MANU/RR/0095/2021

BEFORE THE REAL ESTATE REGULATORY AUTHORITY

MAHARASHTRA
Complaint No. CC006000000171836
Decided On: 18.08.2021
Appellants: Manasi Narasimhan and Ors.
Vs.
Respondent: Larsen & Toubro Limited
Hon'ble Judges/Coram:
Ajoy Mehta, Chairperson
Counsels:
For Appellant/Petitioner/Plaintiff: Aditya Deolekar, Advocate i/by Trsna Legal
For Respondents/Defendant: Manish Gala, Advocate
ORDER
Ajoy Mehta, Chairperson
1. The Complainants are home buyers and Allottees within the meaning of Section 2 of
the Real Estate (Regulation and Development) Act, 2016 and the Respondents are
Promoters/Developers within the meaning of Section 2 (zk) of the Real Estate
(Regulation and Development) Act, 2016. The Respondents have registered their project
"EMERALD ISLE - T8" under section 5 of the Real Estate (Regulation and Development)
Act, 2016 ("said Act/RERA") bearing MAHARERA Registration No. P51800002230
(hereinafter referred to as the "said Project").
2. The Complainants seeks the following reliefs:
a. "This Hon'ble Authority be pleased to direct the Respondent pay interest for
every month of delay in handing over the possession of the said Flat at the rate
of highest marginal cost of lending rate of S.B.I plus 2% till its realization, in
terms of Section 12 read with Section 18 of the Real Estate (Regulation and
Development) Act 2016 with effect from the date of possession provided in
clause 23(a) till December 21, 2018 when the Respondent's Realty Division for
the first time offered -possession of the said Flat to the Complainants.
b. To pay compensation of Rs. 50,00,000/- (Rupees Fifty Lakhs Only) or such
other amount as this Hon'ble Authority may deem fit, to the Complainants due
to the failure of the Respondent's Realty Division to provide quality of interior
in the said Flat as assured in promised under the said Agreement and
harassment and agony caused to the Complainant as a result thereof as well as
for the financial strain that will be caused to the Complainant for redressing
such issues to the said Flat.
c. To refund of Rs. 20,90,060/- (Rupees Twenty Lakhs Ninety Thousand and
Sixty Only) being an amount equivalent to cost of area deficit between the
actual carpet area of the said Flat and the promised carpet area of such flat and
which has been paid by them to the Respondent's Realty Division.

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 d. To provide a parking layout to the Complainants with their allotted car
parking slots clearly marked out thereon.
e. A refund of Rs. 1,98,523.92/- (Rupees One Lakh Ninety-Eight Thousand Five
Hundred Twenty Three and Ninety Two Raise Only) which has been over
collected by the Respondent's Realty Division from the Complainants towards
common area maintenance in advance for 2 years towards the said Flat as the
same has been collected on super-built up area instead of per sq.ft. basis as
provided in the said Agreement.
f. To pay Costs of the Complaint be provided for; and
g. for such and other reliefs as this Hon'ble Authority may deem fit and proper
in the facts and circumstances of the present case."
3. On 01.07.2021, the following roznama was passed by this Authority:
"Both the Parties are present.
The Complainant submits that the possession was to be given in March 2017
with 6 months' delay buffer, however the possession was given only in
December 2018. The Complainant further submits that the area provided to him
is not as per agreement and seeks a joint measurement. The Complainant
further submits that the quality of the flat is poor and that the marble flooring
also has cracks. The Complainant also states that the parking provided to him is
not clearly demarked.
The Respondent submits that the delay has been due to various regulatory and
other delays which squarely fall in the exception for the date of possession as
mentioned in agreement. He further submits that the area of the flat is well as
per the details stated in the agreement which allows a tolerance of +/- 3%. On
the issue of parking, the Respondent submits that they have clearly mentioned
the number The Respondent also submits that the time of possession of the flat
was taken without any protest or demur and that these matters have been
raised subsequently. The Respondent points out to certain judgments which
estop the Complainant from arising the issues subsequent to taking the
possession of the flat.
The Complainant however disputes this and has in this context has cited
judgment to support his case that a dispute can be raised subsequent to
possession. He also submits that he has taken possession under protest.
Both the Parties are at liberty to file their written submission and also submit
the Architects' Certificate by 09.07.2021 subsequent to which the matter shall
be Reserved for Order."
4 . All the submissions of both the Parties are taken on record and for the sake of
brevity the facts and observations relevant for the complaint in context to the reliefs
claimed are as follows:
a. Vide an agreement for sale dated 16.05.2015 (hereinafter referred to as "said
agreement"), a flat No. 701 with 3 car parking in Tower 8 of the said Project
was purchased for a total consideration of Rs. 5,77,91,760/- (hereinafter
referred to as "said apartment") by the Complainants herein.

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b. The date of possession of the said apartment as per the said agreement was
March 2017 with 6 months' grace period. However, when the said Project was
registered with MahaRERA the date of completion of the said Project was
30.09.2017 and revised date of completion as 31.12.2018.
c. The occupation certificate ("OC") for the said apartment was received on
21.12.2018 and on 26.12.2018 the Respondent issued a possession demand
notice of the said apartment to the Complainants who took the actual
possession on 04.03.2019. A Possession Certificate on 04.03.3019 was signed
by the Complainants. It is pertinent to note here that till 04.03.2019 the
Complainants did not raise any issue with regard the delay caused in handover
of possession nor claim any interest for such delay caused. Also, while taking
the possession of the said apartment, they took possession without any
complaints.
d. With regard to the quality of the said apartment being poor, it is pertinent to
note here that the Complainants were offered inspection of the said apartment
on 29.12.2018 and that upon the said inspection no issues were raised.
Needless to say, that the provision of the said Act provides for a defect liability
period of 5 years under section 11(4) read with 14(3) it is the responsibility of
the Respondent, with respect to the structural defect or any other defect in
workmanship, quality or provision of services or any other obligations of the
Respondent as per the agreement for sale relating to such development when
brought to the notice of the Respondent within a period of five years by the
Complainants from the date of handing over possession, it shall be the duty of
the Respondent to rectify such defects without further charge.
e. Further upon getting the possession of the said apartment the Complainants
had received a parking allotment letter dated 04.03.2019 stating the three
parking slots, thus there is no ambiguity on the issue of parking slots allotted
to the Complainants.
f. With regard the relief for compensation is concerned the Complainants have
not showed any calculations and/or any documents to substantiate the demand
of Rs. 50,00,000/- as compensation with interest for deficit in the quality of
interior and the subsequent mental harassment because of the same. From the
facts it is clear that possession is offered on 26.12.2018, however the
Complainants take possession on 04.03.2019 and in the interim on 29.12.2018
they were offered inspection too. All along they did not raise any quality issues
and on 11.12.2019 they file the present complaint wherein without any details
or justifications they raise a demand of Rs. 50,00,000/-. This is preposterous to
say the least.
g. Further amounts paid towards common area maintenance in advance for 2
years towards the said apartment, these are collected as per the terms of the
said agreement. It is pertinent to note that the said agreement at clause No. 13
clearly mentions the additional payables by the Purchaser in addition to the
consideration of the said apartment and thus there is no ambiguity with regards
the said issue and both the Parties are bound by the terms of the said
agreement.
h. Lastly regarding the discrepancy in terms of the area of the said apartment,
the said agreement provides for a variation up to +/- 3% on account of any

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 design change and construction exigencies which the Complainants are aware
of and the same had been agreed upon to by them. Thus, at a later point to
raise the issue with regard the same is not acceptable nor can be changed as
the said agreement is binding upon both the Parties.
5 . From the above facts and observations, the following issues are framed for
consideration:
a. Whether the Complainants proves the violation of section 18 of the said Act
as on the date of filing the complaint?
b. Whether the Complainants are entitled seek compensation and refund of
amounts paid for difference on carpet area and towards additional payables
paid 2 years in advance?
6 . Before dealing with the facts and observations in this complaint, it is pertinent to
examine "possession" as contemplated under section 18 of the said Act:
"18. (1) If the promoter fails to complete or is unable to give possession of an
apartment, plot or building,-
(a) in accordance with the terms of the agreement for sale or, as the
case may be, duly completed by the date specified therein; or
(b) due to discontinuance of his business as a developer on account of
suspension or revocation of the registration under this Act or for any
other reason,
he shall be liable on demand to the allottees, in case the allottee wishes to
withdraw from the project, without prejudice to any other remedy available, to
return the amount received by him in respect of that apartment, plot, building,
as the case may be, with interest at such rate as may be prescribed in this
behalf including compensation in the manner as provided under this Act:
Provided that where an allottee does not intend to withdraw from the
project, he shall be paid, by the promoter, interest for every month of
delay, till the handing over of the possession, at such rate as may be
prescribed."
7. From the plain reading of section 18 it is very clear that if the Promoter (Respondent
herein) fails to handover possession as per the terms of the agreement for sale by the
specified date therein, the Allottee (Complainants herein) has a choice either to
withdraw from the said Project or stay with the Project. Further, in case the Allottee
(Complainants herein) chooses to not to withdraw from the said Project, the
Complainant is entitled to claim interest for every month of delay, till the handing over
of the possession, at such rate as may be prescribed. It is pertinent to note here that
the circumstance provided under section 18 is as on date of filing of the complaint.
8 . It is pertinent to note here in the present case that the intent of the said Act is to
regulate and promote the real estate sector in an efficient and transparent manner and
to protect the interest of consumers in the real estate sector. It is not the case of the
Complainants that the possession is still not handed over. The Complainants have been
silent from March 2017 till 21.12.2018 on the issue of delay in possession and have not
expressed the same while taking possession and/or while paying the balance amount

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towards the said apartment. However, it is admittedly clear that while there was a delay
in handing over possession from the submissions of both the Parties and also from the
MahaRERA records in terms of the extensions sought by the Respondent revising the
date of completion, but at the same time it is also true and evident that the Respondent
adhered to the timelines as stated before MahaRERA i.e. of completion date 31.12.2018
and offered possession to the Complainants on 21.12.2018. Needless to say, that on the
date of filing of the complaint this delay has not been the issue as possession and OC of
the said apartment was already in place.
9. It is important here to analyse section 18 of the said Act in true letter and spirit. The
first aspect is that there is no limitation defined in this section. Thus, in the event of a
delayed possession can the Purchaser (Allottee) of a flat (apartment) raise a demand for
interest at any point of time of his choice in the future? In fact, is the relief of seeking
interest on delayed possession available in perpetuity? A right to seek redressal of
grievance without any limitation would defy all commercial and legal logic. Every relief
and every commercial transaction have to be clearly defined by boundaries set by time.
In case there are no limitations, it would mean that no project would ever reach a
closure even on issues that are clearly defined and known. A delay in the delivery of a
project is a known and visible event to all at the time of delivery (in this case the date
of possession). This is not an unforeseen event that unfolds itself in the unforeseeable
future leading to a grievance which would require a relief. Thus, while section 18 does
not spell out a limitation period, the section has an inbuilt limitation as it does not
provide for raising and addressing grievances which are known today, in the future.
Hence, this Authority is constrained to rule that any grievance of delayed possession
must be raised either before or on date of possession and not on any future date chosen
by the Purchaser (Allottee). Any grievance raised later on account of delayed possession
would clearly be estopped by section 18. If this section was not self-limiting no real
estate project or commercial deal would ever see a financial closure. If known defaults
can be used to seek compensation at any time in the future it would mean that the
Developer (Promoter) would never be able to assess the true cost of the said Project
making real estate ventures extremely risky. The spirit of this enactment is to bring
finality and settlement in a time bound manner. In this complaint the possession was
taken on 04.03.2019 while the complaint was filed on 11.12.2019 i.e. almost 9 months
later. At the time of possession, the fact of delay was known to both the Parties, but the
Complainants choose not to raise it then. Thus, a grievance that was waived and/or
acquiesced by the Complainants at the time of possession cannot be raised later just to
reap some benefits.
1 0 . Interpretation of statute is the process of ascertaining the true meaning of the
words used in a statute and in no manner the said Act provides for any afterthought
situation and complaints arising from them after the completion of project. In the real
estate project time is of immense importance and value. The Complainants herein have
waived their right time to file the complaint before they took possession and/or before
the OC was received and thus, the violation of section 18 is not proved as on the date
of filing of the complaint and thus, answers to issue No. a is negative. And regarding
issue No. b the observation at para-No. 4(g) hereinabove clearly states that the
additional charges are as per the said agreement and thus, the answer to issue No. b is
negative too.
11. Further, one must note that if the Promoter (Respondent herein) is duty bound to
honour the agreement for sale in its true letter and spirit so also the Allottee
(Complainant herein) is duty bound to adhere to the terms of the agreement for sale
and either Party cannot shun of the from their duties and responsibilities under the

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agreement for sale.
12. The scheme of the said Act is to safeguards of the rights of an Allottee and provide
a forum for redressal of his grievances. However, at the same time the Authority is also
cast on with the duty of safeguarding and promoting the real estate industry.
FINAL ORDER
Thus, the complaint in view of the observations hereinabove is dismissed as the said
Project was complete with OC as on the date of filing of the captioned complaint and in
view thereof the Complainants have failed to prove any violation of section 18 of the
said Act as on the date of filing the complaint. No order as to cost.
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