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By Fiona Mehta

 

In a recent matter, an appeal for interest payment filed by a corporate buyer alleging a delay in the delivery of an apartment in Mumbai’s Worli neighborhood valued at more than Rs 3.5 crore was dismissed by the Maharashtra Real Estate Appellate Tribunal (MREAT), which reasoned that the buyer consciously waived any claims against the developer at the time of taking possession.

The tribunal ruled that the waiver could not be taken into consideration because it was made in writing. According to MREAT’s ruling, the buyer resolved the conflict by accepting the amount designated for rentals, therefore the demand for interest and compensation failed to stand up. The buyer was also directed by the tribunal to pay the developer Rs 20,000 in charges.

 

Facts of the case:

The buyer paid a total of Rs 3,77,85,528 to reserve flat No. 6001 in the B-Wing of the Lodha Park development in Worli, Mumbai. The buyer claims that the purchase agreement was signed on April 5, 2013, and that ownership of the apartment was to be given no later than December 31, 2017. The ruling further states that the buyer paid 97% of the total prior to 2017.

On June 13, 2019, the developer received a part occupancy certificate (OC), and on December 27, 2019, he sent out a possession demand letter (PDL) asking the purchasers to pay the remaining balance in order to take possession of the apartment.

However, the purchaser filed a complaint with the MahaRERA in February 2020 under several sections, including Section 18 of the Real Estate (Regulation and Development Act, 2016) (RERA), alleging that the developer had failed to transfer possession as agreed. The purchaser also requested a refund of the money plus taxes, stamp duty, and interest from April 5, 2013, to January 31, 2020.

The developer claimed that the buyer signed a key handover letter (KHO) at the time of taking possession, which stated, “The unit has been handed in compliance with the Agreement, and a rental offset in the amount of Rs 15,42,667 has been offered and accepted by you.” As a result, you waive any claims against the company regarding or related to the transfer of possession of your Unit and declare that you have no unresolved complaints against the company. This letter was signed by the buyer.

 

Order: “To determine the controversy on hand with regard to entitlement of Allottee to interest and compensation on account of delay in possession, it is necessary to examine whether the manner in which possession is taken by Allottee amounts to a conscious waiver of its rights under Section 18 of RERA,” the MREAT stated in its judgement dated July 15, 2022, which was uploaded on the MahaRERA website on July 22.

The order stated that signing the letter for the amount specified signifies an agreement between the parties that is reflected in the waiver of claims or grievances, which can only be described as a conscious and well-considered act and “not an unconscious or unintentional act as Allottee (buyer) is trying to make it out to be. Any claims by the buyer particularly related to the transfer of ownership of the unit have been waived. In light of the aforementioned facts and circumstances, it is safe to say that the Allottee has knowingly waived his or her claim against the Promoter for possession delay.

Additionally, the Allottee (buyer) had settled the matter regarding delay by accepting the amount for rentals, therefore, nothing survived actually in the complaint for considering interest and compensation under Section 18 of RERA. Accordingly, the complaint was actually rendered infructuous. In view thereof, there is no infirmity in the view taken by the Authority and the complaint has been rightly dismissed as being infructuous. Appellant/Allottee (buyer) to pay costs of Rs. 20,000 to Respondent / Promoter (developer).