APPEAL NO.

4T006000000010940

BEF'RE MAHARA'HTRA REAL ESTATE Apprr-r_arr

rnr#irl-,
MUMBAI

APPEAL NO, ATOOSoOO0ooolog40 ()F 2019

IN
Comolaint No. CCOO6OOOOOOO54617

Veena Realcon pvt. Ltd.

Ttrough its Authorized Representative/ Director
Mr. Nikunj Haresh Sanqhavi
Having its Office at:- A/901,
Kaledonia, HDIL Tower,
Sahar Road, Andheri (E),
14 um bai-
Appel/ant

1. Mr. Shivkumar Inamdar

2. Mrs. Vijayalaxmi S. Inamdar
"Sanskruti" 3260, Opp. St. Lawrence
High School, 90 feet Road,
Kandivali (East), Mumbai-400 101.
Respondents
-ALONG WITH.

APPEAL NO, 4T006000000053448 0F 2021

IN
in o 1

1. Mr. Shivkumar fnamdar

2. Mrs. Vijayalaxmi S. Inamdar
"Sanskruti" 37160, Opp. St. Lawrence
High School, 90 feet Road,
Kandivali (East), t\4umbai-400 101.
Appelanb
- VeTSUS -
Veena Realcon pvt. Ltd.
Tirough its Authorized Representative/ Director
I\4r. Nikunj Haresh Sanqhavi
Having its Office at:- A/901,
Kaledonia, HDIL Tower,
Respondent
Mr. Viraj Jadhav Advocate for M/s. Veena
Rea/con M. L td./ Promoter.
Mr. Harshad Bhadbh ade, Advocate for
Comp/ainants.

1
 APPEAL NO. AT0060oo00oo1094o

CORAM : SHRI SHRTRAM R. JAGTAP, MEMBER (J)

& DR, K. SHIVA]I, MEMBER (A)

DATE :28th MARCH 2024
(TH R O UG H VIDEO CONFER E
NCE)

JUDGEMENT

rPER: pR. K, SHMJI. MEMBER (A)l

Captioned Appeals (for convenience, Appeals N0.10940
and
Appeal No.53448 will be addressed as Appeal and Cross Appeal
respectively,) have been preferred under The Maharashtra
Real Estate
(Regulation and Development) Act, 2016 (in
short, the Act) by
challenging the Order dated 26s October 2018 passed
by learned
Chairperson, Maharashtra Real Estate Regulatory Authority
(MahaRERA), in Comptaint No.CC006000000054G17.
2. The captioned appeals are arising out of similar facts
and are raising
identical questions of law. Accordingly, these appeals
are heard together
and are being disposed of by this common order as
hereunder.
3. Appellant in Appeal No. 10940 is promoter, who is
developing and
constructing a duly registered project known as ..Veena
Serenity,,
located at Chembur, Mumbai (in short,'the said project,).
Respondents
in appeal no. 10940 are flat purchasers of a flat in promoter,s
said
project and are complainants before MahaRERA.
For convenience,
appellant and respondents in Appeal No. 10940 will
be addressed
hereinafter as promoter and complainants (allottees) respectively
in
their original status before MahaRERA.

4. Brief background giving rise to the present appeals js as

under

2
 EAL NO. A 60000000 10940

a. Complainants case: Complainants have booked flat no,

501-C in the
said project of promoter by executing agreement
for sale dated 2znd
March. 2015 for total consideration of t 1,31,93,9g5/_,
wherein Clause
No. 30 of the said agreement stipulates that the possession
of the
subject flat will be handed over by the promoter
on or before 30
months from the date of the agreement (i.e. by 21st
September 2017)
subjed to reasonable extension based on certain factors
beyond the
control of promoter as enumerated in the aqreement.
b. On account of the delay in delivery of possession of
the subject flat,
captioned complaint came to be Rled by complainants
before
MahaRERA seeking various rcliefs inter atia
dtrection to the promoter
for possession of the subject flat and topay interest on account of
delay in giving the possession ofthe subjeci flat from
September 2017
on the paid amounts till the date of possession together
with
compensations,
c. Respondent promoter appeared before MahaRERA
and opposed the
said complaint by submitting before MahaRERA
that agreement for
sale provides for reasonable extension of time for
delivery of
possession due to factors beyond the
control of the promoter.
Whereas construction of the said project got delayed primarily
on
account of factorsbeyond the control of the promoter, more
particularly because of internal disputes
behveen Maharashtra
Housing and Development Authority (MHADA) and Municipal
Corporation of Greater Mumbai (MCGM/ BMC). As
a result, thereof,
certain sanctions and approvals required for the
said project got
delayed despite promoter having done all compliances
in time. Even
then, promoter has received the Occupanry Certificate
of the project
in October 2018.

3
 L NO, AT 0000000 10940

d. Upon hearing the parties, learned Chairperson, MahaRERA passed the

impugned order dated 26th October 201g and directed promoter
/rfer
a/ia lo pay interest at prescribed rate to complainants
for the period
from 1* August 2019 till October 2018 on the paid
amounts.
MahaRERA further advised the complainants to
take possession of the
subject flat after making balance payment as agreed
between the
parties after adjusting the interest to be received
at the earliest.
e. Aggrieved by this order of MahaRERA, promoter has preferred
the
captioned appear no.10g4o seeking various rcriefs
inter atta to quash
and set aside the impugned order dated 26rh October
201g, direction
to comprainants to pay barance consideration arong with interest
for
delay in making the payments and opposed the
cross appeal filed by
complainants.
f. Aggrieved by this order of MahaRERA, Complainants
have atso filed
the captioned cross appeal, seeking various reliefs including
to modify
the impugned order 26rh dated October 2018 and for
direcuon to
promoter to pay interest on the entire paid
amount from 1i August
2018 till the actual date of delivery of possession.
5. Heard learned counsel for parties in ertenso.
6. Promoter has filed the captioned appeal and opposed the cross appeal
by submitting as follows; -

a. Learned counsel for the promoter submits that the said project
land
was owned by MHADA and as required therein, promoter
obtained
NOC from MHADA on 17th lune 2014 for redevelopment
of the said
property and submitted proposal to I\4CGM
for redevelopment and
construction of the said project, namely the .,Veena
Serenity,,.
Complainants/ allottees are required to make payments
as per the
payment schedule mentioned in the agreement.
Out of total

4
 APPEAL NO. AT006000000010940

consideration of the subject flat of t 1,31,93,985/_, comptainants

have paid < 0t,79,06,5271- and were required to pay balance
amount of I 72,87,4591- within 7 days from the date of intimation
of the fit-out possesslon as per the agreement for sale. However,
complainants have failed and neglected to make these balance
payments despite reminders.

b. The said project land is owned by MHADA, and promoter

was
required to take NOC from I4HADA for getting occupation
ceftificate.
Accordingiy. applied for occupation certificate on 17ih
January 201g.
However, it appears that there were some internal disputes
and
differences between MHADA and t4ccty regarding the issuance
of
approvals. Therefore, the entire process of approval/ issuance
of the
occupation certificate got delayed despite the said buildjng
being
complete in all respect and was ready for lnhabitatjon in
time.
Therefore, promoter cannot be held at fault for the said
delay and
the said delay was due to factors beyond the control of the promoter.
Eventually, after the clarification of the State Government
and
permitting I\4HADA to exercise the powers
of planning Authority,
part-occupation certificate was granted on 12th
October 2018.
c. Even then, promoter has completed the said building within the
stipulated time without any delay in lanuary 2018. This
has been
certified by the promoter,s architect, vide its certificate
dated 01s!
September 2017. Moreover/ complainants were already
offered for
fit-out possessions by communication dated 26th March 201g
after
making the balance outstanding amounts of I 12,87,45g
within 7
days as required under the agreement. In addition to
the balance
payment of { 72,87,4591-, complainants were
to pay further amount
{
of 5,13,100/- towards the society charges, {1,94,g80/_ towards
maintenance charges before taking possession of the
said flat as per

5
 APPIAL NO AT006 0000000 10940

clause 40 and 42 of the agreement. But complainants

have failed to
make payment of this amount within 7 days.
d. Complainants had booked the subject flat under
the [Link]
subvention scheme for availing loan facility from
financial instatution,
i.e. Dewan Housing Finance Corporation Limited ,,DHFL,, by
executing tripartite agreement, wherein as per
clause nos. 6 and 7,
promoter had agreed to pay pre-EMI for period
a of 24 months (up
to 30th July ZOLT) or until the intimation of fit-out possession
whichever is earlier. Thereafter, complainants themselves
were
required to pay pre-EMI directly.
e, As such, promoter cannot be held accountable for the
failure on the
part of the authorities for the delay in issuance
of the occupancy
certificate, more particularly in view of the clause 30 of the
agreement for sale, which entifles promoter automatjcally for
reasonable extension of possession delivery
timeline, if the project
construction is delayed on account of several factors
beyond the
control of the promoters inter alia non_availability
of steel, cement,
war, civil commotion, Act/s of God, force majeure
events including
due to stay order from courts or authorities/government etc.
Accordingly, promoter is entifled for extension of delivery of
possession of the subject flat.

f' Moreover, comprainants with marafide intentions/

have fired the farse
and frivolous complaint before lyahaRERA to avoid payment
of the
balance consideration and pre_EMI interest.

9. Learned Chairperson, MahaRERA has no jurisdiction to adjudicate

the relief sought by the complainants in respect of interest
for
compensation for delay in delivery of the possession
of the subject

6
 APPEA L NO, ATO 060000000 10940

flat and the same is required to be adjudicated by the

Adjudicating
Officer under Section 7l/72 of the Act.
h. MahaRERA has passed the unjust, unreasonable,
and unduly harsh
impugned order dated 26th October 2O1g without considering
the
aforesaid mitigating circumstances and the factors, which
were
beyond the control of promoter for the purported delay.
Thereby,
MahaRERA is not justified in fastening liability on the promoter
for
the alleged delay.
i. The promoter has not committed any breach of the impugned
order,
As such, based on the appljcation filed by complainants
and in
pursuance to the order of this Tribunal
dated 14th February 2020,
promoter has already handed over the possession
of the subject flat
to complainants on 23d July 2020 upon realisation of the
entire
amount. Before taking possession, complainants have
executed an
undertaking dated 23d July 2020 whereby, they have
confirmed that
they have no objections or complaint of any nature whatsoever
against the promoter and complainants have waived
their rights to
raise any objection or raise any claims of whatsoever
nature. In view
thereot complainants have expressly agreed not to raise
any claims
against promoter in respect of and lor arising from the said
agreement for sale. However, after accepting possession
of the
subject flat and after executing the said undertaking,
complainants
have filed the captioned cross appeal. Therefore,
the cross appeal
filed by the complainants are also not maintainable
and deserve to
be dismissed.
j. In support of the above contention, learned counsel
has referred and
placed reliance on the judgement of the Hon,ble
Bombay High Court
in the case of Neelkamal Realtors Suburban pvt.
Ltd. & Anr.
Vs, Union of India & Ors. [(2017) SC Online Bom 93021,

7
 APPEAL NO, AT00600 0000 010940

wherein it has been held that compensation should not

be awarded
mechanically against the promoter on failure to complete
the
development work and each case has to be considered
on its merits.
However, the impugned order has been passed without
considering
all the points of the promoter and has held promoter to pay
interest
in mechanical manner.
k Promoter has further referred and relied on the following
citations/judgments in support of the above contention (a)
Arce
Polymer A/t. Ltd. Vs. Alphine pharmaceuticals A/t Ltd. (2022)
2 SCC
221 and (b) Henriqueta Maria Julieta Vs. State of Goa
2008 (4)
Mh.1.1.908. Therefore, the impugned order is illegal,
contrary to the
principles of naturaljustice and deserves
to be set aside by allowing
the prayers made in the appeal and urged that the cross
appeal filed
by complainants be dismissed with costs.
7, Per contra, complainants opposed the appeal
and sought above reliefs
by flling the captioned cross appeal by submitting the followings;
_

a. The Hon'ble Supreme couft in para nos. g3 to g6 of its judgment

in
the case of Newtech promoters & Devetopers pvt.
Ltd. Vs.
State of Up & Ors,, [2021 SCC Online SC 1044], and in
terms of
settled position of law, it has been held that Adjudicating
Officer has
jurisdiction to
decjde only compensation/s. Whereas Authority
(I4ahaRERA) has jurisdiction to decide
and adjudicate all other
issues under the provisions of the Act other than
compensation
including the reliefs sought by the complainants
in the instant case
inter aliafor inlercst for the delay in delivery of the possession
under
Section 18 of the Acr.
b. The captioned complaint has been filed by allottees
on account ot
delay in delivery of the possession within the aqreed
timetine of
within 30 months i.e. before 22nd Septe her 2077
as stipulated in

8
 APPEAL NO, A 10940

clause 30 of the agreement for sale, despite payments

of more than
90 percent out of the total consideration of the subject
flat inctuding
TDS, VAT and other charges. As such, the promoter
continued to
demand for payment of balance consideration of t
12,g7,458/- and
also demanded payment of the maintenance and other
dues even
after the issuance ofthe impugned order by MahaRERA in
favour of
allottees. As such, promoter failed to handover possession
of the
subject flat despite MahaRERA order.
C. Eventually, promoter handed over possession ofthe subject
flat only
after the order of this Tribunal dated 14th February 2020,
which was
issued based on the specific application of complainants.
Allottees
took possession after depositing the remaining considerations
under
protest and also after giving an undertakjng
dated 23d July ZO2O,
wherein clause no.5 of the undertaking clearly provides that
respective paties have indemnified each other against
the
respective claims/rights in the captioned appeals
and the impugned
order passed by MahaRERA more particularly with respect
to the
interest payable by promoters, which have accrued in
the wake of
the delayed possession and interest payable by complainants
on the
delayed payments respectively. Therefore, possession
of the subject
flat has been taken over under the protest without prejudjce
to the
accrued rights of the complalnants inter alia undet Sectjon
1g of the
Act.

d. The promoter itself has admitted that the construction

of the said
building was completed only in January 2018 and the
application for
occupation certificate was made only on 17th January
201g. Failure
to handover possession of the subject flat due to the
delay in grant
of the occupancy certificate by the committed date of 21,r
September 2017, cannot be attributed to com plainants
in any case

9
 APPEAL NO, AT 000000t) 10940

and promoter is liable to pay interest for the delay in

delivery of
possession.

e. As such, MahaRERA while passing the impugned

order has
considered 31n July 2019 as date of handing over
the possessron,
which in itself, is a reasonable extension of time and
thrs was
granted to promoter of an adjustment of certain
months from the
committed date in the agreement of 22"d September 2017.
f. MahaRERA, vide its impugned order has specifically rejected the
claim/s for interest on the payment of the balance
conslderation by
complainants and therefore, promoter is not justified
in demanding
interest for the payment of balance consideration.

9. MahaRERA has passed the order to handover possession

by October
2018 based on the statement of promoter and thereby promoter
was directed to pay interest for the delay in delivery
of possession
only for the period started from 01d August 2018 till
October 2018.
However, promoter has not offered possession of
the sajd flat tjll
14th February 2020. Therefore, comprainants
are entitred for interest
from 1st August 2019.
h, The act of promoter for not offering possession of
the subject flat
clearly demonstrates the malafide jntentions
of promoter of
harassing complainants and extorting more money.
i, Without prejudice to their rights, learned counsel
further submits
that The Hon'ble Apex Court in catena of judgments,
has time and
again held that reasonable time for completion
of the project and
handing over the possession of the flat is 3 years.
Even then, the
reasonable time for possession delivery expires
on 22nd March 201g.
Therefore, promoter is otherwise liable to pay interest
under Section
18 of the Act beyond the said period of
2"d March 2018.

10
 APPIAL NO AT00 0000 10940

j. In view thereot it is more than clear that promoter did

not adhere
to the terms of the agreement for sale for timely delivery
ot the
possession and has not delivered possession even within the
reasonable trme of three years as specified by
the Hon,ble Apex
Court and the fault for delay in grant of OC was for want of
necessary compliances by promoters to obtain OC.
The appeal filed
by the promoter seeking payment for the balance consideration
along with interest for purported delay in making payment
from the
date of intimation of fit-out as per the purpoted agreed
terms as
also not permissible, It is because, these reliefs have been sought
for the first time in appellate stage. As such, complainants
have
always been making all the requisite payments in
time in terms of
the payment schedule in the agreement and as and
when demanded
by the promoter.

k. MahaRERA, vide its impugned order has categorically held that

complainants shall make balance payment (principal
amount only)
after adjusting the interest to be received as stipulated para
in 5o
at the time of possession.
l' Despite receipt ofthe occupation certificate, promoter
never offered
possession of the said flat to complainants
and the possesston was
offered by promoter only after the order of this
Tribunal 14th
February 2020 based on the application filed
by the complalnants.
Complainants have taken possession on 23td July
2O2Oin pursuance
to this Tribunal,s order dated 14b February 2020
under protest and
after making such payments.
m. I\4oreover, promoter has never filed any complaint
seeking interest
from complainants for the alleged delay in payment
of dues / balance
consideration.

11
 APPEAL NO. AT00600ooooo10940

n. It is well established principle of law that maintenance charges can

be demanded from allottees only after handing over
the possession.
Therefore, allottees are liable to pay only the prjncipal
amount of
the balance payment without any interest. Accordingly,
complainants have paid these balance considerations
with interest,
society charges, maintenance charges and GST to promoter
under
protest and have taken over the possession
on 23d )uly 2020.
o. ln view of the foregoing, promoter has not made any cogent and
compelling case to quash and set aside the impugned
order passed
by MahaRERA, which was issued after hearing all the parties
and js
based on cogent, well-founded reasons. Therefore,
the appeal filed
by promoter is liable to be dismissed and the reliefs sought
by
complainants in their cross appeal be allowed.

8. From the rival pleadings, submissions and documents

relled upon by
the parties, following points arise for our determination in
this appeal
and we have recorded our findings against each of them
for the
reasons to follow: -

POINTS FINDINGS
1 hether complai nants are entitled for the reliefs as
As per the
rayed for in the cross-appeal? order.
ther impugned r
orde passed by MahaRERA In the
lls for interference in these a ppeals?
affirmative.

REASONS
Points 1 and 2:
9. These points are interrelated so have been considered
together.
10. Learned counsel for the complainants while arguing the
matter submits
that complainants are seeking only the reliefs relati ng
to the direction to

72
 APPEAL NO. AT00600000001o94o

promoter for payment of interest for the delay

in delivery of possession
of the subject flat from 1* August 2O1B till the actual
date of delivery of
possession and not pressed for the remaining
reliefs sought in the appeal
and vehemenuy opposed the claims made by the promoter.
11, Whether the possession of the flat was delivered
as per agreed
timelines: It is not in dispute that complainants have booked
the
subject flat in the said duly registered project of promoter
by executing
agreement for sare dated 22'd March,2015 for
totar consideration of r
t,31,93,9851-, wherein CIause No. 30 of the said
agreement stipulates
that the possession of the subject flat will be handed
over by the
Promoter on or before 30 months from the
date of the agreement (i.e.
by 21st September 20L7) subject to reasonabre extension
based on
certain factors beyond the control of promoter
as enumerated in the
agreement. Therefore, complainants are allottees
and developer is
promoter under the provisions of the Act.
lvloreover, the project under
reference is duly registered under the Act of 2016.
Therefore, provisions
of the Act are squarery appricabre to the aforesaid
transaction in the
instant appeals.
12. Learned counsel for the promoter claims that project
work was
compreted within the stipurated time and the promoter,s
architect has
also given a certift'cate to this extent vide architect
certificate dated 01st
September 2017. Whereas application for occupation
ceftificate was
made on 17th January 2O1g and fit out possession
was also offered to
complainant-on 26h March 2018. However, the
occupation certificate
was received only on 12th October 2018. However.
offer of fit out
possession is not a legal possession,
and it is a settled position of law
that legar possession of the frat cannot be offered
without the receipt of
valid occupation certificate, which was received
only on 12ih October
2018. lYoreover, perusal of occupation ficate dated 12th October

13
 APPEAT NO. 4T00600000001o94o

2018 issued by MAHADA, further reveals that this is

a conditional
occupation ceftificate, which contains several conditions.
But promoter
has not produced any documentary evidence to show that these
conditions mentioned in the Occupation Certificate
have been complied
with and futfilled.
13, In view thereof it is more than clear that the legal possession
of the
subject flat with occupation certificate was possible to
be ofFered only
after 12th October 201g and therefore, it is more than evident that legal
possession was not offered on or before agreed timeline of 21st
September 2Ol7 as a stjpulated in clause 30 of the
agreement for sale.
14. In view of the foregoing, it is more than clear that
delivery of legal
possession of the said flat with required
occupancy certiflcate have not
been handed over before the agreed timelines therefore
Sectjon 1g of
the Act will be attracted.
15. It is apposite to reproduce Section 1g of the Act as under: _

" 18. Return amount and compensation. _ (1) ff the promoter

,of fajls to complete or
b unabte to give possession or an apartning, plot ri
(a) in accordance with tn" t"rm oi tn"
oiiaiii _
ugr"uiiiir", ,i-i ii, as the case may
be, duly comp/eted by the date specified therein:
or
(b) due to discontinuance his business as a developer on account of
suspenspn or revocation of-of
reason,
the registration unaer tnrs )i oi nr any other
he shal be liable on demand to the a/lottees, in case
the A/lottee wishes to
wtthdraw from the projeq wtthout pretudice
to iri-iiniriii")y ,vaitdbte, to
return rhe amount received by him n resnga
or tiri ipiiiiii ptot, buldins,
[Link]?-case may be, with interest at such ,ut" ui ii
jioiiJa
Li-ilLoraua in no
behatf inc/udins compensation in tne
provided that where an alottee ,rnn"iii ii"iloo e",
does not
projeq he sha be paiL by the promoter, interest
iitirJii iiiii"w from the
month of
for every
delayl till the handing over of the possessioL at ,uch
,ute as may be
prescribed.
(2)..
(3) ff
the Promoter faits to di.'scharge any other obligations
imposed on him
under this Act or the ru/es or regulations made
thereunder or in accordance
with the terms and conditions of the agreement for
sale, he shall be /iable to
pay such compensation to the allottee,
in the as provided under this

14
 APPEAL NO. AT006000000010940

16. In view of the provisions of Section 1g of the Act,

complainants are
entitled for interest for the delay in delivery of the possession
oF the
subject flat.
17. However, learned counsel for the promoter submits
that the delay in
receipt of the occupation certificate was despite
completion of the
building construction and delay has happened apparenfly
due to internal
disputes between the I\4AHADA and MCGM, for which promoter
cannot
be faulted. Moreover, the agreement for sale specifically provides
for a
reasonable extension of possession dejivery
date on account of such
factors, which are beyond the control of the promoter.
18. Whereas The Hon,ble Supreme Court in para
nos. 25 and 78 of its
judgment dated November 17, 2021,
in the case of M/s Newtech
Promoters and Developers pvt. Ltd vs, State
of Uttar pradesh &
Ors. (supra) dated 11th November 2021 has
clarifl ed that if promoter
fails to give possession of the apartment, plot
or building within the time
stlpu/ated under the terms of the agreement,
then, Allotteeb right under
the Act to seek refund/ claim interest for delay
is unconditional &
absolute, regard/ess of unforeseen events or
stay orders ot the
Court/Tribuna/.
And para 78 of the judgement further states that; _

78. This Court while interpreting Section 1g

of the Act, in Imperia
Structures Ltd. Vs. Anil patni and Anr.
[5 2020(10) SCC 783], has held
that Section 18 confers an unqualified right upon
an Allottee to get
refund of the amount deposited with the promoter
and interest at the
prescribed rate, if the promoter fails
to complete or is unable to give
possession of an apartment as per
the date specified in the home buyer!
agreement.
19. h para 23125, it was further held as under:
t^

15
/{w
 APPEAL NO. AI 60000000 10940

"... .The proviso to section r8(1) contemplates

a situation where the Arottee
does not intend to withdraw from the project. In
that case, he is enti ed to and
must be paid interest for every month of delay ll the
handing over of the
possesslon. It is up to the Allottee to proceed
either under Section lg(7)
or under proviso to section 7g(7), The case of Himanshu
Giri came under the
/atter category. The RERA Act thus delinitety provides
a remedy to an Allottee
who wishes to withdraw from the project or c/aim
return on his investment.,.
20, In view of above, it is crystal clear that the rights
of Allottees under
Section 18 of the Act are unconditional and absolute,
regardless of
unforeseen events including due to any other reasons,
even due to
factors beyond control of the promoter and it is the
allottees,
who have sole discretions to proceed either under
Section 1g
(1) or under the proviso to the Section 18 (1). Accordingly,
respondents allottees have unconditional and absolute
right to claim
interest at prescribed rate under Section 1g
of the Act for delay in
delivery of possession of the subject flat from the
agreed date.
21. Extension in possession date as per the agreement:
Learned
counsel for the promoter further submits that
clause 30 of the agreement
for sale provides for reasonable extension/s of the
delivery date of
possession on account of such factors
as have been encountered in the
instant project, namely the delay in issuance
of the approvals and
occupation certificate on the part of the authorities
etc,. However,
carefur perusal of these factors, it revears that
these factors do not
qualifies as force majeure events as
defined under section 6 0f the Act
and therefore, the contentions of the promoter
are contrary to the
provislons of the Section 6 of the Act
and cannot be accepted. t\4oreover,
promoter has not invoked these clauses
by sending intimation to
complainants by intimating the same in writing
well in time.

16
 APPEAL NO. 4T00600000001o94o

22. Effect of an executing undertaking by complainants

before
taking possession: Learned counsel for the promoter further
contended that before taking possession, complainants
have executed
an undertaking dated 23'd July 2020, whereby,
they have confirmed that
they have no objections nor any complaint of any nature
whatsoever
against the promoter and complainants have waived
their rights to raise
any objection or raise any claims of whatsoever
nature. In view thereof,
complainants have expressly agreed not to raise
any claims against the
promoter in respect of and
/or arising from the said agreement for sale.
However, after accepting possession of the subject flat and after
executing the said undertaking, complainants
have fijed the captioned
cross appeal. Therefore, according to the promoter,
the cross appeal
filed by the complainants is not maintainable
and deserves to be
dismissed.
23. However, upon meticujous perusal of the undeftaking
given by the
complainants more particularly its clause 5
clearly reveals as follows; -
" I/we hereby indemnifii and
keep indemnified the promoter against the
appeal no. AT10940 of20t9 pending before
this Tribunal with regard to
the interest payable by me/u, accrued on the
de/ayed payments.
Fufther, the promoters here by indemnlf,/ and
keep indemnifying me/ us
against the order dated 26h October 201g
by MahaRERA against the
complaint no. CC 54617 with regard to the interest
payab/e by the
promoter, accrued on the de/ayed possession.,,
24. Learned counsel for the complainants vehemenfly
contended these
claims of the allottees by submitting that
the possession has been taken
under without prejudice to their rights based
on the order of this Tribunal
dated 14th February 2020 and therefore, these
contentions of the
promoter are regaly not tenabre. l4eticurous
perusar of crause 5 0f the
undertaking, it is crystal clear that the possession
of the flat h as been

t]
 NO, ATO060000000 10940

taken by complainants under protest by clearly indemnifying

each other
in respect of their irrespective claims and accrued rights
under the
provisions of the Act.
25, I4oreover, learned counsel for the promoter himself confirmed
at the
time of hearing, that the draft of this undeftaking was prepared
by
promoter itself and was handed over to complainants
for giving their
undertaking and accordingly, this undertaking has been executed
and
been given by comprainants to promoter. Therefore,
the contentions of
the promoter cannot be accepted.
26. In vtew of the foregoing, claims of the promoter are legally
not tenable
on account of the followings; -
a, As determined here in above, the rights of Allottees under
Section
18 of the Act are unconditjonal and absolute, regardless
of
unforeseen events includlng any other reasons even
factors beyond
control of the promoter.
b. The delay in project completion and consequent delay in
deljvery of
possession of the subject flat is not attributable
to allottees. Delivery
of timely possession is the contractual commitments given by
promoter under the agreement for sale. Therefore,
promoter
continues to be legally liable to pay interest at prescribed
rate for
the period of delay in delivery of the possession under
the Act.
c. The Hon'ble Bombay High Court, in the case
of Neetkamal
Realtors Suburban pvt. Ltd. & Anr, Vs, Union of India
& Ors.
(Supra) in para 119, further held that,, Whi/e the praposat
is submitted,
the Promoter is supposed to be conscious of
the consequences of gelting the
proJect registered under RERA. Havlng
sulficient experlence in the open
market, the promoter is expected to have a fair assessment of the
time required for compteting the project....,,.

18
 APPEAL NO, A 0000000 10940

Accordingly, it is evident that promoter is inherently

better equipped
about market related information and is structurally
at advantageous
position in as much as the information about
the sajd project updates
are concerned, Therefore, in consonance with the provisions
under
Sections 11 (3) and 19(2) of the Act, promoter is liable
to provjde
unambiguous and expressed/ definite information about project
completion date / possession delivery date at the time
of booking
and the change in the possession date can be possible
only with the
mutual consents/agreements of the parties.
d However, it is perunent to note that it is the promoter, who is
responsible for timely delivery of possession
of the booked flat but
has failed by not deiivering possession of the subject
flat withjn the
agreed timelines as per the agreement. Therefore, promoter
has
violated the statutory provisions under Sections
1g of the Act on this
count.
e. Party in breach, cannot take advantage of its
own wrong:
The said delay, being attributable to promoter itself,
cannot deny
the accrued rights under Section 1g of the Act to Allottees
on the
very same ground for which, promoter himself
is responsible for
delay, especially because the rights so accrued
to allottees under
Section 18 are uncondjtional, unqualified, and
absolute. promoter is
seeking extension of this very delay on account of its own
deficiencies/ non-performance and despite being party
in breach,
this is legally not permissible. It is because, he
himself cannot take
advantage of its own wrong in vjew of the judgement
of The Hon,ble
Supreme Court in the case of Kusheshwar prasad Singh Us.
State of Bihar and Ors. [Supreme CourtL Civil
Appeat wo.
7357 of 2OO0,,. Where in, it has been hetd
that _,,It ts settted
Ftrinciple of law that a man cannot be permltted to take
undue and unfair

19 M
 APPEAL NO. AT00600ooooo1o94o

advantage of hb own wrong to gain favourabre interpretation

of /aw. tt is
sound principre that he, who prevents a thing from
being done sha/r not avait
himself of the non-performance he has occdsioned. To put
it differentty, ,,a
wrongdoer ought not to be permitted to make a profit
out of his own wrong.
f. It is also important to note that the project has been registered
under the Real Estate (Regulation & Development) Act, 2016 (\he
Act), which provides several welfare provtsions including for greater
accountability towards consumers to protect consumers as
contemplated in the statement of Objects and Reasons
of the Act.
Whereas it is distressing to note that, there is undue and
inordinate
delay in delivery of the possessions of the subject flat
despite
payment of substantial amounts by complainants.
As a result of this,
complainants continue to be deprived of their legitimate
entiflements
of getting possession of flat in time.
g. h the Judgment of the Hon,ble Supreme Court of India jn
the case
of M/s. Newtech promoters and Developers pvt. Ltd. versus State of
U.P & Ors (supra).., it has been observed with regard
to some of the
relevant statement of objects/reasons as mentioned in para
11 as
that "11. Some of the relevant Statement of ObJects and Reasons are
,,
extracted as under:
4...(f) the functions of the Authority shall, inter alia, tnclude _
(iii) to ensure comp/iance of the obligations cast
upon the promoters. the
al/ottees and the real estate agents under the proposed
legislation.
h. Itis also impoftant to note that the project has been
registered
under the Real Estate (Regulation & Development)
Act, 2016, which
provides several welfare provisions to protect
interests of consumers
including for greater accountability towards consumers
to inject
greater efficienry, transparency and accountability
as contemplated
in the statement of Objects and Reasons of the Act.
Regulation 39
of lvlaharashtra Real Estate Regulatory (Generat)
+uthority

2A
 APPEAL NO AT 0000000 10940

Regulation, 2017 further stipulates inherent powers

of the Authority.
It lays down that
"Nothing in the Regutations shall be deemed
to limit or otherwbe affect the
lnherent power oF the Authoity to make such orders
as may be necessary
for meeting the ends ofjustice or to prevent the abuse
ofthe process afthe
Authority. "
Similarly, Regulation 25 of [4aharashtra Real Estate Appellate
Tribunal, 2019 speaks about similar inherent powers
of the Tribunal
as "25(1) Nothing in these Regu/ations shat/ be deemed to limit
or othetwise
affect the inherent power of the Tribunal to make such
orders as may be
necessary for meeting the ends of justice or to prevent
the abuse of the
process of the Trjbunal.,,

Itmeans the Regulatory Authority and the Appellate Tribunal

have inherent powers under the Regulations framed
under RERA Act,
2016 to pass appropriate Orders, which are necessary
to meet the
ends of justice,

27. Ellect of exe€ution proceeding of the impugned

order: Learned
counsel for promoter further contended that Complainants
have fjled
apprication for execution of the impugned order
before I\4ahaRERA and
the current appear is cha|enging the very same
order. Therefore,
according to him, appeal has become infructuous
and will affect the
reliefs sought in this appeal,

28, However, The Hon,ble Supreme Court has clarified in paras

t.3_ 7.7 of
its judgement in the case of Karnataka Housing
Board vs. K. A.
Nagamani [(2019) 6 SCC 424] as foltows,

"7.3 the nature of execution proceedings is materially

different from the nature
of proceedings for adjudicattbn of a consumer complaint. Execution proceedjngs
are independent proceedings. Order passed
for enforcement of the ftnal order in

21
 APPEAL NO. AT00600000001o94o

consumer dispute, cannot be construed to be orders passed

in the ,,consumer
dispute."

7.4 During the course of the hearing, the learned

counsel for the appellant raised
contention that execution proceedings are a continuation
of ,,appeal,, and must
therefore be consldered to be a continuadon ofthe,,consumer
dlspute,,. Reliance
in this regard was placed on the decision of the Bombay
High Cout in Satguru
Construction Co. (p) Ltd. Vs. Greater Bombay Cooperative
Bank Ltd. and
Raghunath R. Shingate Vs. Jayant Gajanan pathak,
vit/age patna High Cout in
Parshava Properties Ltd. Vs. A. K. Bose, where it
was held that execution
proceedings are a continuation of the
suit.

7.5. On the other hand, correspondent complaint has placed

reliance on a full
bench of the Andhra pradesh High Court in Guntupalli Ramd Subbawa Vs.
Guntupali Rajamma, where it was held that
ISCC ontine Ap para jjJ
"11. ..,.. Execution proceedings, in our view, cannot
be regarded as continuation
of the sult in the sense in which the proceedings jn the
appea/ are treated..,

7.6. A full bench of patna High Court in Narmada

Devi Vs. Ram Nandan Singh,
slmilar/y, held that execution proceedings cannot
be regarded as a continua on
of the suit.

7.7. We affirm the view tdken by the futl bench ofAndhra pradesh
High Coutt and
the Patna Hiqh Coutt. Execu on proceedings even
though they are proceedings
in a suit, cannot be considered to be a continuation
of original suit. Execution
proceedings are separate and independent proceedings
for execution of decree.

The merits of the claim or dispute cannot

be considered during the execution
proceedings. They are independent proceedings
initiated by the decree ho/der to
enforce the decree asked in the substantive dispute.,,

29, Additionally, The Hon,ble Supreme Court has laid

down in paras 13 of its
judgement in the case of Malluru Mallappa
(D d through Legal
)

22
 L NO. AT 000000 10940

Representatives Vs. Kuruvathappa and Others

[(2020) 4 SCC
313)l as follows;

"13. It is a settled position of law that an appeal is a continuation

of the
proceedings of the origina/ coutt. Ordinarily,
the appel/ate jurisdiction invotves a
re-hearing on law as we/l as on fact and is invoked by an
aggrieved person. The
tirst appeal is a valuable right of the apperlant and therein
arl questions or fact
and law decided by the tria/ court are open for re-consideration.
Theretore, the
first appel/ate coutt is reguired to address itse/f to a// the jssues
and decide the
case by giving reasons. The court of first appeal must
record its findings only afrer
dea/ing with all issues of law as we// as fact and wjth the
evidence, oral as well as
documentary, led by the pafties. judgment of the fi6t appe/late court must
The
display conscious appllcation of mind and record findings
suppofted bv redsons
on all issues and contentions.

30. In view of above, it ls evjdent that despite the execution proceeding,

captioned appears wi
not become infructuous, and reriefs sought in the
cross appeal will remain unaffected.

31. In view of the foregoing reasons/discussions, it is crystal clear that

promoter has failed to deliver the possession
of the subject flat within
the agreed timeline in terms of the agreements for sale
and the rights
so accrued to complainants under Section 1g of the said Act
are
unconditional and absolute regardless of unforeseen events
including
due to factors beyond the control of the promoter and
claims of the
promoter for the extension of possession delivery date under the
agreement for sale is legally not sustainable.

32, Accordingly, we are of the considered view that captioned

appeal filed
by promoter is devoid of merits, lacks substance and promoter
is not
entitled for the reliefs sought in its appeal. Consequen y,
the captioned
appeal deserves to be dismissed.

23
 aPPEAL NO. AT006000000010940

33. Complainants are entitled for the interest at prescribed rate for the delay
ln delivery of possession from lst August 2018 till the date of taking
possession of the subject flat i.e. on 23'd July 2020. Accordlngly, we
answer point nos. 1 and 2 as above and proceed to pass the order as
follows; -

ORDER
(i) Captioned Appeal No. AT0060000000 10940 filed by promoter
stands dismissed with costs.
(ii) Captioned cross Appeal No. 4T0060000000 53448 filed by
complainants is partly allowed.
(iii) Promoter is directed to pay interest at the rate of highest MCLR
(N4arginal Cost of Lending Rate) of SBI plus 2% from 1st August
2018 till 23'd July 2020 to complainants on the amounts paid by
allottees within 30 days from the date of uploading of this order
failing which, promoter will pay lnterest at this rate on the total
amount due and outstanding as on 30th April2024 till its actual
realisation.
(iv) Promoter is further directed to pay the costs of {10,000 directly
to the account of complainants and will bear its own costs.
(v) In view of the provisions of Section 44(4) of the Act of 2016, a
copy of the Judgment be sent to the parties and MahaRERA.

(Dr' SHIVAJI) (s. R. TAP J.)

z4