‘Date of possession in agreement is sacrosanct’

A day before her retirement the chairperson of the MahaRERA Appellate Tribunal Justice retd Indira Jain passed a landmark order setting aside a MahaRERA Authority orderThe tribunal ruled that the date of possession as per the registered agreement is absolute and sacrosanct Also importantly in this case the flat purchasers had changed their plea midway which went against them at the MahaRERA Authority level But the tribunal ruled that the flat buyers could do so by following the legal procedure Advocates appearing in the case said that this order may set a remarkable precedentFacts of the caseNaresh and Sarang Joshi a fatherson duo who reside at Mahakali Caves Road Andheri East had made two separate agreements of sale on March 31 2015 for booking two flats 703 and 803 in B1 Building at FResidencesmdash a project by developers Nahar Homes LLPmdashat Haveli in Pune for Rs 8251 lakh and Rs 8990 lakhA loan was taken from a private financial institution under a 108010 subvention scheme after the parties and the financier executed a tripartite agreement wherein the promoter developer agreed to pay preEMI interest till possession said advocate Anil Drsquosouza who represented the complainants with advocate Kunal MaskarAlso Read MahaRERA rules consider continuity of MOFA ExpertsThe disputeAggrieved by the alleged delay in delivery of possession and absence of the occupation certificate OC and the promoters alleged nonpayment of the preEMI the complainants approached MahaRERA on October 31 2018 seeking that the promoter be directed to adhere to the terms of the tripartite agreement pay all pending dues to the financial institution and hand over legal possession of the flats along with parking and OC as well as compensate them for the delay in possession delivery claimed DrsquosouzaMahaRERA orderUpon hearing the parties the Adjudicating Officer of MahaRERA in two separate orders dated April 3 2019 allowed the complainants to withdraw from the project and directed the promoter to refund the paid amounts at 1075 per cent interest from October 15 2018 together with costs subject to certain conditions stipulated in the said orders which were rectified by MahaRERA vide two separate orders dated May 3 2019 to include a refund of relevant taxes paid thereinFirst appeal filedAggrieved by MahaRERAs orders the complainants made two separate appeals before the MahaRERA Appellate Tribunal These appeals were disposed of by the tribunal via two separate orders dated February 15 2020Matter before MahaRERA againAs per the directives of the tribunal MahaRERA heard the matter afresh and the complainants submitted that the promoter was facing criminal charges on account of nonpayment of interest as well as other dues and expressed a desire to withdraw from the projects besides seeking a refund of paid amountsOther sides argumentThe promoters however submitted that there was no deliberate delay construction had been completed on time as per the sanctioned plan and the OC had been denied for no fault of the promoter so delay could not be attributed to the promoter as it had been paying preEMIsMahaRERAs fresh orderUpon hearing the parties the chairperson MahaRERA passed two separate iorders on May 2021 and disposed of complaints by concluding ldquoIn view of above if complainants intend to continue in the same project as per the prayers made in their original complaints the respondent is directed to hand over possession of the apartment at the earliest In the event complainants intend to withdraw from the said project then such withdrawal shall be guided by the terms and conditions of the agreement as executed between the partiesrdquoAggrieved by the MahaRERA order the complainant moved the tribunal once again which passed the recent order setting aside the one passed by MahaRERAAdvocate speakAccording to Drsquosouza ldquoThere are many key highlights in this benchmark order and we can see this particular order serving as a precedent The tribunal clearly stated that the date of possession as per the registered agreement is held as absolute and sacrosanct and this date is not extendable even if grace period is present in the agreement Even if the builder cites court cases and multifarious litigation as an excuse for the delay in handing over possession this excuse was also overruled by the tribunalrdquoldquoThe tribunal held that a flat purchaser is well within his rights to change his plea during a complaint if he has taken the right steps in applying for the change The fact that the builder defaulted on the date of possession was held as rock solid grounds for a refund the tribunal ruled Clearly a landmark order from the tribunal chairperson who has reinstated the common manrsquos faith in the judiciary and the hallowed benchrdquo said Drsquosouza2015The year complainants booked flats at FResidencesOther observations made by the tribunal1 Builder stopped paying preEMI despite promising to do so till the date of possession and this led to a chain of illfortuned events2 Due to the builderrsquos defaults the financing company cashed the flat purchaserrsquos cheques which were kept as a security deposit3 Then the company filed a cheque bounce case against the flat purchaser in a court in Chandigarh4 Things took a nasty turn when the financing company took symbolic possession of the said two flats in December 2019 despite the matter being subjudice under the tribunal As told by advocate Anil Drsquosouza