The date of handing possession of flats is binding on the developer and cannot be changed due to delay in getting approvals, the MahaRera Appellate Tribunal has held while directing a developer to pay interest to 11 flat purchasers.
It decided their appeals against MahaRera’s order in respect of “Neelkanth Woods Olivia” – a project of three wings of 26 floors each – at Majiwade, Thane. As per the agreement for sale (AFS) T Bhimjyani Realty Pvt. Ltd. agreed to deliver possession by November 2017 and May 2018. When the allottees moved RERA for interest due to delay in possession, it directed the developer to hand possession before May 2019 and granted the liberty to demand interest on completion of the project.
Their advocate Tanuj Lodha argued that they had paid 90 % amount and terrace slab was cast by November 2016. But the developer revised the plan to add 6 additional floors to each wing to build 60-70 flats. It also revised the date of possession to October 2018 and ascribed the delay to pendency of approval to the revised plans in view of change in TDR policy, new CC and HC’s May 2017 order restraining Thane Municipal Corporation from granting new OC/CC due water scarcity in the project area as force majeure factors.
The developer’s advocate said the plan to add only three extra floors was disclosed in the AFS. He said the delay was due to policy paralysis at government/TMC and HC’s order which was beyond the developer’s control. Hence the extension granted by the Authority is neither irregular nor illegal.
The Tribunal said there is a definite delay in handing possession and developer could not adhere to the date agreed in AFS. “The date shall remain unchanged and binding on the promoter until any change or revision is expressly in writing,’’ it said, noting that there is no proof that the allottees consented to change the date.
The Tribunal said any delay in obtaining necessary approvals to amended plans etc will not entitle the developer for concession in the agreed period of possession. The only fact that merits serious consideration is the delay due to HC’s order that remained in force for 5 months.
“Shortage of water supply can be reckoned as force majeure factor beyond the control of the promoter (developer) for considering extension in possession period. As this ban was imposed before the agreed period of possession, its adverse effect on the completion of the project cannot be denied,’’ members Sumant Kolhe and S S Sandhu said in the December 14, 2020 order. They set aside MahaRERA’s December 3, 2018 order, extended the agreed period of possession by 6 months “while holding the promoter (developer) responsible for paying interest for delay in possession.”
The developer will pay interest at the rate of SBI’s highest marginal cost of lending rate plus 2 % with effect from June 2018 and December 2018 till the actual date of possession.
