SA-297-2021 & SA-298-2021 (J).doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO. 297 OF 2021

WITH

INTERIM APPLICATION NO.1149 OF 2026

WITH

INTERIM APPLICATION NO.324 OF 2021

IN

SECOND APPEAL NO. 297 OF 2021

Macrotech Developers Ltd.,

(early known as Bellissima Hi-Rise

Builders Pvt. Ltd.), a private limited

company incorporated under provisions

of the Companies Act, 1956 and having its

registered o�ce at, Lodha Excelus,

N. M. Joshi Marg, Mahalakshmi,

Mumbai – 400 011 ...Appellant/

Applicant

vs.

1. Suryakant Yashwant Jadhav,

an adult, Indian Inhabitant, having

address at A/102, Florentine,

Main Street, Hiranandani Gardens,

Powai, Andheri – East,

Mumbai – 400 076

2. Suryakant Jadhav HUF,

having address at A/102, Florentine

Main Street, Hiranandani Gardens,

Powai, Andheri – East,

Mumbai – 400 076

3. Bankim Ashok Doshi

4. Sushant Keru Hirve

5. Palava Dwellers Pvt. Ltd.

Respondent Nos. 3 to 5

Lodha Excelus, N. M. Joshi Marg,

Mahalakshmi, Mumbai – 400 011 ...Respondents

Arya Chavan/SQ Pathan 1/25

SA-297-2021 & SA-298-2021 (J).doc

WITH

SECOND APPEAL NO. 298 OF 2021

WITH

INTERIM APPLICATION NO.1152 OF 2026

WITH

INTERIM APPLICATION NO.313 OF 2021

IN

SECOND APPEAL NO. 298 OF 2021

Macrotech Developers Ltd.,

a company incorporated under provisions

of the Companies Act, 1956 and having its

registered o�ce at, Lodha Excelus,

N. M. Joshi Marg, Mahalakshmi,

Mumbai – 400 011 ...Appellant/

Applicant

vs.

1. Suryakant Yashwant Jadhav,

an adult, Indian Inhabitant, having

address at A/102, Florentine,

Main Street, Hiranandani Gardens,

Powai, Andheri – East,

Mumbai – 400 076

2. Suryakant Jadhav HUF,

having address at A/102, Florentine

Main Street, Hiranandani Gardens,

Powai, Andheri – East,

Mumbai – 400 076

3. Bankim Ashok Doshi

4. Sushant Keru Hirve

5. Palava Dwellers Pvt. Ltd.

Respondent Nos. 3 to 5

Lodha Excelus, N. M. Joshi Marg,

Mahalakshmi, Mumbai – 400 011 ...Respondents

_____________

Mr. Amogh Singh a/w Mr. Rahul Arora, Ms. Silpa Nir and Ms.

Himanshi Mishra i/b Mr. Jeet Gandhi for the Appellant/Applicant

Mr. Nitin Thakkar, Senior Advocate a/w Mr Munaf Virjee and Ms.

Arya Chavan/SQ Pathan 2/25

SA-297-2021 & SA-298-2021 (J).doc

Shruti Salian i/b AMR Law for the Respondent Nos.1 and 2

_____________

CORAM : SHARMILA U. DESHMUKH

RESERVED ON : APRIL 9, 2026

PRONOUNCED ON : JUNE 8, 2026

JUDGMENT:

1. Both the Second Appeals arise out of common judgment

dated 12

th

January 2021 passed by the Maharashtra Real Estate

Appellate Tribunal, Mumbai challenging the common order dated

6

th

March, 2019 passed by Adjudicating Authority-MahaRERA

rejecting the Respondent-allottee’s application under Section 18

of The Real Estate (Regulation and Development) Act, 2016 (for

short “RERA”). Vide impugned judgment dated 12

th

January,

2021, the Appellant was directed to refund the amount received

from the Respondents along with interest with liberty to allottee

to �le petition for compensation before the Adjudicating O�cer

under Section 71 and 72 of RERA.

2. The undisputed facts as borne out from the impugned

order dated 12

th

January, 2021 is that Respondents booked two

apartments being Flat Nos 901-H and 902-H in the Appellants

project being Palava Lakeside A to H situated at Palava, Kalyan.

The parties duly executed and registered the Agreements for Sale

in respect of the said apartments and claim to have paid about

95% to 96% of purchase consideration in respect of the said �ats.

Arya Chavan/SQ Pathan 3/25

SA-297-2021 & SA-298-2021 (J).doc

Claiming delay in handing over possession, the Respondents

decided to withdraw from the project and sought refund of

consideration paid along with interest and compensation. Due to

non compliance by the Appellants, an application came to be �led

under Section 18 of RERA before MahaRERA, which came to be

disposed of and Appeal was preferred in which the impugned

judgment came to be passed.

3. By order dated 23

rd

November 2025, the Appeal came to be

admitted on the following substantial question of law:

“(a) Whether the complaint as �led by the

Respondents before the Maharashtra Real Estate

Regulatory Authority is maintainable under Section

18 of RERA Act ?”

4. During the hearing, this Court framed the following

additional substantial questions of law:

(a) Whether the clause in the �at purchasers

agreement providing for grace period is contrary to

the statutory provisions of RERA ?

(b) Whether the �at purchaser is entitled to

withdraw from the project within the grace period

upon failure of the developer to adhere to the date

of handing over possession to the purchaser for �t

Arya Chavan/SQ Pathan 4/25

SA-297-2021 & SA-298-2021 (J).doc

out?

5. Learned counsel for the parties were heard at length and

the substantial questions of law are being decided by this

common judgment.

6. Mr. Singh, learned counsel for the Appellant would point

out Clause 1.13 and Clause 1.14 of the �at purchaser’s agreement

which de�nes the date of o�er of possession for �t-out and date

of o�er of possession to mean the date as speci�ed in Annexure–

2, which was 28

th

February, 2017, and the date on which the

occupation certi�cate is issued respectively. He submits that the

date of possession is linked to the date of possession for �t outs.

Pointing out the pleadings in the complaint, he submits that the

case of the Respondents was that possession was to be handed

over on 28

th

February, 2017, which is the date of possession for �t

outs and not �nal possession. He would further point out the

admission in the complaint that the Appellants had written to the

Respondents on 21

st

June, 2018 that the apartments are ready for

possession. He submits that the date of issuance of occupation

certi�cate is 10

th

May, 2018.

7. He submits that Section 18 of RERA refers to “date

speci�ed”, which is required to be considered as per Clause 11

read with Annexure-2 of the �at purchaser's agreement. He

Arya Chavan/SQ Pathan 5/25

SA-297-2021 & SA-298-2021 (J).doc

submits that clause 11 of the agreement governs the

arrangement as regards handing over possession for �t-outs and

�nal possession and the agreement provided for grace period of

one year beyond the dates mentioned for �t-out possession and

�nal possession, and therefore, the outer limit for handing over

the possession was 28

th

February, 2019 by including the grace

period. He submits that on 21

st

June, 2018, the Appellant

addressed a letter to the Respondents o�ering possession of the

�ats which was within the period as agreed in the �at purchasers’

agreement. He submits that in view thereof, there was no cause

for complaint of delayed possession and Section 18 of RERA was

not applicable and the order of �rst Authority was rightly passed.

8. He has taken this Court through the judgment of the

Appellate Tribunal and would point out that the members of the

Appellate Tribunal rendered two di�erent but concurring

judgments. He points out the �ndings of the Appellate Tribunal

that there is no concept of �t-out possession and that the �nal

date of possession was taken as 28

th

February, 2018 and submits

that by disregarding the terms of agreement has held that the

application was maintainable under Section 18 of the RERA. He

submits that relying upon the decision in the case of Neelkamal

Realtors Private Limited vs Union of India And Ors

1

, the

1 AIR 2018 (NOC) 398 (BOM)

Arya Chavan/SQ Pathan 6/25

SA-297-2021 & SA-298-2021 (J).doc

Appellate Tribunal held that provisions of grace period is against

the spirit of Section 18 of RERA and will not help the promoter to

change the speci�ed date of possession as mentioned in the

agreement. He submits that in the concurring decision by the

other member of the Tribunal, it is held that once �nal possession

is agreed to be given by 28

th

February, 2018, there is no question

of further grace period of one year. He submits that the learned

member has further held that the agreement is one-sided

agreement and was executed without disclosing the contents

thereof to the allottees prior to its execution and is not binding

being unfair and unreasonable, without any such case of the

Respondents.

9. He submits that the learned Member has questioned the

OC obtained on 10

th

May, 2018 on the ground that the same was

not referred in the communication dated 21

st

June, 2018. He

points out to the communication dated 21

st

June, 2018 addressed

to the Respondents informing them that the �at is ready for

possession and would point out that the Respondents were

speci�cally called upon to make the requisite payments by 5

th

July, 2018 to enable them to initiate the process of hand over of

the �ats. He submits that in light of the speci�c contents of the

communication dated 21

st

June, 2018, the non-mention of OC

Arya Chavan/SQ Pathan 7/25

SA-297-2021 & SA-298-2021 (J).doc

obtained on 10

th

May, 2018 does not cast any doubt about the OC

having been obtained on 10

th

May, 2018.

10. He submits that there is no express bar on providing for the

grace period, which is not shown to be inde�nite, and there is an

outer limit to the grace period. He submits that the agreement

entered into was executed on 16

th

May, 2014 before RERA was

enacted, and after the enactment of RERA, the possession can be

handed over only after receiving OC, which is the communication

of 21

st

June, 2018. He would further submit that under Section

11(4)(b) of RERA, the promoter is responsible for obtaining

occupancy certi�cate and to make it available to the allottee and

under Section 19(10) of RERA, every allottee is required to take

physical possession of the apartment, plot or building, as the case

may be, within a period of two months of the OC issued for the

said apartment, plot or building, as the case may be, which the

Appellants have done within the speci�ed period. In support, he

relies upon the following decisions :

(i) IREO Grace Relatech Pvt. Ltd. vs. Abhishek Khanna &

Ors.

2

(ii) Supertech Ltd. vs. Rajni Goyal

3

(iii) AAJ Legal and Management Consultancy vs. Keltech

2 (2021) 3 SCC 241

3 (2019) 17 SCC 681

Arya Chavan/SQ Pathan 8/25

SA-297-2021 & SA-298-2021 (J).doc

Infrastructure Ltd.

4

(iv) Lanco Hills Technology Part Pvt. Ltd. vs. Manisha

Balkrishna Kulkarni & Anr.

5

(v) Kolkata West International City Pvt. Ltd. vs. Devasis

Rudra

6

(vi) Leena Thomas vs. Dominic Fonseca & Ors.

7

11.Per contra, Mr. Thakkar, learned Senior Advocate for the

Respondents would point out the communications of 14

th

May,

2018 and 22

nd

March, 2018 addressed by the Respondents to the

Appellants raising a grievance about the delayed possession

which was to be given on 28

th

February, 2017. He submits that it

was speci�cally mentioned that almost 95% of the total

consideration was received and that the Respondents had never

consented to such grace period, which is not contemplated under

the statutory enactment. He submits that vide communication

dated 14

th

May, 2018, as the possession was not handed over as

demanded by the letter of 22

nd

March, 2018, the Respondents

withdrew from the project. He submits that the communication of

21

st

June, 2018 makes no mention of the OC stated to have been

received on 10

th

May, 2018, and there is no document furnished to

4 2021 SCC OnLine SC 254

5 (2020) 11 SCC 699

6 (2019) SCC OnLine SC 438

7 (2017) SCC OnLine Bom 9388

Arya Chavan/SQ Pathan 9/25

SA-297-2021 & SA-298-2021 (J).doc

the Respondents to show receipt of OC. He submits that for the

�rst time before the Appellate Authority, the submission was

canvassed about receipt of OC. He would further point out that

the architect's certi�cate submitted by the Appellant before the

Appellate Authority dated 21

st

June, 2018 certi�es that the

buildings are under construction and that the work status on 21

st

June, 2018 was that the �t-out possession is initiated, which

negates the contention that OC was received on 10

th

May, 2018.

He submits that the OC is in fact uploaded in the year 2021. He

submits that the right to receive the interest for the delayed

possession under Section 18 of RERA is unquali�ed. He submits

that in the case of Venkataraman Krishnamurthy & Anr. vs Lodha

Crown Buildmart Pvt. Ltd.

8

the Hon’ble Apex Court has

considered an identical clause where the possession for �t-out in

that case was to be handed over on 30

th

June 2016, and by grace

period of one year, the date of delivery of possession stood

extended till 30

th

June, 2017. He submits that the Hon’ble Apex

Court has interpreted the clauses as not applying separate grace

period applicable to the possession for �t-out and the �nal

possession, and has held that the date of �nal possession would

be within a period of one year from the date of o�er of

possession for �t-outs. He submits that the Hon’ble Apex Court

8 2024 (SC) 184

Arya Chavan/SQ Pathan 10/25

SA-297-2021 & SA-298-2021 (J).doc

had held that as the Respondents therein did not o�er delivery of

possession of �t-outs by that date and the consequences which

were provided therein, permitted withdrawal from the project.

12. He submits that the Hon’ble Apex Court has held that the

allottee can withdraw within the grace period, which has been

done in present case. He points out the �nding of the Appellate

Tribunal that possession with occupancy certi�cate ought to have

been given on or before 28

th

February, 2018 as per the �at

purchasers agreement and that it was o�ered in June, 2018.

Mr. Thakkar would submit that once the �nal date of possession is

not adhered to, the Respondents can withdraw from the project

and that the architect's certi�cate makes it clear that even on 21

st

June, 2018, it was only the possession for �t-outs initiated which

was beyond the period of one year. In support, he relies upon the

following decision :

(i) Venkataraman Krishnamurthy & Anr. vs Lodha Crown

Buildmart Pvt. Ltd. (Supra).

13. In rejoinder, Mr. Singh would submit that the judgment in

the case of Venkataraman Krishnamurthy & Anr. (supra) did not

hold the provision of the grace period to be contrary to the

statutory provisions of RERA. He further submits that under

Section 3 of RERA, prior registration of a real estate project is

Arya Chavan/SQ Pathan 11/25

SA-297-2021 & SA-298-2021 (J).doc

mandatory, including for ongoing projects for which completion

certi�cates have not been issued. He submits that the speci�ed

date is the date of OC which in the present case was received on

10

th

May, 2018.

REASONS AND CONCLUSION:

14. This Court framed three substantial questions of law and

the �rst substantial question of law is as regards the

maintainability of the complaint under Section 18 of RERA Act.

The �rst Authority has held that the provisions of Section 18 of

RERA applied only till the project is incomplete or promoter is

unable to give possession. The submission canvassed by the

Appellants before the �rst Authority was that part occupation

certi�cate was received on 10

th

May, 2018. The Appellate

Authority held that Section 18 of RERA was attracted to the

dispute by holding that the date speci�ed in �at purchaser’s

agreement is 28

th

February, 2018 and the Appellants are not

entitled to extension of speci�ed date on basis of the clause

regarding grace period.

15. The complaint �led by the Respondents stated that the

possession was to be handed over on 28

th

February, 2017, which

has been delayed, and by communications dated 14

th

March, 2018

and 22

nd

March, 2018, the Respondents had called upon the

Arya Chavan/SQ Pathan 12/25

SA-297-2021 & SA-298-2021 (J).doc

Appellant to hand over possession within a period of 30 days,

which was not adhered to, as a result of which the Respondents

withdrew from the project vide communication dated 14

th

May,

2018. The complaint sought a direction, inter alia, for refund of

the total amount paid by the Respondents along with interest

under Section 18 of RERA.

16. The adjudication of the �rst substantial question of law is

fact laden and will have to be considered in light of the various

clauses in the �at purchasers’ agreement to determine the

applicability of Section 18. Before proceeding to the facts, it

would be apposite to refer to Section 18(1) of RERA, which reads

as under:

“18. Return of amount and compensation. —(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 speci�ed

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.”

17. Section 18(1) is triggered upon the failure of the promoter

Arya Chavan/SQ Pathan 13/25

SA-297-2021 & SA-298-2021 (J).doc

to complete the construction or hand over possession either;

(a) as per the terms of the agreement; or (b) by the date speci�ed

in the agreement, the consequence being the entitlement of the

allottee to withdraw from the project and refund of the amounts

paid along with interest and compensation.

18. Section 18 of RERA gives primacy to the terms of the

agreement entered into between the parties. The expression

used therein indicates that parties are at liberty to decide the

manner and the date on which possession will be handed over.

There is no statutory embargo on provision of grace period. The

object of RERA is to make the promoters accountable for

completing the project and handing over project in a time bound

programme. The parties are free to contract the timelines within

which possession is required to be handed over. There is no

provision demonstrated which prohibits the timelines to be

computed by factoring in grace period.

19. Section 18 of RERA discloses that the statutory right to

claim refund of amounts along with interest and compensation

accrues to the �at purchasers upon failure of promoter to hand

over �nal possession. Taking advantage of this criteria, the

Appellant seeks to contend that as �nal possession was to be

handed over in 2019 and possession was sought to be handed

Arya Chavan/SQ Pathan 14/25

SA-297-2021 & SA-298-2021 (J).doc

over on 21

st

June, 2018, there was no cause of action for Section

18 of RERA. In the present facts, the maintainability of Section 18

application would involve a determination as to whether the

Appellants have failed to hand over �nal possession by the date

speci�ed in the agreement.

20. The �at purchaser's agreement was executed in 2014,

which was pre-RERA enactment, and thereafter, as the project

was an ongoing project, the project came to be registered under

RERA. Clause 1.13 of the �at purchaser's agreement de�nes the

date of o�er of possession for �t-outs to mean the date as

speci�ed in Annexure-2. Annexure-2 speci�es the date of o�er of

possession for �t-outs as 28

th

February, 2017. Clause 1.14 of the

agreement de�nes the date of o�er of possession to mean the

date on which the OC is issued or deemed to be issued as per the

relevant provisions of legislation. Relevant for our purpose are

Clauses 11.1, 11.2, 11.3 and 20(w), which read as under:

“11. FIT OUTS AND POSSESSION

11.1 Subject to the Purchaser not being in breach of any of the

terms hereof and the Purchaser having paid all the dues and

amounts hereunder including the Total Consideration. The

Company shall endeavor to provide the Unit to the Purchaser for

�t outs on or before the date as set out in Annexure "2" hereto.

The Company shall endeavor to make all necessary submissions to

obtain the occupation certi�cate in respect of the Unit of the

Building and make available the key Common Areas and

Amenities in respect of the Building within a period of 1 (One)

year from the Date of O�er of Possession (for Fit Outs) as set out

in Annexure "2" hereto and this shall be deemed to be the �nal

possession of the Unit.

Arya Chavan/SQ Pathan 15/25

SA-297-2021 & SA-298-2021 (J).doc

11.2 The Company shall without being liable to the Purchaser, be

entitled to a grace period of 1 (One) year beyond the aforesaid

dates mentioned in the Clause 11.1. The date on which the

occupation certi�cate is issued (or deemed to be issued as per the

relevant provisions of legislation) shall be deemed to be the "Date

of O�er of Passion".

11.3 Delay in handover of possession (for �t outs) Subject to the

provisions of Clause 11.5 hereof and the Purchaser having paid all

the amounts due and payable hereunder, in the event the

Company fails to give the possession of the Unit (for �t outs) by

the date stated in Annexure-2 and the aforesaid grace period,

then within 30 (thirty) days of expiry of such grace period, the

Company shall inform the Purchaser the revised date by which the

Unit is likely to be ready for being o�ered for possession for �t

out. Upon expiry of such grace period, the Purchaser may elect to

continue with this Agreement in which case, the date of o�er of

possession for �t outs mentioned in Annexure-2 shall stand

revised to and substituted by the revised date of o�er of

possession for �t outs as communicated by the Company.

Alternatively, the Purchaser may by giving notice in writing elect

to terminate this Agreement. Provided that such right to

terminate shall be exercised by the Purchaser within a period of

90 days from the expiry of the aforesaid grace period. In the event

the letter of termination is not received by the Company within

the said period of 90 days or is received after the said period of 90

days, the Purchaser shall, without the Company being liable to

the Purchaser, be deemed to have elected to continue with the

Agreement to Sell and the Purchaser shall deemed to have waived

his right to terminate this Agreement. In the event that the

termination, is done within 90 days from the expiry of the

aforesaid grace period, the Company shall refund to the

Purchaser the Total Consideration amount or part thereof paid by

the Purchaser In 12 equal monthly installments through post

dated cheques together with simple interest thereon at the rate

of 12%. per annum from the date of receipt of the Total

Consideration or part thereof till repayment. The �rst monthly

Installment shall commence from the 13th month of the date of

receipt of the said letter of termination and ending on the 24th

month thereof.”

“20(w) The Purchaser acknowledges that as on the Date of o�er

of Possession (for �t outs) work in the Unit shall be complete and

the Unit shall have regular water and electricity supply, as well as

lift access. There may be certain works which may be ongoing in

the Building/development/Property at such time but all due care

shall be taken to ensure that the �t outs of the Units are not

a�ected in any manner by such works. It is clari�ed that the O�er

of Possession (for �t outs) entitles the Purchaser to carry on

interior and other related works in the Unit but does not entitle

the said Unit to be occupied till such time that the occupation

Arya Chavan/SQ Pathan 16/25

SA-297-2021 & SA-298-2021 (J).doc

Certi�cate is received in relation to the said Unit.

…..”

21. The clauses in the agreement indicates that the parties

linked the date of handing over �nal possession to the date of

possession for �t outs. As per Clause 11.1 of the �at purchaser’s

agreement, the date of possession for �t outs was 28

th

February,

2017 and the �nal possession was to be handed over within

period of one year from date of o�er of possession for �t outs.

Clause 11.2 provides for grace period of one year beyond the

dates mentioned in Clause 11.1.

22. In the case of Venkatraman Krishnamurthy & Anr. (supra),

the Hon’ble Apex Court was considering identical clauses relating

to date of possession for �t-outs and �nal possession. The

Hon’ble Apex Court held that the grace period extended the date

of delivery of possession for �t outs by one year. The Hon’ble

Apex Court noted in paragraph 10 as under:

“10. Cursory overview of the above clauses manifests that the

respondent-company was to deliver possession of the apartment to the

appellants for �t outs by 30

th

June,2016 but grace period of one year was

provided under Clause 11.2, whereby the date of delivery of such

possession stood extended till 30

th

June, 2017. Clause 21u indicates that

the works in the apartment, so far as the respondent-company is

concerned, were to be completed by that date and the apartment was to

have regular water and electricity supply, apart from lift access and the

appellants could carry on interior and other related works therein.

Further as per Clause 11.1, the respondent company was required to

obtain completion certi�cate in respect of the apartment and make

available the key common areas and amenities in the building within one

year from the date of o�er of possession for �t outs. That was deemed

Arya Chavan/SQ Pathan 17/25

SA-297-2021 & SA-298-2021 (J).doc

to be the �nal possession of the apartment in terms of Clause 11.2, This

date for �nal possession was also extendable by one year i.e. upto

30.06.2018.”

23. In that case, the date of o�er of possession for �t outs was

30

th

June, 2016 as per Annexure-2 of the agreement therein. The

Hon’ble Apex Court has interpreted identical terms of contract to

hold that the date of o�er of possession for �t outs was

extendable by virtue of the grace period by period of one year i.e.

till 30

th

June, 2017 and the date of �nal possession was also

extendable by one year i.e. up to 30

th

June, 2018. Applying the

said interpretation to the present facts, the date of possession

for �t outs was 28

th

February 2017 and by virtue of grace period

stood extended to 28

th

February, 2018. The date of �nal

possession was also extendable by one year i.e. 28

th

February,

2019. In the Interim Application, it is pleaded that the actual

speci�ed date of handing over possession after taking into

consideration the contractual grace period would be 28

th

February, 2020. The grace period cannot be applied twice over,

once to date of possession for �t outs and thereafter again to the

date for �nal possession. Pertinently, in the list of dates and

events tendered by the Appellants, it is stated that as per the

agreement for sale, the last date for handing over possession

after taking grace period into consideration and after obtaining

Arya Chavan/SQ Pathan 18/25

SA-297-2021 & SA-298-2021 (J).doc

OC would come to 28

th

February, 2019 and that the occupation

certi�cate was received on 10

th

May, 2018.

24. The contention of Mr. Singh is that the date of �nal

possession would be determinative of applicability of Section 18

and even accepting the extendable date of 28

th

February, 2019,

the occupation certi�cate had been obtained on 10

th

May, 2018

within the period speci�ed. It is not demonstrated that the

Appellants has met the date of handing over possession of the

�ats for �t outs even by the extended period of 28

th

February,

2018. Straightaway by the communication of 21st June, 2018, the

Respondents were directed to take possession. The

communication does not mention about receipt of OC or

possession is handed over for �t outs or is �nal possession. The

statutory provisions of RERA do not recognise any concept of

possession for �t outs and provides for the rights and obligations

of the parties with respect of the date of handing over �nal

possession. The date of possession for �t outs would be relevant

only for determining the date of �nal possession. Where the

Appellant failed to hand over possession for �t outs by 28th

February, 2018, the Appellants cannot take disadvantage of their

own failure to comply with the terms of agreement to factor in

the grace period applicable to date of possession for �t outs and

Arya Chavan/SQ Pathan 19/25

SA-297-2021 & SA-298-2021 (J).doc

defer the date of �nal possession. The date of possession for

�touts could be put in action only where there is compliance and

not otherwise. As the possession of the �ats were not handed

over for �t outs, as per the agreed terms, the date of �nal

possession would have to be determined in accordance with

Clause 11.1 by taking into consideration the date mentioned in

Annexure-2 without the grace period and by doing so, the date of

�nal possession would be one year from the date mentioned in

Annexure-2 i.e. 28

th

February, 2018.

25. As there was failure to hand over �nal possession by 28

th

February, 2018, the statutory right granted under Section 18 of

RERA accrued to the Respondents. The application under Section

18 of RERA was maintainable. The �rst authority had accepted

the submission of the Appellants that part occupation certi�cate

was obtained on 10

th

May, 2018 and therefore Section 18 would

not apply. The �rst Authority failed to notice the language of

Section 18 (1)(a) and the terms of the agreement to ascertain the

date by which �nal possession was required to be handed over. It

also failed to notice that part occupancy certi�cate could not be

construed as completion of project. The Appellate Tribunal has

rightly considered the date of �nal possession as 28

th

February,

2018 and there is no perversity demonstrated. The �rst

Arya Chavan/SQ Pathan 20/25

SA-297-2021 & SA-298-2021 (J).doc

substantial question is answered accordingly.

26. The second substantial question of law framed was

whether the provision of grace period is contrary to the statutory

provisions of RERA. The said question of law was framed in view

of the �nding of the Appellate Authority that Section 18 of RERA

is absolute on speci�ed date, which is not extendable. In the

present case, the �at purchaser’s agreement is pre-RERA

enactment and was governed by MOFA regime. Section 4 of

MOFA prescribes the �at purchaser’s agreement to specify the

date by which possession is to be handed over to the purchaser.

The date of �nal possession though linked to the date of

possession for �t outs was not open ended and speci�ed the date

as one year from the date of handing over possession for �t outs.

There is no statutory embargo under MOFA preventing the

parties for deciding the manner of computation of date of �nal

possession. The Appellate Tribunal failed to notice that the �at

purchasers agreements were executed in the year 2014. It is well

settled that RERA does not contemplate re-writing of contract

between the parties. The question as framed, in view of the

factual scenario of the agreements being pre-RERA does not arise

for consideration. The decisions cited by Mr. Singh were in the

context of determination of date for handing over possession by

Arya Chavan/SQ Pathan 21/25

SA-297-2021 & SA-298-2021 (J).doc

including grace period. As the question of grace period being

contrary to RERA does not arise in present factual scenario, the

decisions do not require consideration.

27. The next substantial question of law is as to the

entitlement of �at purchaser to withdraw from the project within

the grace period, which question arises from interpretation of

the terms of the agreement and the statutory provisions of RERA.

Clauses 11.1 and 11.2 of the agreement imposes an obligation on

the Appellants to hand over possession of the �ats for �t outs

within the extendable period i.e. upto 28

th

February, 2018.

Admittedly the possession of the �ats were not handed over for

�t outs till 28

th

February, 2018. The Respondents addressed

communication dated 22

nd

March, 2018 calling upon the

Appellants to hand over possession of the �ats within a period of

30 days failing which the Respondents shall withdraw from the

project. As there was non-compliance, vide letter dated 14

th

May,

2018, the Respondents withdrew from the project.

28. The Respondents were entitled to withdraw from the

project under Section 18 of RERA upon the Appellant's failure to

hand over �nal possession by 28

th

February, 2018 as well as under

the terms of the �at purchaser’s agreement. Clause 11.3 of the

agreement gave an option to the purchaser, where there is a

Arya Chavan/SQ Pathan 22/25

SA-297-2021 & SA-298-2021 (J).doc

delay in handing over possession for �t-outs, to terminate the

agreement within a period of 90 days. In the present case, the

extendable grace period for handing over possession for �t-outs

expired on 28

th

February, 2018 and within a period of 90 days, the

Respondents elected to withdraw from the project as per Clause

11.3 of the agreement.

29. The �at purchaser’s agreement provided for �t outs by 28

th

February, 2017 with grace period of one year i.e. till 28

th

February,

2018. The �nal possession was to be handed over within period of

one year from date of �t outs i.e. till 28

th

February, 2019. The

communication of 21

st

June, 2018 calls upon the Respondents to

take possession of the said apartments. Clause 1.14 of the

agreement refers to the date of o�er of possession as the date

on which the occupation certi�cate is issued. The communication

of 21

st

June, 2018 does not make any reference to the OC having

been received and does not specify as to whether the possession

was being handed over for the purpose of �t-out or was �nal

possession. The communication of 21

st

June, 2018 calls upon the

Respondents to make the requisite payment by 5

th

July, 2018 to

enable the Appellants to initiate the process of handing over the

residence. Pertinently, the architect's certi�cate of the same date,

i.e., 21

st

June, 2018, which is produced before the Appellate

Arya Chavan/SQ Pathan 23/25

SA-297-2021 & SA-298-2021 (J).doc

Authority, certi�es that the building is under construction, and

the work status as on 21

st

June, 2018 was at the stage of initiation

of �t-out possession. The order of �rst Appellate Authority

records the submission of the Appellants that part occupation

certi�cate for the project was obtained on 10

th

May, 2018. Clause

1.14 de�nes the date of o�er of possession as the date on which

the occupation certi�cate is issued. Reading the order of �rst

Appellate Authority with the architect’s certi�cate and the terms

of the agreement, the Respondents having withdrawn from the

project within 90 days of expiry of extendable grace period of

date of possession for �t outs were well within their right to seek

the reliefs contemplated under Section 18 of RERA. The question

of law is answered accordingly.

CONCLUSION:

30. In light of the above discussion, the substantial questions

are answered as under:

(a) The application under Section 18 of RERA was

maintainable as there was failure on part of

Appellants to hand over possession as per the date of

�nal possession computed under Clause 11.1 of the

�at purchaser’s agreement i.e. 28

th

February, 2018.

(b) The question as to whether provision of grace

Arya Chavan/SQ Pathan 24/25

SA-297-2021 & SA-298-2021 (J).doc

period is contrary to statutory provisions of RERA,

does not arise for consideration as the �at

purchaser’s agreements were pre-RERA enactment.

(c) The Respondents were well within their right to

withdraw from the project under Section 18 of RERA

as well as under the terms of the �at purchaser’s

agreement and were entitled to the reliefs granted

by the impugned judgment.

31. In view of the �ndings of the substantial questions of law,

the order of Appellate Authority does not deserve interference.

32. Second Appeals stand dismissed.

33. Interim Applications do not survive for consideration and

stands disposed of.

(SHARMILA U. DESHMUKH, J.)

Arya Chavan/SQ Pathan 25/25