Shriram R. Jagtap, Member (J)

1. This appeal emanates from the order dated 20th February 2020 passed by learned Chairperson, MahaRERA in Complaint No. CC006000000089747 filed by allottees (original complainants) to raise grievances that impugned order has not satisfactorily granted the reliefs as sought by appellants in their complaint.

2. Appellants and respondent will hereinafter be referred to as 'Allottees' and 'Developer' respectively.

3. The facts, which are necessary for disposal of the present appeal, are that the developer launched a project by name "India bulls Savroli-1" situated at Khalapur. To attract the allottees the developer depicted rosy picture of the project by representing that the project has remarkable features that developer will provide Golf course with 12 holes and Club-house admeasuring 50,000 sq.ft. The Allottees succumbed to the allurement of developer and booked an apartment bearing No. 401-C in the subject project of the developer for total consideration of Rs. 1,17,00,000/- (Rupees One Crore Seventeen Lakhs Only) and made part payment of Rs. 17,00,000/- (Rupees Seventeen Lakhs). The developer promised to hand over possession of the subject flat by February 2018. However, the developer unilaterally changed/revised date of possession to 28th February 2019 on MahaRERA Project Registration web-page. Even after the revised date of possession, the developer had failed to complete the project. Moreover, all amenities more particularly Golf course with 12 holes and Club-house as promised are not provided. The developer has failed to adhere to the commitments and therefore the allottees by email dated 6th March 2019 intimated the developer that they have cancelled the booking and asked developer to refund the amount paid by them together with interest. Allottees by several oral communications asked the developer to comply with its statutory obligation. However, the developer has failed to reply to the same.

4. Thereupon, allottees filed the complaint and in reliefs, the directions were sought to developer viz. (i) to pay compensation of Rs. 5 lakhs to complainants for not providing amenities, (ii) to refund the amount paid by the complainants with interest from 2nd July 2014, (iii) to pay maximum penalty as per the provisions of RERA and (iv) to pay Rs. 1,00,000/- (Rupees one lakhs only) towards cost of the litigation.

5. The defence of the developer which emerged from the impugned order is that developer had asked allottees to come forward to execute and register the agreement for sale on various occasions, however, the allottees have failed to do so. The subject flat is still available for possession and the developer is willing to execute and register the agreement for sale in respect of subject flat. The developer has further contended that in case allottees want to cancel booking, then such cancellation must be guided by Clause 16 of the booking form (i.e. application for provisional reservation) as no agreement of sale has been executed between the parties. It was further contended that brochure relied upon by the allottees is not issued by the developer, but by third party and therefore the allottees cannot claim misrepresentation by the developer.

6. After hearing the parties, the learned Authority passed the order under challenge in this appeal. For convenience, the relevant part of the order is reproduced as follows:-

"In view of the submission of the learned counsel for the Respondent that the said apartment is still available and the Respondent is willing to execute and register the agreement for sale for the same, the Complainants are advised to execute and register the agreement for sale as per the provisions of Section 13 of the Real Estate (Regulation and Development) Act, 2016 and the rules and regulations made thereunder within 30 days from the date of this Order.

In case, the Complainants are still firm on their decision to cancel their booking and their intention to withdraw from the said project, then refund, if any, shall be guided by the terms and conditions of the booking form.

Consequently, the matter is hereby disposed of."

7. We have heard Adv. Mr. Manish Gala for allottees and Adv. Mr. Nirman Sharma for developer.

8. Learned counsel for allottees while assailing impugned order has invited our attention to the impugned order and submitted that impugned orders dated 24th December 2019 and 20th February 2020 are illegal, perverse and unsustainable in law. He further argued that to lure home buyers, the developer has represented allottees that project has unique features. The developer will provide Golf-course and Club-house admeasuring 50,000 Sq.ft. The allottees succumbed to said representation and booked flat in the respondent's project for consideration of Rs. 1,17,00,000/- and made part payment of Rs. 17,00,000/- to the developer. The developer issued receipt dated 2nd July 2014 to allottees. At the time of booking of the said flat, the developer promised to hand over possession of the subject flat along with occupation certificate on or before February, 2018. The developer registered the project with MahaRERA wherein promised date of possession was mentioned as 1st July, 2017 which was unilaterally extended to 28th February, 2019. The developer failed to complete the project within stipulated period and therefore allottees vide email dated 6th March 2019 informed the developer that they have cancelled the booking and asked developer to refund booking amount with interest.

9. It is further argued that it is not in dispute that despite repeated extensions granted to the subject project, the developer failed to obtain occupancy certificate for the said project upto 31st March 2021 and the possession of the subject flat was offered to allottees for the first time on 4th May 2021. However, impugned order traversed beyond the scope of complaint without appreciating the facts and incorrectly recorded in paragraph 5 of the impugned order that developer had obtained part occupancy certificate of the buildings in which contained the subject apartment on 11th January, 2018, much before the complaint has been filed. The learned Authority incorrectly recorded in the order that part occupation certificate has been obtained prior to email dated 6th March 2019 sent to developer for cancellation of subject flat. These observations would clearly indicate that the impugned order came to be passed without application of mind.

10. Adv. Mr. Manish Gala for appellants has sorely submitted that when there is no delivery period stipulated in the document then promoter is expected to hand over possession within a reasonable period and period of three years is a reasonable time. It is not in dispute that allottees have booked flat in June 2014, therefore, developer was supposed to hand over possession of the subject flat to appellants by June 2017. The allottees cannot be made to wait indefinitely. Admittedly there is no agreement specifying the date of possession, but the developer mentioned the date of possession on MahaRERA portal as 1st July 2017. The developer in his reply for the first time admitted that the developer has received part occupation certificate on 31st March 2021. The developer has violated the provisions of RERA. Under sub-section 3 of Section 11 of RERA, the developer is obliged to discharge any other obligations imposed under the Act of 2016 and in the event of failure thereto would be liable to pay compensation. Appellants have placed their reliance on following citations:-

(1) Prakash Corporates Vs. Dee Vee Projects Ltd. [Judgment dated 14th February 2022 of Hon'ble Supreme Court in 1318 of 2022].

(2) K. Sulaiman Vs. K.P. Nafeesa [Judgment dated 18th November 2021 of Hon'ble Kerala High Court in R.C. Rev. 144 of 2021].

(3) M/s. Essjay Erriccson Private limited Vs. M/s. Frontline (NCR) Business Solutions Pvt. [Order dated 10th January 2022 passed the Hon'ble National Company Law Tribunal in Company Appeal (AT Insolvency) 936 of 2021.

(4) H.S. Goutham Vs. Rama Murthy & Anr. [Hon'ble Supreme Court in Civil Appeal No. 1844 of 2010 dated 12th February 2021.

(5) Mangesh Tukaram Sawant Vs. M/s. Sailee Developer [Maharashtra Real Estate Appellate Tribunal in Appeal No. AT006000000052755 dt. 10.12.2021].

(6) Nadakerappa since deceased by LRs & Ors. Vs. Pillama since deceased by LRs & Ors. [31st March 2022 passed by the Hon'ble Supreme Court in civil Appeal Nos. 7657-7658 of 2018.

(7) Bhavini Chirag Shah & Anr. Vs. Neminath Construction & Anr. [Judgment dt. 01.04.2021 by Maharashtra Real Estate Appellate Tribunal in Appeal No. AT 006000000031722].

(8) Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Ragahvan [Supreme Court judgment dt. 02.04.2019 in Civil Appeal No. 12238 of 2018.]

(9) Ireo Grace Real Tech. Pvt. Ltd. Vs. Abhishek Khanna. [Judgment dt. 11.01.2021 passed by Hon'ble Supreme Court in Civil Appeal No. 5785 of 2019].

(10) M/s. Dosti Corporation Vs. Sea Flama Co. Op. Housing Society. [Judgment dt. 07.04.2016 passed by Hon'ble Bombay High Court in Appeal from order No. 117 of 2016].

(11) Shekhar R. Prasad Vs. Moongippa Realty Pvt. Ltd. [Judgment dt. 28.01.2021 passed by Maharashtra Real Estate Regulatory Authority in CC006000000044128 & CC0060000000181957].

(12) Judgment dt. 25.03.2022 passed by Maharashtra Real Estate Appellate Tribunal in Appeal No. AT006000000053065-53066.

(13) Sahyog Homes Ltd. Vs. Arif Yakub Ansari [Judgment dt. 27.7.2020 passed by Maharashtra Real Estate Appellate Tribunal in Appeal No. AT006000000021325 of 2019].

(14) Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra. [Judgment dt. 25.03.2019 of Hon'ble Supreme Court in civil appeal No. 3182 of 2019].

(15) Fortune Infrastructure Vs. Trervor D'Lima [Judgment dt. 13.03.2018 by Hon'ble Supreme Court in Civil Appeal Nos. 3553-3554 of 2017.

(16) Mrs. Shikha B. Ganguli Vs. Bhupesh Babu Karappan Niliparambil. [Judgment dt. 22.07.2021 passed by Maharashtra Real Estate Appellate Tribunal in Appeal No. AT006000000052848].

(17) Shree Shakun Realty Pvt. Ltd. Vs. Mr. Vijay Solanki [Judgment dt. 16.02.2021 passed by Maharashtra Real Estate Appellate Tribunal in Appeal No. AT006000000021263].

(18) Sridhar Krishna Mani & Anr. Vs. Lucina Land Developer Ltd. [Order dt. 19.04.2022 passed by Maharashtra Real Estate Appellate Tribunal].

(19) Bombay Dyeing Vs. Ashok Narang [Judgment dt. 30.08.2020 passed by Hon'ble Bombay High Court in Second Appeal (st.) No. 4996 of 2020].

(20) M/s. Newtech Promoters And Developer Pvt. Ltd. Vs. State of U.P. & Ors. [Judgment dt. 11.11.2021 passed by Hon'ble Supreme Court in Civil Appeal Nos. 6745-6749 of 2021].

(21) Mr. Harpreet Singh Jasjit Singh Tibb Vs. Sylvanus Properties Ltd. [Judgment dt. 2.2.2022 passed by Maharashtra Real Estate Appellate Tribunal in Appeal No. AT006000000010950].

11. Since developer has failed to hand over possession of the subject flat within stipulated period and even after revised date of possession, indefeasible right to claim refund of amount paid together with interest has accrued to appellants. With these submissions Adv. Mr. Manish Gala for appellants prayed to grant reliefs in terms of prayer clause of the appeal and complaint.

12. An abridgment of arguments of learned Advocate Mr. Nirman Sharma for developer is that there is no basis on which the allottees are claiming the date of possession as February 2018. Allottees have failed to produce any document which indicates that agreed date of possession is February 2018. Parties have executed application for provisional reservation dated 30th June 2014. Except this document, no other document is executed by the parties. A careful examination of application for provisional reservation would show that the date of possession shall be the date of intimation of grant of occupation certificate, and this date governs the parties until execution of agreement for sale. This is the only date of possession which is committed by the developer. Parties are governed by terms and conditions contained in the application for provisional reservation dated 30th June 2014 owing to allottees' deliberate failure to execute and register agreement for sale. There is email communication between allottees and developer to that the developer promised to deliver possession of subject flat by 31st May 2021.

13. Learned Adv. Mr. Nirman Sharma has vehemently submitted that allottees have availed of a 10:90 subvention Scheme, whereby the allottees were to pay only 10% upfront and the balance 90% on possession. Since the booking was made much prior to coming into force of the RERA, law did not require the developer to execute and register agreement for sale until 20% of the consideration is received. After registration of project with MahaRERA, accordingly in terms of requirement of Section 13 of the RERA the developer called upon allottees to execute and register the agreement for sale on 30.09.2018, 02.02.2019, 30.07.2020, 09.09.2020, 06.01.2021, 11.05.2021 and 12.05.2021. Though allottees had, as per terms of booking form, agreed to execute and register the agreement for sale when called upon, they failed to do so, and thereby allottees have violated the provisions of Section 4 of MOFA and Section 13 of RERA.

14. It is further argued by the developer that according to allottees the developer promised to deliver the possession of subject flat in 2018 but, the allottees did not take action by filing any proceedings when the said date had passed. The allottees only raked up the entire belated case of delay in possession after approximately 17 months after alleged possession date of February 2018 had passed. It is further contended that the allottees have specifically pleaded in para-4 of the appeal memo that they have invested in the subject fiat for earning rental income. The allottees are seeking an exit since they are losing out the rental income. This conduct of allottees clearly indicates that the allottees are certainly not genuine home buyers, but investors who are now taking the advantage of the provisions of RERA to make return on investment.

15. It is further argued that after receipt of occupation certificate, the developer called upon the allottees for registering the agreement for sale and also offered possession of the subject flat. However, the allottees did not come forward to execute agreement for sale. Moreover, the allottees failed to make payment of final installment of Rs. 1,17,92,291 to developer and thereby deliberately breached the provisions of Section 19(6) of the RERA which require the allottees to make final payment. Section 19(10) of RERA mandates every allottee to take possession within two months on receipt of occupation certificate.

16. Adv. Mr. Nirman Sharma has strenuously submitted that allottees have no grievance till respondent asked them to execute agreement for sale. By email dated 6th March 2019 the allottees expressed their desire to withdraw from the project for no reason. The project is complete in all respects. The occupation certificate is received by developer. Why allottees are not ready to take possession is not explained by allottees. Allottees in fact never intended to execute sale agreement by paying final installment and unceremoniously and unilaterally cancelled the booking to claim refund of the amount without offering any valid reasons therefor. Learned counsel has placed his reliance on the following citations:

(1) Ashok Kapil Vs. Sana Ullah (Dead) & Ors. (1996) 6 SCC 342] [LQ/SC/1996/1575] .

(2) Sachin Patil Vs. Manish Khandelwal [Order dt. 20.11.2017 passed by Maharashtra Real Estate Regulatory Authority].

(3) National Thermal Power Corporation Ltd. Vs. M/s. Ashok Kumar Singh & Ors. [ (2015) 14 SCC 252].

(4) Union of India Vs. N. Murugesan & Ors. : 2021 (4) SCT 287 (SC)].

(5) Pioneer Urban Land and Infrastructure Ltd. & Ors. Vs. Union of India & Ors. 2019 (8) SCC 416] [LQ/SC/2019/1229] .

With the above submissions Adv. Mr. Nirman Sharma has submitted that appeal be dismissed with costs.

17. We have given thoughtful consideration to the submissions advanced by learned counsel for respective parties. On consideration of the pleadings of the parties, documents relied upon by the parties and impugned order, following points arise for our consideration:

Sr. No, Points for determination Findinqs.

(1) Whether complainants/allottees are entitled to relief as prayed for par y yes. due to delay in possession

(2) Whether impugned order calls for interference in the Appeal In the affirmative

(3) What order As per final Order.

18. We answer the aforesaid points as above for the reasons to follow:

REASONS AND CONCLUSION

19. The allottees have sought relief of refund of amount together with interest primarily on two grounds viz. (i) delay in delivering possession of subject flat and (ii) not providing amenities i.e. (a) Golf course with 12 holes and (b) Club-house admeasuring 50,000 sq.ft.

20. It is not in dispute that allottees have booked subject flat on 30th June 2014 and made part payment of Rs. 17,00,000/-. It is also not in dispute that no agreement for sale has been executed by the parties. According to appellants the developer promised to deliver possession of subject flat by February 2018, whereas according to developer the date of possession was the date of intimation of grant of occupation certificate and this date governs the parties until execution of agreement for sale.

21. For the purpose of working out the date of delivery of possession, any other documents such as allotment letter, brochure, pamphlets, email communications etc. specifying the date of possession can be considered in the absence of formal agreement for sale executed by parties. Only document i.e. application for provisional reservation dated 30th June 2014 is placed on record by the developer for the purpose of working out the date of possession. However, there is no mention of specific date of delivery of possession of subject flat in the said application. We are, therefore, of the view that this document does not help in determining promised date of possession of the subject flat.

22. When the date of possession is not specifically mentioned in the application for provisional reservation dated 30th June 2014 and there is no other document on record to demonstrate the specific date of possession, then in that case, the date of completion of project mentioned on MahaRERA Project Registration website is to be upheld. It is not in dispute that after coming into force of RERA 2016, the developer has registered the project with MahaRERA wherein the respondent promised to complete the project by 1st July 2017, It has been held by the Apex Court in a case M/s. Fortune Infrastructure (now known as M/s. Hicon Infrastructure) & Anr. Vs. Trevor D'Lima & Ors. [Civil Appeal Nos. 3533-2534 of 2017 dated 13th March 2018] that "moreover a person cannot be wait indefinitely for the possession of the flat allotted to them and they are entitled to seek refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of the case, a time period of three years would have been reasonable for completion of contract i.e. possession was required to be given by last quarter of 2014."

23. It is not in dispute that allottees have booked flat on 30th June 2014. In the light of the above ratio laid down by the Hon'ble Supreme Court, the date of possession can be deciphered to be 1st July 2017, which is also mentioned on MahaRERA Project Registration website by the developer and therefore we are of the considered view that the date of delivery of possession of the subject flat was 1st July 2017.

24. It is not in dispute that the period of limitation to complete the project was extended to 28th February 2019 by MahaRERA. Despite extension, the developer failed to complete the subject project. It is also not in dispute that allottees by email dated 6th March 2019 informed the developer that they have cancelled booking and asked the developer to refund the booking amount with interest on account of delay in possession.

25. It is not in dispute that the developer has completed project and obtained occupation certificate for the subject project on 31st March 2021. The developer has not offered explanation for delay in completing the project. The due date of handing over possession of subject flat is fixed by the developer after ascertaining all favourable and unfavourable circumstances for completing construction of the project and post compliance i.e. for obtaining occupation certificate. So the developer is required to fix due date in anticipation of such adverse circumstances to complete the project. We reiterate here that the developer has not offered explanation for not completing the project within stipulated period.

26. Section 18(1) 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 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 the registration under the Act or for any other reason, the allottee/home buyer holds an unqualified right to seek refund of amount with interest at such rate as may be prescribed in this behalf. If the allottee does not intend to withdraw from the project, he will be paid interest by the promoter for every month's delay in handing over possession at such rate as prescribed.

27. It is now settled law that if the delay is not attributable to allottees, they are entitled to claim relief provided under Section 18 of RERA. In this regard, it would be appropriate to reproduce the observations made by the Hon'ble Supreme Court in para 25 of the case of M/s. Newtech Promoters & Anr. Vs. The State Of Uttar & Others [Civil Appeal Nos. 5745, 6749 and 6757 if 2021] hereunder:

"25. The unqualified right of the allottee to seek refund referred under Section 18(1)(a) and Section 19(4) of the Act is not dependent on any contingencies or stipulations thereof. It appears that the legislature has consciously provided this right of refund on demand as an unconditional absolute right to the allottee, if the promoter fails to give possession of the apartment, plot or building within the time stipulated under the terms of the agreement regardless of unforeseen events or stay orders of the Court/Tribunal, which is in either way not attributable to the allottee/home buyer, the promoter is under an obligation to refund the amount on demand with interest at the rate prescribed by the State Government including compensation in the manner provided under the Act with the proviso that if the allottee does not wish to withdraw from the project, he shall he entitled for interest for the period of delay till handing over possession at the rate prescribed."

28. As per MahaRERA Project Registration website, the developer committed to complete the project on 1st July 2017. However, in spite of extension of the said period from time to time, the developer failed to complete the project within reasonable period and thereby failed to hand over possession of the subject flat to Allottees, Therefore Allottees are entitled to refund of amount with interest on their investments under Section 18 of RERA.

29. Adv. Mr. Nirman Sharma for respondent has vehemently submitted that any exit by the Allottees from the subject project will entail huge loss to the developer as allottees have blocked the subject flat for last eight years and the developer has even in relative terms bore 90% amount out of total consideration for constructing the subject flat against the contribution of the allottees. Allottees' unilateral exit from the project when there is no violation of provisions of RERA on the part of the developer will entail forfeiture of the amount in terms of clause 16(c) of the application.

30. We do not find substance in the said submissions. We have already observed that the developer has failed to hand over possession of the subject flat to allottees by due date i.e. 1st July 2017 mentioned in MahaRERA Project Registration website. There is no express provision in the RERA, 2016 by which promoter is entitled to forfeiture of the amount in the event of cancellation of booking on the part of allottees especially when allottees are not at fault or instrumental in causing delay. Besides the Act is silent on the point of permissible deduction if allottee sou motu/unilaterally for whatsoever reason cancels booking. It is not in dispute that allottees have paid earnest money of Rs. 17,00,000/- to developer on 30th June 2014 and the developer has utilized the said amount since 30th June 2014 tilt completion of the project for his commercial purposes. Therefore were of the view that interest can be awarded to the allottees on their investment from 1st July 2014. After considering the overall circumstances of the case, we are of the view that allottees are entitled to refund of the amount paid together with interest without any deduction or forfeiture.

31. Therefore the appellants are entitled to interest only on the amount paid from 1st July 2014 till realisation of entire amount. For the foregoing reasons we have come to the conclusion that impugned order requires interference in this appeal. Consequently, we proceed to pass the following order:-

ORDER

i] Appeal No. AT006000000052611 of 2020 is partly allowed.

ii] Impugned order dated 20th February 2020 passed in Complaint No. CC006000000089747 is set aside.

iii] Promoter/Respondent is directed to pay interest @ State Bank of India's highest Marginal Cost of Lending plus 2% on the amount paid by the allottees from 1st July, 2014 till the realisation of the entire amount.

iv] Parties to bear their own costs.

v] Copy of this judgment be sent to both the parties and MahaRERA as per Section 44(4) of RERA.