Obligation Of Allottee To Accept The Possession Given By Developer Within 2 Months; Appellate Tribunal Partially Modifies MahaRERA Order
By : Legal Era
Update: 2020-07-22 05:17 GMT
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The Maharashtra Real Estate Appellate Tribunal held that as per Section 19(10) of the Real Estate (Regulation & Development) Act, it is the obligation of allottee to accept the possession of flat within two months and partially modified an order passed by Maha RERA directing the promoter to pay interest for delayed period of possession of the flat on the total amount paid by the allottee...
The Maharashtra Real Estate Appellate Tribunal held that as per Section 19(10) of the Real Estate (Regulation & Development) Act, it is the obligation of allottee to accept the possession of flat within two months and partially modified an order passed by Maha RERA directing the promoter to pay interest for delayed period of possession of the flat on the total amount paid by the allottee to the promoter at the rate of 2% and promoter was also directed to pay additional cost of Rs.20,000.
The bench of Judicial Member Simant M Kolhe and Administrative Member SS Sandhu heard the appeal filed by promoters of the said property, Tharwani Constructions Pvt Ltd against the order of MahaRERA dated June 12, 2019 and modified the impugned order to the extent that the allottee is entitled to interest only for the delayed period of possession from July 2017 to August 2018 on the amount paid to the promoter.
The said project was launched at Ambernath (Suburb in Mumbai) and the allottee agreed to purchase and promoter agreed to sell flat in the project. Accordingly, the agreement for sale took place on January 25, 2016 between them and the promoter agreed to hand over the possession of the flat on or before June, 2017. However, the promoter failed to hand over the possession as per specified date.
The allottee filed a complaint under section 18 (return of amount and compensation) of RERA and prayed for interest on the delayed period of possession.
Occupancy certificate was issued by the competent authority on August 23, 2018. The promoter offered the possession of the flat to the allottee in September, 2018. Thereafter, allottee paid development charges in the month of October, 2018 to the promoter and maintenance charges in the month of January, 2019. Moreover, the promoter handed over keys of the flat to the allottee during the hearing and the allottee accepted the keys and asked for possession letter without any other condition.
Judicial Member Sumant Kolhe noted-
“At this stage I would like to point out that the promoter has performed his duty by offering possession of the flat immediately after receiving occupancy certificate. Moreover, it is also the obligation of the allottee as per section 19 sub-section 10 of RERA to accept the possession within two months. It appears that the allottee did not accept possession within the stipulated period of two months from the date of issuance of occupancy certificate. Once occupancy certificate is issued in August, 2018 and possession of flat was offered to the allottee in September, 2018, it cannot be said that there was delay in handing over possession on the part of the promoter after receiving occupancy certificate.
Now, as far as the period prior to issuance of occupancy certificate is concerned, it is evident that possession was agreed to be given in the month of June, 2017 and it was not accordingly given. So, delay in handing over possession in this case started from July, 2018. Delay continued till issuance of occupancy certificate. Delay in handing over possession of the flat is only for the period from July 2017 to August 2018.”
However, the promoters argued that there are reasons beyond their control due to which delay was caused. According to the promoter, there was delay in issuing necessary permission and no objection certificate from the various competent authorities for obtaining building permission, environment clearance certificate, revised building permission, lift no objection certificate, Fire no objection certificate, drainage no objection certificate etc.
The Tribunal observed-
“It cannot be ignored that the promoter was well aware of obtaining permission and no objection certificate of various authorities. Moreover promoters could anticipate approximately the time that may be required to the various authorities to issue such a permission and no objection certificate. So, it cannot be said that the delay from July 2017 to August 2018 in handing over the possession of the flat was due to reasons beyond the control of the promoter. In such circumstances, allottees are entitled for interest only from July 2017 to August 2018.”
Thus, the appeal was partly allowed.