Possession of flat does not mean fit out possession under RERA Act. Ruling on the sanctity of the ‘specified date’ of possession, Maharashtra RERA Tribunal asked the builder to refund the amount paid by the flat buyers along with interest. Two buyers withdrew from the project of the builder three months after the delivery of flats was due.
The tribunal held that the promoters and developers of Palava Lakeside in Kalyan failed to handover the possession of flats by 28 February 2018, as mentioned in the agreement for sale and thus the allottees are entitled to withdraw rom the project and get refund with interest.
Buyers had filed a complaint before MahaRERA stating that their agreement with the builder done in 2014 and builder promised possession for fit-outs by February 2017 and subsequently within a year the final possession with occupancy certificate but with a grace period of one year. The project was incomplete when the RERA Act took effect in May 2017, the promoters registered the project under RERA.
In May 2018, the buyers decided to withdraw from the project with no possession till that time and demanded refund with interest and compensation. The buyers invoked section 18(1) of RERA which provides for refund with interest and compensation for builder’s failure to provide possession of the flat by the specified date as per the agreement.
In March 2019, MahaRERA held that section 18 not attracted to the case as the builder/ promoter as the part occupancy certificate was received for the project in May 2018, which is way before the complaint filed by the buyers. MahaRERA authority stated that once the project is complete, section 18 would not apply and advised the buyers to take possession of the flats when ready.
Aggrieved by the orders of MahaRERA, buyers preferred appeal before the appellate tribunal.
On January 12, 2021, tribunal held that the MahaRERA order is not sustainable under the given provisions of RERA Act. Section 18 of RERA is absolute on the point of ‘specified date’ mentioned in the agreement for giving possession and not on any grace period mentioned n the agreement, said the tribunal. Also, ‘Possession as contemplated under section 18 of RERA Act is not fit out possession’, tribunal explained.
Section 19(x) of RERA Act mandates offering physical possession with OC to the buyer, who is obligated to take the delivery within two months. ‘Once it is evident that the builder/ promoter failed to provide possession by the specified date as mentioned in the agreement, promoters are not entitled for extension’, tribunal iterated.
The tribunal directed the builder/ promoter to refund the amounts paid by the buyers with interest of 2% more than the current prevailing SBI rates. The buyer also claimed Rs. 25 Lakhs as compensation which tribunal did not grant but gave them the liberty to file an independent petition for compensation before the adjudicating officer of MahaRERA.
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