Sumant M. Kolhe JUDGMENT
Sumant M. Kolhe, Member (J)
Nature of Appeal
1. Appellant-allottee has challenged the final order dated 03.05.2018 passed by Ld. Member and Adjudicating Officer of MahaRERA Authority in complaint No. CC006000000012373 whereby the complaint was dismissed for the reason that Section 18(1)(a) of RERA Act, 2016 is not attracted on account of receiving the possession by the Allottee.
Status of parties and other litigation
2. Allottee is the complainant. Promoter is the Respondent. I will refer the parties as per their status as allottee and promoter. Complaints No. CC006000000012373 and complaint No CC006000000023296 were filed by two allottees against the present promoter for claiming interest for every month of delay in handing over the possession as per Section 18 sub-section (1) of RERA Act, 2016.
Complaint No. CC006000000012373 was filed by the present allottee Complaint No. CC006000000023296 was filed by another allottee. Both the complaints are dismissed by MahaRERA Authority by common order. Present allottee has challenged the said order by preferring this appeal Another allottee has not filed the appeal. So. I will refer the present appellant as allottee in this matter.
Case of Allottee
3. Promoter launched the project namely Emerald Isle at Powai Estate. Saki Vihar Road, Powai. Mumbai Allottee had booked the flat No. 306 admeasuring 635.51 sq.ft. situated on 3rd floor in Tower 4(T4), of the said project. Promoter agreed to sale the said flat for consideration of Rs. 1,70,02085/- (Rs. One Crore Seventy Lakhs Two Thousand and Eighty Five) Accordingly registered agreement for sale was executed between the parties on 12.09.2016 Promoter agreed to hand over the possession of the flat on or before October, 2016. Allottee had paid the price as per agreed terms in an agreement for sale. Promoter failed to hand over the possession of the flat on or before October, 2016 Possession of the flat was given to the allottee belatedly on 05.12.2017. There is a delay of 15 months in handing over the possession of the flat to the allottee on the part of promoter. So. allottee filed complaint for recovery of interest on period of delayed possession under Section 18(1)(a) of RERA Act 2016 against the promoter.
Case of Promoter
4. Promoter restated the complaint and challenged it's maintainability by contending that Allottee has already received the possession and once allottee has taken the possession. Section 18 (1)(a) of RERA Act, 2016 is not attracted and the complaint is not maintainable. It is also contended that allottee is not entitled for interest on period of delayed possession and compensation Nature of inquiry, procedure and decision of complaint by Ld.
Adjudicating Officer
5. After hearing both the sides, the Ld Member and Adjudicating Officer framed the issue as to whether the complaint filed by the allottee for claiming interest on the delayed period after getting the possession of the flat is maintainable under Section 18 of the Act The Ld. Member and Adjudicating Officer MahaRERA observed that Section 18 of RERA Act, 2016 makes it clear that only when the promoter fails to complete or is unable to give possession of the fiat, then allottee is entitled to claim interest for every month of delay. According to Ld. Member and Adjudicating Officer MahaRERA simple tense is used by the legislature by enacting this provision and it indicates that right to claim interest continues so long as construction is incomplete and delay in handing over the possession lasts, and once the construction is complete or the possession is given as the case may be then Section