MahaRERA Orders Correction for Unilateral Flat Renumbering & Awards Delay Interest

Chandrakala Laxman Gajbhiye Vs Magniton Infra (Maharashtra Real Estate Regulatory Authority, Mumbai)

The Maharashtra Real Estate Regulatory Authority (MahaRERA), Mumbai, in Chandrakala Laxman Gajbhiye Vs Magniton Infra, partly allowed a complaint seeking reliefs relating to delayed possession, correction of flat numbering, execution of rectification documents, completion of interior work, and execution of a sale deed.

Background

The complainants entered into a registered Agreement for Sale dated 08.09.2016 for purchase of Apartment No. 701 in the project “The Address” for a total consideration of Rs. 44,00,000. Under Clause 7 of the agreement, the promoter agreed to hand over possession on or before 30.09.2017 and execute the registered sale deed.

The complainants stated that they paid Rs. 35,00,000 through RTGS/NEFT and alleged that the remaining Rs. 10,00,000 was paid in cash after repeated demands by the promoter. They contended that despite the agreed possession date, possession was never handed over and the promoter unilaterally extended the possession date on the MahaRERA website without informing them.

The complaint also narrated that during this period one of the original complainants underwent prolonged treatment for vocal cancer and subsequently passed away in June 2023. His legal heirs were brought on record.

Possession and Occupation Certificate

The complainants submitted that the promoter issued a possession letter and assurance letter dated 01.01.2020, promising completion of the apartment’s interior work. However, they argued that the project had not received an Occupation Certificate (OC) and therefore legal possession could not be accepted. They further asserted that the apartment remained incomplete and did not contain the fixtures and fittings promised under the project prospectus.

After visiting the project in November 2021 and again in May 2022, the complainants found that the interior work remained unfinished despite repeated assurances.

Dispute Regarding Flat Numbering

A major dispute arose regarding the identity of the apartment.

According to the complainants, they had purchased Flat No. 701, but upon visiting the project they discovered that another apartment had been created on the seventh floor and allotted Flat No. 701, while their apartment had been renumbered as Flat No. 702.

The complainants alleged that:

• the promoter executed a Deed of Correction dated 14.02.2017 without informing or obtaining their consent;
• the correction deed increased the number of apartments from 16 to 17;
• another apartment was created on the seventh floor;
• the original apartment remained of the same dimensions but was merely renumbered from 701 to 702;
• the newly created Flat No. 701 had been sold to a third party;
• despite this, the promoter continued issuing the possession letter in respect of Flat No. 701.

The complainants stated that they had no objection to renumbering provided the promoter executed all necessary correction and rectification documents at its own cost, including stamp duty and registration charges, so that their title would be perfected.

Promoter’s Conduct

Respondent Nos. 1 to 3 (the promoter and its partners) did not file any reply to the complaint and ex parte proceedings were conducted against them.

The landowners contested the complaint, primarily arguing that:

• they were not promoters under RERA;
• they had merely executed a power of attorney in favour of the developer;
• they had no role in sale transactions;
• they had not received any sale consideration;
• all obligations regarding possession and completion rested upon the developer.

They also questioned the complainants’ proof of payment of the balance consideration.

MahaRERA’s Findings

The Authority observed that the promoter had failed to contest the complainants’ allegations.

Regarding the payments, MahaRERA noted that documentary proof for the alleged cash payment had not been produced. Although the complainants had also not produced proof of RTGS/NEFT payments, the Authority accepted the payment of Rs. 35 lakh since it was stated to have been made through banking channels.

Landowners Held to be Promoters

MahaRERA rejected the contention of the landowners that they were outside the scope of RERA.

Referring to a Bombay High Court judgment dated 26.07.2024, the Authority observed that the definition of “promoter” under Section 2(zk) of RERA is wide enough to include persons associated with construction, including holders of powers of attorney from landowners.

The Authority further noted that:

• the landowners’ names were shown as promoters while registering the project;
• they were parties to the transaction through the power of attorney;
• execution of the power of attorney brought them within the ambit of promoter under the Act.

Delayed Possession

The Authority found that the agreement clearly fixed 30.09.2017 as the possession date.

The promoter admittedly failed to deliver possession by that date.

Although Form 4 dated 15.05.2018 had been uploaded on the MahaRERA portal and the project was shown as completed, Occupation Certificate had still not been received or uploaded.

The Authority examined Section 18 of the Real Estate (Regulation and Development) Act, 2016, which provides that where an allottee chooses not to withdraw from the project, the promoter is liable to pay interest for every month of delay until possession is handed over.

Since the complainants wished to continue with the project, MahaRERA held that they were entitled to interest for delayed possession.

Accordingly, the Authority directed payment of interest:

• from 01.10.2017;
• for every month of delay;
• until possession along with Occupation Certificate is handed over;
• on the actual amount paid by the complainants towards apartment consideration;
• at State Bank of India’s Highest Marginal Cost of Lending Rate (MCLR) plus 2%, in accordance with Rule 18 of the Maharashtra RERA Rules, 2017.

The Authority clarified that “actual amount” excludes stamp duty, registration charges and taxes paid to the Government.

It further permitted adjustment of the interest payable against any balance sale consideration payable by the complainants.

Flat Numbering Issue

On the issue of flat numbering, MahaRERA observed that:

• no document had been produced by the promoter explaining the renumbering from Flat No. 701 to Flat No. 702;
• the original Flat No. 701 had already been transferred to a third party;
• therefore, possession of Flat No. 701 could not be directed.

However, since the apartment purchased by the complainants continued to exist with identical dimensions and had merely been renumbered, the Authority accepted the complainants’ alternate relief.

It directed the respondents to:

• execute and register a correction deed changing the apartment number from 701 to 702 within 30 days;
• thereafter hand over possession of Flat No. 702 within 30 days of receipt of Occupation Certificate, subject to payment of any balance consideration under the agreement.

Final Directions

MahaRERA partly allowed the complaint and directed the respondents to:

• execute and register the correction deed changing Flat No. 701 to Flat No. 702;
• hand over possession of Flat No. 702 after receipt of Occupation Certificate;
• pay delayed possession interest from 01.10.2017 till handing over possession with Occupation Certificate at SBI Highest MCLR + 2% on the actual consideration paid;
• exclude stamp duty, registration charges and government taxes while calculating the actual amount;
• permit adjustment of interest against any balance consideration;
• pay Rs. 20,000 as litigation costs.

FULL TEXT OF THE JUDGMENT/ORDER OF MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY, MUMBAI

1. The Complainant has filed the present complaint on 03.02.2023 seeking directions against the Respondents to pay to the Complainants interest for delay of possession on amounts paid @ State Bank of India’s highest IMCLR +2% p.a. from 30.09.2017 up to date of handing over of legal possession of the Apartment to the Complainant; in the alternative to order and direct Respondents to pay to the Complainants interest for delay of possession on amounts paid @ State Bank of India’s highest MCLR +2% p.a. from 30.09.2017 up to 01.01.2020; to enter into, execute and register a Sale Deed in respect of the Apartment, now bearing No. 702, being the original Apartment No.701 and as more particularly identified as the subject Apartment at the costs and expenses of the Respondents, including the appropriate and applicable stamp duty and registration charges thereof and all other consequential documents required and necessary for rectifying the Agreement for Sale dated 08.09.2016; to order and direct Respondents to finish the interior work of the said Apartment, as per the pamphlet/prospectus as assured and promised by the Respondents.

2. The brief facts of the complaint are as follows:

3. The Complainant No.1 expired intestate on 14.06.2023 thereby leaving his wife and two major sons i.e. Complainant Nos. la to lc as his only legal heirs, survivals and representatives, accordingly the wife and two major sons are brought on record in the place and stead of deceased Complainant No. 1.

4. The Respondent No. 1 is the promoter of the project namely “The Address” registered under the MahaRERA Project Registration No. P50500012771 (hereinafter referred to as the “said project”). The Respondent Nos.2 and 3 are the partners of Respondent No.1. Respondent Nos.4 and 5 are the Vendors and/or Owners of land viz. piece and parcel of land bearing Plot No. 10, admeasuring 641.45 Sq. Mtrs. (6904.5 Sq.Ft.) being a part or portion of the entire land bearing Khasra No.26, 28 and 29 of Mouza-Bhamti, P.H. No.44, Ward No.75, bearing City Survey No.15 and 18, Sheet No.15, situated at Renghe Nagar, Near Trimurti Nagar, Nagpur (hereinafter referred to as the “said land”).

5. At the relevant time, the Complainants were informed by the Respondents that the Respondents had submitted the entire property to the provisions of the Maharashtra Apartment Ownership Act, 1970 by virtue of an in pursuance of execution of a Deed of Declaration dated 0l.04.2015 under Section 2 of the said Act duly registered in the office of the Joint Sub-Registrar, Nagpur No.4 under No.2442 in Block No.1. The perusal of the said Deed also clearly recorded proposed construction of Apartment No.701 in the said project identified therein as “THE ADDRESS CONDOMINIUM”.

6. Based on the aforesaid representations, the Complainants decided to purchase one Apartment namely Apartment No.701 having Built Up Area 98.294 sq. mtrs., on 7^th Floor (hereinafter referred to as the “said Apartment”) in the said project being constructed on the said land, total admeasuring about 6905 Sq. Ft. together with 9.115 % undivided share and interest in the said land being a part or portion of the said land for a total consideration of Rs. 44,00,000/- (Rupees Forty-Four Lakhs Only) vide registered Agreement for Sale dated 08.09.2016 (hereinafter referred to as the “said Agreement”).

7. Under clause 7 of the said Agreement, the Respondents had agreed to make the said Apartment available to the Complainants on or before 30.09.2017 and execute a registered sale deed in favour of the Complainants. However, the Respondents have not received an occupation certificate in respect of the said project

8. The Complainants paid the amount of Rs.35,00,000/- (Rupees Thirty-Five Lakhs Only) by way of RTGS and NEFT transfers. When there was a balance amount of Rs. 9,00,000/- (Rupees Nine Lakhs Only) pending to be paid, accordingly, the Respondent No.2 approached the Complainants with a request to pay the balance amount of Rs.9,00,000/- (Rupees Nine Lakhs Only) for and towards Respondent No.1 being the partnership firm with an additional amount of Rs.1,00,000/- (Rupees One Lakh Only) for additional expenses totalling to Rs.10,00,000/- (Rupees Ten Lakhs Only) in cash. Despite Complainants refusal to pay the amount in cash, the Respondent Nos.2 and 3 were hell bent to demand the amount of Rs. 10,00,000/- (Rupees Ten Lakhs) in cash and paid the said amount in cash to the Respondent No. 2 being the balance payment pending towards the said Apartment and which confirmation was duly provided via SMS by Respondent No.2 to Complainant No.1.

9. The Respondents failed to handover possession of the said Apartment by the agreed date of possession on or before 30.09.2017. The Respondents had unilaterally extended the date of handing over the possession on the website of this Authority without informing the same to the Complainants and was realized by the Complainants about the same after visiting the website of this Hon’ble Authority.

10. During the year 2017, the Complainant No.1 was detected with Vocal Cancer and resultantly the Complainant No. 1 had to take the cancer treatment in the form of Chemo and Radiation therapy at Mumbai. During this period the Complainant No.2 regularly used to visit the office of Respondent No.1 and requested the Respondents to handover the fully furnished Apartment at the earliest, however, time and again false assurances were given to the Complainant No.2. The Complainant No.1 could not be cured through the treatment which he was undergoing for one long year and in the year February 2018 the Complainant No.1 had to undergo surgery and resultantly the Complainant No.1 had to lose his voice permanently. In between, in the year 2019, the Complainant again went for correction surgery due to which the Complainant No.1’s movement was restricted and most of the time the said Complainant was bed ridden. Consequently the Complainant died on 14.06.2023.

11. During the course of time the Respondent No.1 unilaterally issued possession letter dated 01.01.2020 and an assurance letter dated 01.01.2020 with respect to said Apartment, thereby, assuring that the Respondents shall finish the interior work of the said Apartment.

12. The said project has not received an Occupation Certificate and as such, there was no question of handing over possession of the said Apartment to the Complainants, and as such, the Complainants could not have accepted the possession of the said Apartment, more so in view of the fact that the said Apartment is incomplete in terms of the representations made under the prospectus and otherwise

13. From March 2020 onwards lockdown was declared in the entire country and wherein the movements were strictly restricted in India due to Covid-19 virus and accordingly during the lockdown period the Complainants couldn’t visit the said apartment to verify the progress of the same.

14. As the Respondents were completely avoiding Complainant No.2 at Nagpur, therefore the Complainant No.1 had no choice then to visit Nagpur in the year November 2021 in his medical condition. Upon visiting Nagpur by Complainant No.1, accordingly, both the Complainants managed to visit the said Apartment and they were shocked to see that the said Apartment was incomplete and without any fixtures and fittings and further a new Apartment had been created in front of the said Apartment by the Respondents and which new apartment was numbered as 701. Accordingly, the Complainants visited the office of Respondent No.1 where the Complainants sought explanation from Respondent Nos.2 and 3 being the partners of Respondent No.1 and the Complainants were provided with the explanation that the Respondents have changed the plan and made some modifications and alterations in the sanctioned construction plan and in turn new Apartment has been created in front of the Apartment of the Complainants by submitting Deed of Correction dated 14th February 2017 before the Office of Sub-Registrar at Nagpur without informing the Complainants. It is noted that the fresh Deed of Correction was not at all submitted for approval of the Competent Authority i.e. Nagpur Municipal Corporation (NMC).

15. On perusal of the said Deed of Correction, proves the existence of an Apartment of the same dimension as agreed to be sold as stated hereto before to the Complainants, the only difference being the said Apartment being re-numbered unilaterally as Apartment No.702 instead of an Apartment No.701. The factual of existence of an Apartment of the same dimension as that of the Apartment being subject matter of the present complaint is not in dispute, save and except re-numbering of the same from Apartment No.701 to Apartment No.702 done mischievously and unilaterally by the Respondents, without consent and/or knowledge and behind the back of the Complainants.

16. Vide Deed of Correction dated 14.02.2017, the Respondents have stated that they have executed Deed of Declaration dated on 01.04.2015 in respect of property described in the schedule as appended to page no.2 of the Deed of Correction along with proposed building to be constructed on the said plot of land and further it is submitted that inadvertently in the Deed of Declaration dated 0l.04.2015 wrong information has gone on record and in this regard the Respondents have provided tabular form at page No.3 of the Deed of Correction. the Respondents have further confirmed in their Deed of Correction that they have purportedly rectified the mistakes as committed in Deed of Declaration and in turn instead of 16 apartments now there are over all 17 apartments thereby creating one more apartment on the 7^th Floor of the said building.

17. Before entering and executing the Deed of Correction dated 14.02.2017, there was no written confirmation and/or communication from the Respondents to Complainants regarding making of said changes, it was incumbent upon the Respondents to inform the Complainants about the said subsequent modifications, however, there was no single whisper about the same. The Respondents have unilaterally changed the actual sanctioned plan violating Section 7 & 7(A) of the MOFA Act and Section 14 of the Real Estate (Regulation and Development) Act (hereinafter referred to as the “said Act”) and Section 7 of the MOFA Act.

18. Before issuing the possession letter dated 0l.01.2020, the Respondents have already executed the Deed of Correction on 14.02.2017 and whereby new Apartment was created on the seventh floor of the building and the said new Apartment was numbered as 701 which was sold to one Mr. Amol Ronghe and therefore there was no rhyme or reason on the part of Respondents to issue Possession Letter dated 01.01.2020 with respect to Apartment No.701. But despite clear knowledge of the same, the Respondents have issued the Possession Letter dated 01.01.2020 with respect to Apartment No.701 and which action itself proves fraud and malice on the part of Respondents.

19. The Complainants would have no grievances against the Respondents changing the identity of the Apartment from Apartment No.701 to Apartment No.702 provided the Respondents apart from the directions as prayed for hereto is also ready and willing to execute necessary Deed of Correction and/or Rectification and/or any other Deed, Document and/or writing rectifying the Apartment number in the Agreement for Sale from Apartment No.701 to Apartment No.702 and clearing the title in favour of and in the name of the Complainants so as to perfect the title of the Complainants at the costs and expenses of the Respondents, including the appropriate and applicable stamp duty and registration charges thereof and all other consequential documents required and necessary for rectifying the said Agreement.

20. During November 2021, the Complainants again requested the Respondents to complete the interior work of the said Apartment so as to make it in a livable condition, towards which the Respondents orally confirmed that they shall complete the interior work of the said Apartment on or before 31.01.2022.

21. Based on the representations of Respondent Nos.2 and 3, the Complainant No.1 visited Nagpur on 10.05.2022 under an impression that the said Apartment must have been completed in all aspects as assured and promised by Respondents, but the expectation of the Complainants went in vain. Immediately the Complainants tried to establish contact with Respondent Nos.2 and 3, but to no avail as the said Respondents failed to answer the calls of Complainants. The Complainants somehow managed to meet Respondent No.3 as the Respondent No.2 was not at all available and accordingly the Complainants sought explanation towards noncompliance of the interior finishing work of the said Apartment. At this juncture the Respondent No.3 had no explanation at all and in turn avoided the responsibility towards completion of the interior works of the said Apartment and further gave evasive reply to finish the interior work.

22. The Respondent Nos. 1 to 3 have failed to file reply to the complaint of the Complainants.

23. The Respondent Nos. 4 and 5 (“Owners/Landlords”) have filed written statement. The brief of the written statement of the Owners are as follows:-

24. The term “Promoter” is defined under the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as the “said Act”) in Section 2(zk) as (i) a person who constructs or causes to be constructed an independent building or a building consisting of apartments, or converts an existing building or a part thereof into apartments, for the purpose of selling all or some of the apartments to other persons and includes his assignees; or (ii) a person who develops land into a project, whether or not the person also constructs structures on any of the plots, for the purpose of selling to other persons all or some of the plots in the said project, whether with or without structures thereon; or (iii) any development authority or any other public body in respect of allottees of–(a)buildings or apartments, as the case may be, constructed by such authority or body on lands owned by them or placed at their disposal by the Government; or(b)plots owned by such authority or body or placed at their disposal by the Government, for the purpose of selling all or some of the apartments or plots; or (iv) an apex State level co-operative housing finance society and a primary co-operative housing society which constructs apartments or buildings for its Members or in respect of the allottees of such apartments or buildings; or (v) any other person who acts himself as a builder, coloniser, contractor, developer, estate developer or by any other name or claims to be acting as the holder of a power of attorney from the owner of the land on which the building or apartment is constructed or plot is developed for sale.

25. The Owners were not promoters in the array of the said Act. Section 2(zk) of the said Act mentions two broad categories of promoters – (1) the person(s) who construct or develop the project or cause it to be constructed or developed and (2) the person(s) who market or sell apartments, plots or buildings in the project and for the sake of convenience, they can be called ‘developer-promoter(s)’ and ‘seller-promoter(s)’, respectively. The Owners did not cover under both categories hence, the present complaint be dismissed against the Owners. The Owners never sold the said Apartment to the Complainants and did not receive a single paisa from the Complainant for selling out the said Apartment and hence the Owners should not be held liable for the wrong done by the Respondent Nos. 1 to 3.

26. The Landowners shall not be named or treated as a promoter of the project, if as per the development agreement, all the following conditions are fulfilled (a) the landowners has no role as a developer-promoter; and (b) the landowners does not have a share in the area developed for sale in the project or has such share but not intent of marketing or selling it or any part of it before completion of the project.

27. The Owners denied that the Owners are also signatories to the said Agreement with the Complainants. The said Agreement between the Complainants and the Respondent Nos. 1 to 3 was signed by the Respondent Nos. 2 and 3 being a partner of the Respondent No. 1. The said Agreement was signed by the Respondent No. 2 being a power of attorney holder of the Respondent Nos. 4 and 5. It is specifically mentioned that the Developer who are the Respondent Nos. 1 to 3 in the present case shall develop the entire land owned by the Owners and against the total valuable consideration amount of Rs. 1,82,00,000/-. By way of their development agreement, the Owners transferred, conveyed and assigned all kinds of development construction and building rights in respect of the said property in favour of the Developers who are the Respondent Nos. 1 to 3. the Developer has agreed to undertake the entire construction of the residential complex on the said piece of land in accordance with the sanctioned plan by the NMC Nagpur. In their Development Agreement that all money that may be required for the construction of the proposed building and for the purpose of Developer firm shall also arranged by the Developer and that the Developer shall also procure intending buyer for the apartments in the said project and will be entitled to make construction of the respective apartment at their cost and on account of and on behalf of the respective intending buyers and search intending buyers for acquiring proportionate undivided variable and indivisible share in the said land and the Owners were not responsible for any transaction entered into by the Developers with the prospective buyers in respect of the apartments in the proposed building and/or be liable to pay any money liability if any arose out of the said transaction and the Developers were free to enter into any Agreement for Sale in respect of the proposed Apartments to be constructed thereon together with the proportionate undivided share in the land relating to the Apartments to the intending buyers at the price suitable to it and was free to recover the same directly from such buyers in such manner as it deemed fit and proper, the Developer was free to revise or re-revise the building plan or design and undertook to indemnify the Owners from any violation of Development Control Rules or the order of Government or any Civil or Criminal Case or Consumer Dispute that may be filed by the prospective purchaser/s against the Developer. The Owners unnecessarily dragging the Owners in the complaint and harass the Owners.

28. The first correction deed to the deed of declaration executed in the year 2015 was executed on 14.02.2017 and thereafter second correction deed of declaration was executed on 23.07.2018, in which both these declarations, Apartment No. 702 was mentioned.

29. The Owners have no knowledge at what cost the apartment was sold by the Respondent Nos. 1 to 3 to the Complainants. The Owners have no authority to execute correction deed as they executed power of attorney in favour of the Respondent Nos. 1 to 3 and in the absence of the Developers who entered into the said Agreement with the Complainant. The defination of promoter used the term jointly liable and not jointly and severally liable.

30. The term promoter is not defined to include co-promoters. Under section37 0ff the said Act, directions can be issued by the Authority to the Promoter but not to a co-promoter of the project. The co-promoters, if any, in a project are there just in name.

31. The Complainants themselves admitted that they have received possession letter on 01.01.2020 from the Respondent Nos. 1 to 3, indicated that the Complainants are in possession of the flat No. 702 and the present complaint is time barred and hence, deserves to be dismissed.

32. The signature at the end of the letter of 01.01.2020, assumed to be of the Respondent No. 3 i.e. Anil Asegaonkar is different from the signatures of the same person on all the registered documents, hence, the said letter should be proved.

33. Under the said Act, it is the Developer’s duty to handover possession to the allottee within the time and in accordance with the terms stipulated in the said Agreement. The obligation of refunding the amount or completion of the project, procuring completion or occupancy certificate is also of the Developer.

34. The Complainants have failed to prove that they paid entire consideration amount to the Respondent Nos. 1 to 3 as they failed to prove that they paid last amount of Rs. 9,00,000/-.

35. The Complainants have filed rejoinder to the written statement of the Owners, wherein, mainly the Complainants have repeated and reiterated the contents of the complaint. The brief facts of the rejoinder are as follows: –

36. The act of Respondent Nos. 4 and 5 of issuing power of attorney in favour of Respondent Nos. 1 to 3 itself casts obligation upon them and the said Respondents clearly come under the clutches of law.

37. All the Respondents are equally liable and responsible towards the claim of the Complainants and accordingly the said Respondents be dealt with in accordance to law.

38. The Owners filed written submissions on 20.07.2025 thereby repeating the contents of the written statement, hence, the same are not repeated herein for the sake of brevity.

39. The complaint was listed on 29.07.2025 when the Complainant Prasad Gajbhiye was present for the Complainants; Advocate Anuradha Deshpande was present for the Respondent Nos. 4 & 5; None was present for the Respondent Nos. 1 to 3. Ex-parte orders have been passed against Respondent Nos. 1 to 3. The Advocate for Owners submitted that they have already uploaded their reply and written arguments on the MahaRERA website. The Complainant, Prasad Gajbhiye, submitted that fifteen days’ time may be granted to upload the written arguments on the MahaRERA website. Considering the submissions of the Complainant, Prasad Gajbhiye, time till 13.08.2025 was granted to the Complainants to upload the written arguments on the MahaRERA website. Thereafter, the matter will be reserved for order.

40. The Complainants have also uploaded written submissions on 12.08.2025 repeating and reiterating the contents of complaint and rejoinder.

41. Considering the pleading of the parties, the following points arise for my determination. My findings thereon are recorded as under for the reasons stated below:

REASONS

Reasons for Point Nos. 1 and 2

42. At the very outset, it is imperative to state that the contentions of the Complainant has remained unchallenged and unshaken on the record of this Authority from the Respondent No. 1 who is the promoter and the Respondent Nos. 2 and 3 are partners of the Respondent No. 1, whereas, the Owners have contested the present complaint mainly stating that they are not concerned with the transaction entered into by the Complainants and the Respondent Nos. 1 to 3 and that in the said Agreement, the Respondent No. 2 has signed as Owner of the said land as per POA issued by the Owners and that since the Owners are not promoters of the said project, no direction can be passed against them under the said Act by this Authority. Whereas, it is the contention of the Complainant that by the very fact that the Owners have executed POA in favour of the Respondent Nos. 1 to 3, by using which, the Respondent No. 1 has entered into the said Agreement binds the Owners as well in the present complaint and under the said Act.

43. Moreover, it is submitted by the Complainants that after executing the said Agreement in favour of the Complainants, the Respondents proceeded and sold the same Apartment to third party vide Sale Deed dated 13.07.2020 and the reason for the same was given by the Respondents that due to change in the plans another Apartment of the same configuration was constructed and the same was numbered as 701 and the Complainants’ Apartment was numbered as 702, however, no document containing the said understanding issued by the Respondents has been produced before this Authority. Not only this, even the possession letter addressed by the Promoter bears the mention of Apartment No. 701 and not 702.

44. The present complaint has mainly filed by the Complainants seeking possession and interest for delayed possession on 03.02.2023. Even though no OC has been uploaded on the webpage, the said project stands completed on the MahaRERA Project page and it is seen that the Promoter of the said project has uploaded Form 4 dated 15.05.2018 on 21.01.2021. It is seent that the Complainant No. 1 alongwith Mr. Rajendra Pachbhave had purchased the said Apartment from the Respondent in the said project vide the said Agreement. As per the said Agreement, the possession of the said Apartment was to be handed over to the Complainant by the Respondent by 30.09.2017 and the Respondent has failed to comply with the same. The Complainants contend that the Complainants have paid an amount of Rs. 35,00,000/- to the Respondents vide RTGS and NEFT transfers. However, no payment proof has been submitted by the Complainants and likewise, the Complainants contend that Rs. 10,00,000/- was paid by them in cash for which, the Complainants have enclosed a msg showing the receipt of Rs. 10,00,000/- from the Respondent No. 2. However, the Owners have challenged the payments of the Complainant, hence, it was incumbent upon the Complainants to prove the payments but the Complainants have failed to prove the same. Nonetheless, since the payment of Rs. 35,00,000/- has been contended to be paid vide NEFT and RTGS, hence, this Authority has no reason to disbelieve the same.

45. So far as regards, the contention of the Owners that they are not the Promoters of the said project and hence this Authority cannot pass any directions against the Owners is concerned, it would not be out of context to draw reference to Order dated 26.07.2024 passed by the Hon’ble Bombay High Court in Second Appeal (St.) No. 21842 of 2023 wherein, it is inter alia held by the Hon’ble Bombay High Court that “…the definition of the term “Promoter” under Section 2(zk) of RERA is wide enough to include every person who is associated with construction of the building such as builder, coloniser, contractor, developer, estate developer or by any other name or even the one who claims to be acting as the holder of a power of attorney from the owner of the land. One of the principal objectives of RERA is to bring transparency in real estate sector and to protect the interests of the consumers in the real estate project. The term ‘Promoter’ has been so widely defined that it virtually includes every person associated with construction of the building.

46. While registering the project as ongoing project under Section 3 of the said Act, the Owners’ names have been included in the list of Promoters Landowners. Therefore, the Owners cannot run away from the fact that it is the promoter in respect of the said project. Not only this, the Owners are also one of the parties to the present complaint may that be signed by the Respondent No. 2 as Owners by virtue of POA. The fact that the Owners executed the POA in favour of the Promoters of the said project brings the Owners under the purview of the Promoter and is also liable to comply with the terms of the said Agreement.

47. It is the contention of the Complainant that the Respondent had agreed to handover the possession of the said Apartment on or before 30.09.2017, which can be corroborated by clause 7 of the said Agreement and it is seen that the Respondent has failed to handover the possession of the said Apartment on or before the agreed date of possession as per the said Agreement.

48. From the contents of the complaint, it is observed that the Complainant is claiming reliefs under Section 18 of the said Act. Hence it is imperative that the Section 18 of the said Act is perused.

Section 18 of the said Act deals with the return of amount and compensation. It reads as follows:

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 to sell 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.

(2) not relevant to this case

(3) not relevant to this case…”

49. From the plain reading of Section 18, it is clear that if the promoter fails to handover possession as per the terms of the agreement for sale, Allottee has a choice either to withdraw from the project or to stay in the project. Further, in case the allottee chooses to be in the project and take possession, the Allottee is entitled to claim interest for the delayed period of possession on the actual amount paid by him for every month of delay.

50. From the facts of the present, it is apparent that the date of handing over possession is mentioned as 30.09.2017 and the said Agreement is executed on 08.09.2016, hence, it is quite apparent that the Respondent has defaulted the agreed date of possession of the said Agreement, which means that the Respondent has violated the provisions of Section 18 of the said Act and as such, by virtue of proviso of Section 18(1) since the Complainants want to stay in the project, the Complainant is entitled to interest for every month of delay, till the handing over of the possession of the said Apartment. It is seen that till the date of this order, Occupation Certificate is not received and/or uploaded on the said project’s webpage, however, Form 4 has been uploaded and the project stands completed. Consequently, in my opinion, the Respondent is required to be directed to handover possession of the said Apartment to the Complainant and also to make payment of interest to the Complainant on account of delay in handing over possession of the said Apartment. The obligation imposed on the Respondents to pay interest till such time as the said Apartment is handed over to the Complainants is not unreasonable. Having said that there exists no document issued by the Respondent Nos. 1 to 3 explaining the change of flat Nos. from 701 to 702, the fact that at this juncture, admittedly, the said Apartment i.e. flat No. 701 stands transferred in the name of the third person and hence, this Authority cannot direct the Respondent Promoter to handover possession of the said Apartment. As a result, since the Respondent Nos. 1 to 3 have failed to contest the present complaint of the Complainants, this Authority has no reason to grant alternate prayers sought by the Complainants. Accordingly, this Authority directs the Respondents to handover possession of the flat No. 702 in the name of the Complainants on the same terms and conditions agreed in the said Agreement and to execute and register necessary correction documents with regards to the change of number of flat from 701 to 702. Since the Respondents have failed to handover possession of the said Apartment on the agreed date of possession as per the said Agreement, the Complainants have become entitled to the cost of the present complaint. Accordingly, I answer the point No. 1 partly in affirmative and I proceed to pass the following order:

O R D E R

1. The complaint is allowed as follows:-

a. The Respondents are directed to execute and register correction deed with respect to change of number of flat from 701 to 702 in favour of the Complainants within 30 days from the date of this order.

b. On compliance of the aforesaid, the Respondents are directed to handover possession of the flat No. 702 to the Complainants, within 30 days from the receipt of OC, on receipt of balance consideration amount, if any, as per the terms of the said Agreement from the Complainants.

c. The Respondents are also directed to pay interest for delayed possession to the Complainants from 01.10.2017 for every month of delay till the date possession of the said flat alongwith OC is handed over to the Complainants on actual amount paid by the Complainants to the Respondent towards the consideration of the said Apartment at the Highest Marginal Cost of Lending Rate (MCLR) of State Bank of India plus 2% as per the provisions of Rule 18 of the Maharashtra Real Estate (Regulation and Development)(Registration of Real Estate Projects, Registration of Real Estate Agents, Rates of Interest and Disclosures on Website) Rules, 2017.

d. Needless to state here that the actual amount as provided under section 18 of the said Act means the amount paid by the Complainants to the Respondent towards the consideration of the said Apartment only, excluding the stamp duty, registration charges and taxes etc. paid to the government.

e. The parties may set off payment of interest payable by the Respondents to the Complainants and the balance consideration amount payable by the Complainants to the Respondents inter se.

f. The Respondents are also directed to pay cost of this complaint to the tune of Rs.20,000/- (Rupees Twenty Thousand Only) to the Complainants.