ble Supreme Court in Daman Singh and Others Vs. State of Punjab and Ors. (1985) 2 SSC 670]. Appeal accordingly is not maintainable.

(ii) Booking form and LOA are executed in the year 2012 during the MOFA period when RERA was not in operation. This Tribunal constituted under RERA has no jurisdiction to adjudicate disputes relating to transactions and documents pertaining to the MOFA period. In view thereof Allottees are required to approach the appropriate forum under MOFA for redressal of their grievances, if any.

(iii) Execution of AFS is necessary for specifying the date of possession without which no delay can be made out to attract provisions of Section 18 of RERA for considering reliefs of refund with interest and/or compensation. Despite several communications and reminders thereto Allottees neither responded nor executed AFS forwarded to them. In the absence of AFS reliefs sought by Allottees cannot be granted under Section 18.

(iv) Also, Allottees never raised issue of delay for execution of AFS nor filed any complaint with the Authority despite revision in possession dates communicated by Promoter vide letter dated 15.04.2015 and thereafter. In fact, Allottees continued to make payment till July 2017 evidenced in receipt dated 05.07.2017 for payment. Thus, Allottees have acquiesced to and accepted the revised dates of possession unconditionally by abandoning the original date of possession as mentioned in the LOA and therefore not entitled for reliefs under RERA. (v) Being investors, Allottees are interested only in return on their investment rather than executing the AFS and therefore as a hindsight to avoid payment of stamp duty and registration fees, Allottees raised objection for the first time only on 24.01.2018 in respect of delay and inclusion of clause for transfer fee in the draft AFS.

(vi) Delay in completion has been caused by mitigating circumstances including force majeure factors beyond control of the Promoter. Allottees have agreed for extension in period of possession on account of such factors as clearly prescribed under clause 18 of the LOA. Allottees cannot deny the same. Such factors entitling the Promoter extension in period of possession are listed as follows.

(a) Change in DCR and other hurdles as listed in Exhibit 'F' of Promoter's affidavit in reply caused delay in completion of the project. No dispute is raised about these mitigating circumstances though Allottees were regularly updated in this regard.

(b) Project ran into financial crisis as Indiabulls Finance backed out from advancing loan of Rs. 130 Cr. due to crisis in NBFC sector. To tide over the situation, Promoter had to obtain funds from SBI Caps under SWAMIH Scheme of Government of India for completion of real estate projects. Promoter is making all efforts to complete the project as the Authority has also granted extension up to June 2021 vide order dated 22.01.2020.

(c) Outbreak of Covid-19 and consequent lock down is a notified force majeure that led to stoppage of work from March 2020 till May 2020 at the site causing delay in project completion. Recognising this, the Authority has extended completion timelines by six months.

As held by the Hon'ble Bombay High Court in the case of Neel Kamal Realtors (supra), this Tribunal has the powers to consider the force majeure factors for moulding reliefs to grant extension in possession period in genuine cases like the present case where interests of 643 Allottees must be weighed against one investor seeking return on investment by misusing beneficial legislation of RERA. This Tribunal in Appeal No. AT006000000031507 in the case of Theme Projects Pvt. Ltd. Vs. Jitendra Shamdasani has observed that the Authority needs to take a compassionate view about delay not caused due to own fault of the developer. Accordingly, Promoter is entitled for extension in date of possession.

It is further submitted that considering the terms of Deed executed under SWAMIH scheme between Promoter and its lender, it may not be possible to implement order in Appeal, if any, for payment of refund with interest as any outgo under the scheme except for completion of project is impermissible. Also, allowing such a withdrawal would jeopardise the completion of project affecting adversely the need for homes of other 643 allottees staying with the project.

30. In rejoinder to the arguments of Promoter, learned counsel for Allottees submitted that each of the aforesaid contentions by Promoter being false, baseless and unwarranted are denied and hence not accepted. He contended that,

(i) Promoter has committed several violations of the provisions of RERA as follows.

(a) Despite having obligation under Section 18 Promoter did not complete the project and gave possession on the agreed date, extended the timelines unilaterally, misrepresented the date of possession and refused to refund the amount to Allottees with interest.

(b) By executing the Debenture Deed, Promoter created mortgage Inter alia on the project land without prior written consent of Allottees as well as prior approval of the Authority in violation of Section 15 of RERA.

(c) AFS uploaded on MahaRERA portal is not in accordance with model AFS under RERA including the clause for transfer fees contrary to the terms of LOA.

(ii) Contention of Promoter that Allottees raised the issue of delay in possession for the first time before the Tribunal is baseless. In the complaint filed by Allottees refund with interest was sought only on the basis of delay in possession. Allottees neither sought execution of AFS nor refund for non-execution thereof. Without prejudice to the aforesaid averment, it may be seen that it has been recorded in the impugned order that refund is sought as Promoter has failed to execute AFS and hand over possession of the apartment.

(iii) The contention of Promoter that since the LOA is executed under the provisions of MOFA and therefore Allottees cannot seek relief under Section 18 of RERA is raised not only for the first time during arguments but is also devoid of merits being contrary to the categorical findings of the Hon'ble Bombay High Court in Neel Kamal Realtors (supra). It is held in paras 135 and 304 therein that under the scheme of RERA, the adjudicatory mechanism is prescribed under one umbrella with intention to bring complaints of allottees before one Authority so that allottees do not have to resort to proceeding in different forums prior to registration of project in respect of agreement executed prior to registration under RERA and post registration. In the said judgment RERA is held to be to some extent retroactive or quasi-retroactive and is applicable to the projects ongoing/incomplete on the day RERA came into effect. Admittedly the present project is an ongoing project and therefore all provisions of RERA are applicable to this project. Accordingly, the LOA executed prior to RERA under MOFA and timelines prescribed therein for possession are enforceable under Section 18 of RERA.

(iv) By not executing AFS, Allottees have not committed any breach of Section 4 of MOFA and Section 13 of RERA as these Sections cast obligation on Promoter and not Allottees to execute AFS before receiving from Allottees an amount more than 20% and 10% respectively stipulated therein. Also, Promoter without complying with its own obligations of handing over possession as per terms of LOA and without addressing the concerns of Allottees could not compel them to execute AFS with one-sided clauses and unilateral extensions of time not acceptable to Allottees. In reciprocal promises, a party cannot insist on other party without performing its own part of the contract.

(v) Contentions of Promoter that Section 18 of RERA is applicable only if breach of timelines for completion/possession mentioned in the AFS is committed is contrary to the provisions of RERA and to the view held by the Hon'ble Bombay High Court as well as this Tribunal in their various judgments. AFS defined under Section 2 of RERA to be executed by the parties ought not be given a narrow interpretation as sought to be contended by Promoter as it would defeat the objective of beneficial legislation of RERA leaving the Allottees remediless to claim refund if possession is not handed over as per the date mentioned in LOA, booking letter etc. Section 8 of MOFA and Section 18 of RERA for their applicability do not contemplate execution of written and registered agreement contrary to what is envisaged under Section 4 of MOFA and Section 13 of RERA. As per the view taken by this Tribunal in the catena of cases, mere non-execution of agreement cannot be allowed to operate in favour of a Promoter who is not responsive to the cause of Allottees. Accordingly, provisions of Section 18 can be equally invoked in terms of oral or informal agreements executed by the Promoter such as booking letter/confirmation letters, LOA, correspondence etc. capable of being construed as an agreement as also held by this Tribunal in the judgment dated 31.12.2019 in the cases of Rohit Chawla and Ors. Vs. Bombay Dyeing & Manufacturing Co. Ltd. And other connected matters.

(vi) Allottees never acquiesced to or accepted the revised dates of possession. Objection was taken by Allottees vide letter dated 24.01.2018 raising inter alia the issue of delay and additional demand of Rs. 30 lacs towards instalment and taxes. Issue of draft AFS including clause of 5% transfer fees not being in accordance with RERA provisions was also raised. Ultimately complaint was filed in July 2018 seeking withdrawal and refund which itself shows no acquiescence of revised dates by Allottees. The receipt dated 05.07.2017 relied upon by Promoter to allege acceptance of revised date of possession is for payment of statutory tax liability and not towards consideration of the flat.

(vii) Since Allottees are not withdrawing from the project on their own accord but due to undisputed fact of default by Promoter to hand over possession on time, Allottees are entitled to withdraw from the Project under Section 18 of RERA to seek consequential reliefs. Promoter being a defaulting party cannot enforce clause 7 of booking letter and therefore direction in the impugned order to take refund subject to terms of the said clause is erroneous and cannot be accepted. Nor Allottees are obliged to execute AFS as they have decided to withdraw from the project due to inordinate delay in possession.

(viii) Contentions of Promoter that monies under the fund scheme can only be used for project completion and not for refund of monies of Allottees under provisions of RERA cannot be accepted. Terms of private agreement between Promoter and its lender are not binding on Allottees to deny refund of the amount for which Allottees are entitled under the statute of RERA, As per settled law, no contract can override the statue and any terms in a contract defeating the provisions of law are void to that extent under Section 123 of Indian Contract Act. Accordingly, Allottees' claim cannot be denied while enforcing the terms of funds scheme. The interim order dated 22.01.2020 passed by the Authority for extending date of possession is in respect of Allottees who sought interest for delay in possession and therefore not relevant to Allottees' who are seeking refund of amount with interest on withdrawal from the project.

(ix) Allottees are not investors as contended by Promoters. Allottees discharged their obligation of paying almost 80% amount till 2014 but decided to withdraw from the project only as Promoter instead of giving possession as agreed kept insisting for execution of AFS to extract more money. Moreover, as consistently held by this Tribunal in several cases, there is no concept like investor under RERA for accepting baseless contentions of Promoter on this point.

31. After considering the respective submissions of the parties and on perusal of documents the points that arise for consideration in this Appeal are (i) Whether allottees are entitled for reliefs as sought in their complaint and (ii) whether the impugned order is sustainable in the eyes of law. Findings in respect of these points are in the affirmative and in the negative respectively for the reasons discussed hereinafter.

32. Allottees are seeking refund and interest under Section 18 of RERA on account of delay by Promoter to deliver possession by February 2016, as agreed in clause 18 of LOA. In complaint the Authority has declined to grant reliefs and instead directed Promoter to refund amount as per the terms of the booking letter or to execute AFS by the parties. Appeal is accordingly preferred by Allottees being aggrieved.

33. Firstly, Promoter has contended that this Tribunal has no jurisdiction to adjudicate the dispute in the Appeal as the issue of delay was not raised before the Authority and the same is being raised for the first time in Appeal. On perusal of record, the issue of delay is seen to be central to the entire complaint and very clearly raised in the complaint itself. Allottees have mentioned therein in detail that the Promoter kept revising the dates of possession and thus failed to hand over possession by the date agreed as per LOA. Further, as rightly pointed out by Allottees this issue is also recorded in the impugned order. On conjoint reading of the second and third sentences of the opening para of the order it is made out without any doubt that Allottees have sought refund of amount (third sentence) as the Promoter has failed to execute the AFS and hand over possession (second sentence). Considering this no substance is found in the contentions of Promoter that issue of delay is raised first time in Appeal to hold the Appeal not maintainable.

34. Secondly, contention of Promoter that as the LOA is executed under the provisions of MOFA, the Authority and this Tribunal constituted under RERA have no jurisdiction to adjudicate dispute arising out of LOA. Consequently, it is contended that Allottees must approach the appropriate forum under MOFA for redressal of their grievance in terms of LOA. This particular contention raises a question of law regarding applicability of RERA to the contractual transactions transpired prior to RERA came into force in May 2017. However, it may be noted that this question pertaining to retroactive or quasi-retroactive application of RERA is no longer res Integra in as much as the Division Bench of the Hon'ble Bombay High Court in the Neel Kamal Realtors (supra) case, which has been subsequently followed in further judgments by various fora across the country including this Tribunal clearly sets out that on registration of the ongoing/ incomplete projects under RERA, provisions of RERA would equally apply to the transactions executed under MOFA i.e. prior to the RERA came into effect. As also rightly contended by Allottees, the aforesaid view is reiterated in paras 135 and 304 of the said judgment by holding that under the scheme of RERA, RERA intends to bring complaints of Allottees before one Authority and simplifies the process and therefore it will be unreasonable to expect Allottees to resort to proceeding in different forums prior to registration of project in respect of the agreement executed prior to registration under RERA and post registration. Considering the aforesaid observations, contentions of Promoter that this Tribunal lacks jurisdiction to adjudicate disputes relating to LOA executed under the provisions of MOFA cannot be accepted.

35. Thirdly, the contention of Promoter that by not executing AFS, Allottees have themselves breached their obligations under Section 4 of MOFA and Section 13 of RERA and therefore they are not entitled for equitable reliefs is found to be devoid of merits. On perusal of the said provisions, it is clearly seen that obligation thereunder is in fact cast on the Promoter to execute AFS before receiving amount more than 20% and 10% respectively from Allottees. Therefore, no breach on the part of Allottees as alleged is envisaged under these Sections.

Also, it is found that while insisting for execution of AFS in its various communications, Promoter has never sent the draft AFS for execution. Allottees also have denied receipt of AFS and they came across of the draft AFS that was uploaded only on the MahaRERA portal which they claim to be contrary to the model AFS under RERA. Having failed itself to comply with its own obligations to send draft AFS containing terms and conditions agreeable to both the sides as per LOA, Promoter cannot allege breach of obligations by Allottees to deny them equitable reliefs. Not only in this particular case, such tendency and practice is seen to be prevalent in the domain of real estate sector where Promoters keep insisting on Allottees to make payment of necessary instalments, registration charges and stamp duty under the pretext of facilitating the execution of AFS without actually sharing/ sending the draft AFS and thus keeping Allottees clueless about the nature of terms to be finally prescribed in the AFS. Considering the facts and observations as above relating to the instant matter, contentions of Promoters alleging breach by Allottees being untenable cannot be accepted.

36. Fourthly, there appears to be an analogous contention to the point discussed in para 35 above that since AFS is not executed for specifying the date of possession, Allottees are not entitled for reliefs under the provisions of Section 18. In this regard, this Tribunal has held the view in the catena of cases including the case of Rohit Chawla & Ors. (supra) cited by Allottees, that in the absence of formal AFS, for the purpose of making out delay reliance can be placed on the dates of possession mentioned in the documents such as booking letters, allotment letters, correspondence between the parties, brochures, etc. The Tribunal continues to maintain the said view and therefore holds that even in the absence of formally executed and registered AFS, Allottees would be entitled to reliefs under Section 18 based on any other documents such as LOA in the instant case mentioning the final date of possession for making out delay in possession.

Another part of the above contention of Promoter is that by not raising dispute about the issue of delay in all these years, especially since 15.04.2015, Allottees have acquiesced to the revised dates of possession. Allottees have denied this. In agreement with the observations hereinabove by my learned brother on the issue I find nothing to substantiate this contention of promoter as no express and conscious consent or agreement is executed by Allottees. In fact, they opposed the same in their letter dated 24.01.2018 and then by filing the complaint thereafter. The receipt 05.07.2017 referred by Promoter to claim Allottees' acquiescence is towards discharge of statutory obligations in any case cannot be termed as an acceptance of revised dates of possession until the same is consciously and expressly agreed to by Allottees by way of any documentary evidence. Consequently, contention of Promoter is found to be devoid of merits and hence not acceptable.

37. Fifthly, though made on the side lines of other arguments, another contention of Promoter that Allottees being investors did not want to execute the AFS to avoid payment of further instalments has no substance. The term investor, as rightly argued by Allottees, is nowhere defined under RERA nor Allottees can be regarded so merely for they reason that the sought refund on the ground of not handing over possession by promoter on the agreed date.

38. Sixthly, Promoter has opposed reliefs sought by Allottees on the ground that Promoter is entitled for extension in period of possession as the nature of factors for delay being beyond its control as mentioned in para 29 (vi) above are covered under clause 18 of LOA. On consideration of the said factors it is observed that much before the period of financial crisis and outbreak of Covid-19 cited by Promoter, there was already a delay of more than 3 years. Therefore, the aforesaid factors cannot be taken advantage of for the delay already caused and the Allottees would be entitled for reliefs under Section 18 even on the basis of the said delay. As regards the change in DCR and delay in according approvals by the Authorities, it is well recognised that being an expert in the market, Promoter must estimate the period for completion considering probable factors that may cause delay. Accordingly, no concessions can be granted in the period of delay to Promoter for the aforesaid reasons. It is also observed that Allottees' claim cannot be denied being in permissible under the pretext of terms of the funding scheme as neither Allottees were party to the said arrangements nor the said contractual arrangements executed without prior consent of Allottees can override the provisions of Section 18 of RERA statute to defeat entitlement of Allottees thereunder for refund and interest. Even otherwise, in cases where Allottees seek withdrawal from the project on account of delay, the factors even beyond control of a Promoter responsible for delay would not be of much significance for considering the reliefs to such Allottees under Section 18 of RERA.

39. In view of the above discussion and observations, it is seen that the Promoter had defaulted in handing over possession on the agreed date. Allottees are not found to have failed in complying with their respective obligations. In such circumstances, Allottees cannot be made to accept refund with interest by forfeiting 10% amount as per terms of booking letter as directed in the impugned order. Also, since Allottees are entitled under Section 18 of RERA to withdraw from the project on the ground of delay in possession, they cannot be directed to execute the AFS as per alternative directions in the impugned order. Accordingly, both the directions in the impugned order being unjustifiable and contrary to the provisions of RERA, the impugned order deserves to be set aside by allowing the Appeal. Points 1 and 2 are answered accordingly.

40. In the above premise, we pass the following order:

ORDER

i) Appeal No. AT00600000010841 is allowed.

ii) Impugned order dated 17th September, 2018 passed in Complaint No. CC006000000055491 is set-aside.

iii) Complaint No. CC006000000055491 is allowed as under:

a) Promoter shall refund the amount of Rs. 1,16,21,439/- (Rs. One Crore Sixteen Lakhs Twenty One Thousand Four Hundred and Thirty Nine) along with interest @ State Bank of India's highest Marginal Cost of Lending Rate plus 2% to Allottees within two months from date of this order.

b) Charge of the above amount shall remain on the booked flat till realisation of the amount.

c) Promoter shall pay Rs. 25,000/- towards cost to the Allottees and shall bear own costs.

iv) Copy of this order be sent to the Authority and both the parties as per Section 44(4) of RERA.