MREAT (2025.02.24) in Pratibha Fabrics Limited Vs. Macrotech Developers Limited,. [APPEAL NO. AT006000000052817 Of 2021] held that;
It is the settled positions of law that the provisions of the Section 18 of the Act continue to be applicable even if the captioned complaints have been filed after taking possession of the respective subject flats.
Therefore, it is more than evident that the possession offer letter dated 14th January 2018 and the e-mail dated 06th June 20t7 had been prepared as one sided, without full disclosure of all relevant specific details and therefore, the possession letter is unreasonable, one sided and imbalanced.
A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 ® of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.
Excerpts of the Order;
These appeals have been preferred under The Maharashtra Real Estate (Regulation and Development) Act, 2016 (in shott, "the Act'), wherein, appellants are seeking inter alia for setting aside the two separate orders dated 6th August 2019 passed by Maharashtra Real Estate Regulatory Authority (in short, "MahaRERA') in two separate individual complaints filed before MahaREM, vide Complaints nos. CC005000000055789, and CC005000000055804 respectively.
2. Captioned appeals arise out of common background facts and are raising identical questions of !aw. Accordingly, by consent, both the appeals are heard together and are being disposed of by this common judgement as herein under.
3. Appellants are flat purchasers, allottees and complainants before MahaRERA. Respondent is promoter, who is developing duly registered project under the Act, namely "Lodha Florenza" Located at Goregaon (East). For convenience, appellants and respondent will be addressed hereinafter in their original status before MahaRERA as complainants and
promoter respectively.
4. Background giving rise to filing of the current appeals:
Complainants case: -
a. Complainants booked their respective flats in promoter's said project and executed two separate individual registered agreements for sale dated 06th February 20L2 and 02nd February 20t2 (and were registered on 08th February 20tZ) for two separate flat nos. 2302 and 2301 respectively. Appeals/complaints wise booking details, inter alia flat numbers including dates of agreement for sale, reliefs sought in respective complaints and in appeal are set out in the table here under.
b. In view of the delay in delivery of the possession of the respective subject flats beyond the agreed timeline as stipulated in the agreements, Appellants demanded payment of interest for the delay under Section I,B of the Act, by sending letters dated 25th April 2018. On account of non-receipt of the said interest for delay and also due to non-receipt of even the reply to the letter sent by the appellants, captioned complaints came to be filed separately before MahaRERA by appellants seeking various reliefs including for directions to the promoter for the payment of interest on account of the delay in delivery of the possession of the respective subject flats.
c. Promoter appeared before MahaRERA and resisted complaints by submitting that, complainants have already taken possession of the respective subject flats on 14th March 2018 after securing the part occupation certificate dated 13th November 2017 and complainants have also accepted the compensation amounts offered by the promoter after signing the possession letters, whereby complainants have, inter alia declared that they have no complaint nor have any grievance against the respondent. Accordingly, promoter urged to dismiss these complaints.
d. Upon hearing the parties, MahaRERA disposed of the captioned two individual complaints and issued two separate impugned orders dated 06th August 2019 after recording its concluding findings as follows: -
..,..."4. ......provision of Section 18 of the RERA Act would apply if the allottee has not taken possession of the flat. In the present case, since the complainant has already taken possession of this flat in the month of March 2018 and filed the complaint afterward. It cannot seek any relief by accepting the compensation amount offered by the respondent promoter. Hence, the complainant cannot seek any relief under the provisions of the section 18 of the Act too.
5. In.the light of the above MahaRERA does not find any merits in the complaint Hence the complaint stands dismissed for want of merits."
e. Aggrieved by these two separate orders, complainants have preferred instant individual appeals, filed separately, seeking various reliefs, inter alia to quash and set aside the impugned orders as well as for costs and such other reliefs as the Tribunal may deem fit and proper in the facts and circumstances of the case.
5. Heard parties in extenso.
6. Learned counsel for complainants submits that; -
a. Clause 12.1 read with Annexure 2 of the Agreements for Sale, stipulates for delivery of fit-out possession of respective flats on or before 30th November 2015 and to obtain occupation certificate of the said building within 6 months from this fit-out possession date together with grace period of nine (9) months.
b. However, promoter has received the part-occupation certificate of the subject building only on 13th November 2017 and, promoter has failed to handover possession of the respective flats before the agreed timeline. Thereafter, promoter sent emails dated 06th June 2017, forwarding herewith its email dated 02nd March 2017 and intimated complainants inter alia that, "...... We understand the inconvenience of minor delay this causes you; pushing out the occupation of your new unit by a few additional months, Recognizing this, we shall offer you an offset of Rs.1,21,000/- per month starting from the end of the grace period mentioned in your agreement and running until we intimate you about possession of your unit for fit-outs. The same shall be deducted from the balance amounts payable to us at possession.
c. Thereafter, the promoter has sent possession demand letters 15th January 2018 intimating therewith, the details of the statement of final dues after providing offset of Rs. 24,87,293/- and Rs. 24,83,047/- respectively for flat nos. 2302 and 2301 as a part of the compensations and requested complainants to make payments of final balance amounts on or before 29th January 2018 to enable and initiate the process to handover the possessions of the respective flats.
d. Pursuant thereto, complainants have paid the entire balance amount as demanded by promoter for their respective flats as full and final Payments and have taken possession of the respective flats on 14th March 2018 by duly signing the handover possession letter dated 14th March 2018.
e. Immediately after taking possession of the subject flats, complainants have sent letter dated 25th April 2018 to the promoter demanding {88,64,889 and 83,13,541 by annexing therewith the calculation of the amounts of interest at prescribed rate for the delay in delivery of possession of their respective flats from the agreed timeline under Section 18 of the Act.
f. However, the promoter has neither made any payments nor even replied to the complainants of their letter dated 25th April 2018. Aggrieved appellants have filed the captioned complaints before MahaRERA praying inter alia for the direction to promoter for the payment of the said compensations under Section 18 of the Act besides other compensation and costs.
g. Promoter has clearly failed to comply with the contractual obligations to deliver the possession of the subject flats as per the agreed timeline stipulated in the agreements and therefore, promoter is liable to pay the interest for the delay under Section 18 of the Act. But promoter has offered discount of only Rs. 1,25,000 per month from the date of expiry of grace period.
h. Moreover, MahaRERA has refused all the entitled reliefs to complainants under the provisions of the Act, vide impugned order dated 06th August 2019 on the.grounds that provisions of the Act are not applicable, since the complaint is filed after taking possession of the subject flats.
i. However, the impugned orders are contrary to the provisions of the Act and are also contradictory to the orders passed earlier by MahaRERA itself as well as several earlier judgements passed by this tribunal on this point. Therefore, the impugned orders are contrary to the settled positions of law, which are inconsistent inter alia with the various judicial pronouncements and relied on the following judgments of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi and Ors, As such,-the provisions of Section 18 of the Act remain legally applicable even after taking possession of the subject flats based on the judgments of the Hon'ble Bombay High Court dated 22nd March 2024 in the case of Park Express lV Thr. Its Partner Mr. Shrauan D. Agarwal us. Sagar H Saboo and Ors.
j. promoter cannot bind allottees by signing one sided possession letters dated 14th March 2018, which were forwarded to complainants and were routinely pre-drafted in standard format, wherein, appellants had no scope to alter the same nor can be amended. Accordingly, appellants were compelled to sign the said possession letter despite being not agreeable to all the conditions set out therein.
k. Moreover, appellants have never demanded the rental compensations of Suo Moto ofFsets, which were offered by the promoter despite knowing fully that there were delay in delivery of flats. Promoter never mentioned that by accepting these off-sets, appellants will waive their rights for claiming their delayed interest under Section 18 of the Act, Thus, appellants are entitled for the interest for the delay in possessions. Appellants further submit that the facts of the matter in the case of M/s. Leela Buildcon & Infrastructure us. Macrotech Developers & Anr, vide judgement dated 15tn July 2022 passed by this tribunal are very different than the instant appeals and therefore, it is abundantly clear that this judgment will not be applicable in the instant matters and the appellants continue to be entitled for the interest for delayed possession for not having waived their rights accrued under Section 18 of the Act.
l. Accordingly, learned counsel for the Appellants urged to allow the appeals by relying on the compilation of judgments of the Hon'ble Supreme Court in the case of;
(a) Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan in Civil Appeal No,12238 of 201&
(b) Ireo Grace Realtech Art. Ltd. Vs. Abhishek Khanna & Ors. in Civil Appeal No.5785 of 2019,
(c). Kalpraj Dharamshi & Anr Vs. Kotak Investment Advisor Ltd. In civil Appeal No.2943-2944 of 2020 and
(d) Park Express JV Thr its partner Mr. Shrauan D. Vs. Sagar H. Saboo and Ors, (supra).
7. Learned counsel for promoter submits that; -
a. Two separate impugned orders dated 06th August 2019 are well reasoned orders after giving due opportunities of being heard to all the parties concerned, it has been rightly held that complainants had accepted the possession of the respective flats without any protest by
signing the possession letter and declaring that there are no outstanding grievances against the promoter. Thus, impugned orders correctly state that complainants have waived off their rights and claims against the promoter as well as captioned complaints have been rightly dismissed.
b. Promoter, by issuing the possession demand letter after the receipt of the part-OC on 13th November 20t7, has offered compensation/ rental off-set of t 1,25,000l- ?er month until the fits-out possessions and provided credits of \24,87,293 and {24,87,293 respectively as rental offset of 16.5 months for payments of the final amounts.
c. Accordingly, captioned complainants are without any cause of action and are not maintainable. As such, Clause 12.1 of the Agreements for Sale provides for grace period and further reasonable extension on account of the factors as set out in the agreements. Promoter has offered the said compensations in lieu of the said delay. After accepting the possession of the flats and accepting the agreed rental offsets and credits, having elected and obtained benefits, now complainants cannot turn around and say that the said transaction is void for the purpose of securing another benefit. Accordingly, in view of the judgment of the Hon'ble Supreme Court in the case of Cauvery Coffee Traders, Mangalore us. Hornor Resources (ntern.) Company Ltd, in Arbitration Petition Nos.7 and I of 2009 dated 13.09.2011, complainants cannot approbate and reprobate as well as cannot be blow hot and cold.
d. Having accepted and availed the rental off-set compensation of Rs. 1,25,000 per month offered by the promoter, complainants are bound by the doctrine of estoppel, more particularly in view of the judgments of the Hon'ble Supreme Court in the case of (i) National Insurance co. Ltd, vs, Mastan and Ors. (Ovil Appeal Nos. 738 and 7383 dated 09.12.2005 and (ii) Cauvery Coffee Traders Mangalore vs. Hornor Resources (Intern. ) Company Ltd. (supra).
e. Complainants have expressly waived their rights and claims by signing the possession handover letter based on the possession demand letters dated 15th January 2018 and have taken possession of the respective flats after duly signing the possession letters dated 14th March 2018.
f. Claims of the complainants cannot be permitted in view of the judgment dated 15th July 2022 of this Tribunal in the case of M/s. Leela Buildcon & Infrastructure Vs. Macrotech Developers & Anr. in Appeal No. AT00600000005298 1 .
g. In the order dated 12th January 2022, passed in Jignya Mittal vs. Macrotech Developers Limited, National Consumer Disputes Redressal Commission has recognized the grace period of two years from the date of fit-out possession and in respect of handover of the possession letter.
h. Appellants cannot be permitted to raise additional grounds that the possessions were offered on the basis of the part-occupation certificate in the appellate stage because complainants have never raised this issue in the complaint proceedings.
i. Accordingly, the contentions of the complainants are afterthoughts in a failed attempt to circumvent their declarations in the possession letters and are attempting to misuse the provisions of the Act for additional profits after having accepted compensation. Therefore, these appeals deserve to be dismissed by relying on the judgment of the Hon'ble Bombay Court in the case of Neelkamal Realtors Suburban Pvt. Ltd. It needs to be emphasized that RERA law is not to be considered as anti promoter. It is a law for regulation and development of the real estate sector. Under the scheme of the RERA, the promoter's interests are also safeguarded and there is reason for the same. Unless a professional promoter, making genuine efforts is not protected, then, very purpose of development of real estate sector would be defeated and urged that these appeals be dismissed,
# 8. From the rival pleadings, submissions and upon perusal of record, the following points arise for our determination in the appeals, and we have recorded our findings against each of them for the reasons to fo!!ow:-
POINTS FINDINGS
1 Whether rights under Section 18 of the Act are permissible, even if the complaint is filed after taking possession of the subject flats? In the affirmative.
2. Whether appellants are entitled for the interest for the delay in delivery of possessions as prayed for? As per the Order.
3. Whether impugned order is sustainable in law? In the negative.
4. Whether impugned order calls for interference in these appeals? In the affirmative.
REASONS
Point no, 1: Appellants' entitlement under Section 18 :
# 9. It'is not in dispute that Complainants have booked flat nos. 2302 and 2301 respectively in the duly registered said project of Promoter. Therefore, complainants are allottees as per Section 2 (d) of the Act and the provisions of this Act are squarely applicable. Complainants have opted not to withdraw from the said project and have prayed for interest for the delay in delivery of possession under the provisions of the Act as elaborated above. It is also not in dispute that respondent is the promoter. Parties have also executed agreements for sale for the respective subject flats, wherein clause 12.1 read with annexure 2 of the agreements stipulates for delivery of the fit-out possessions of the respective subject flats on or before 15s November 2015 and to obtain occupation certificate within six months from the fit-out possessions date together with grace period of nine months. Admittedly, the subject building got part occupation certificate on 13tn November 2017 and promoter has offered possessions of the subject flats on 14th January 2018 by offering offsets of Rs. 1,25,000/- per month until fit-outs for the said delay for the said subject flats.
# 10. In view of the above, it is crystal clear that legal possessions of the subject flats were not delivered on or before the agreed timeline as stipulated in the agreement for sale. Hence, the provisions of Section 18 of the Act are attracted. It is apposite to reproduce Section 18 of the Act 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 specified therein; or
(b) due to discontinuation 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 Allottees wishes to withdraw from the prolect, 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.
# 11. However, MahaRERA, vide, two separate impugned orders dated 06th August z1tg, has dismissed the two individual complaints on the grounds that complaints were filed after taking possession of the flats and have already accepted compensation amounts offered by the promoter and Section 18 of the Act would apply, if the allottees have not taken possession of the flats.
# 12. However, applicants have challenged the said impugned orders by contending that, the impugned orders are contrary to the provisions of the Act and are also contradictory to the several orders passed earlier by MahaRERA itself in several cases including in the Complainant nos. CC006000000056513, CC006000000057656, CC006000000078573, CC006000000079515 and CC006000000089576 by MahaRERA itself. The captioned impugned orders are also contradictory to the earlier several judgments passed by this Tribunal in many cases including in Appeal nos. 4T006000000010425 4T006000000010582 4T006000000010s88. Learned counsel for appellants further submits that impugned orders in the instant complaints are also contrary to the settled positions of law, being inconsistent with the various judicial pronouncements of the Hon'ble Supreme court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi and Ors, (supra).
13. Even the Hon'ble Bombay High Court in para 5 of its judgment dated 22nd March 2024 (relevant abstract is being reproduced below) in the case of Park Express JV Thr. Its Partner Mr. Shrauan D. Agarwal us. Sagar H Saboo and Ors.(supra) has held that it is in the interest of the allottees to take possession of the subject flat before filing of the complaint under Section 18 of the Act.
"......5. The last submission of Mr. Sankpal about the allottee accepting possession of the Flat and filing of complaint before the Regulatory Authority is concerned I do not see why the allottee should be prevented from doing so. If the allottee was to file complaint before the Regulatory Authority and keep on litigating with the Appellant, the same would have put the allottee to further losses as the interest liability of the Promoter would have been frozen on the date of procurement of Occupancy Certificate, whereas the monies paid by the allottee to promoter would have remained blocked. It was therefore in the interest of the allottee to first take possession of the flat before filing of the complaint under Section 18 before the Regulatory Authority......"
# 14. In view of above, it is the settled positions of law that the provisions of the Section 18 of the Act continue to be applicable even if the captioned complaints have been filed after taking possession of the respective subject flats. Thus, the impugned orders passed by MahaRERA suffer from legal infirmities as well as are liable to be set aside and we answer point 1 in the affirmative accordingly.
Point nos. 2, 3 and 4.
# 15. These points are interrelated, therefore, we have considered these
16. It is not in dispute that promoter has intimated vide, its e-mail dated 06th June 2017 about the inconvenience of minor delay in delivery of the possession by few additional months and offered offset of Rs. 1,25,000/- per month to each of the complainants from the end of the grace period mentioned in the respective agreements and running until it intimate about possessions of the subject unit for fit outs. Promoter further requested complainants vide, its letter dated 15th January 2018 to make requisite payments as per the statements attached therewith in annexure A, to pay the final dues, on or before 29th January 2018 to initiate the process of handover of residences/ subject units. Accordingly, Rs. 24,87,293/- and Rs. 24,83,047/- were provided as offset and other credits to complainants in the attached statements of annexure A, in relation to their subject flat nos. 2302 and 2301 respectively. Complainants have made payments of the balance outstanding amounts after availing these offsets / credits and have taken possessions of the subject flats on 14th March 2018 after signing the "handover of possession" letter dated 14th March 2018.
# 17. Learned counsel for the promoter, contended that after having taken over the possessions of the subject flats without any protest, and having availed of the compensations (offsets) offered by the promoter for the said delay in delivery of possessions from 01st September 2016 to 14th January 2018 (16.5 months), captioned complaints are without any cause of.action and are legally not maintainable. He further contended that complainant have, accordingly, expressly waived their rights and claims by signing the possession handover letter without protest/ objections. In addition, complainants having elected and obtained the benefits, complainants are bound by the Doctrine of Estoppel in view of the settled possession of law based on judgments of the Hon'ble Supreme Court in the case of National Insurance Company Ltd., Vs. Mastan & others in Civil Appeal No.7381 of 2005 dated 09.12.2005, Cauvery Coffee Traders Vs. Hornor Resources (supra) and also in view of the judgment dated 15th July 2022 in Appeal No. AT006000000052981 of this Tribunal in the case of M/s. Leela Buildcon Infrastructure Vs. Macrotech Developers (supra).
# 18. However, learned counsel for the appellants opposed the contentions of promoter on the ground that promoter has never mentioned in their offer letters that by accepting these offsets, appellants will waive their rights to. claims and interests for delay accrued under Section 18 of the Act. Complainants further contended that in view of the very different facts of the instant appeals, the judgment of this Tribunal in the case of M/s. Leela Buildcon and Infrastructure (supra) is not applicable, Appellants further submit that promoter cannot bind allottees by signing one sided routinely pre-drafted possession letter dated 14th March 2018, which have not given any scope to complainants to alter /amend the same. Appellants were compelled to sign the said possession letters despite being not agreeable to all the conditions set out therein and have demanded from promoter for the payments of the interest for the delay in possession by sending letters immediately on 25th April 2018 itself, soon after taking possessions. However, the promoter has neither paid the said amounts nor even sent any reply as yet.
# 19. Perusal of the e-mail dated 06th June 2017 of the promoter clearly shows that the offsets offered to complainants of Rs. 1,25,000/- per month, were from the end of the grace period until the intimation for the possession of the units for fit outs. However, it is pertinent to note that fit out possession is not legal possession. Even the statement of final Dues intimated by the promoter, vide possession demand tetter dated 15th January 2018 also reflects the "excess and other credit of only for Rs. 24,87,293/- and Rs. 24,83,047/- respective basis nor any rational criteria, nor any supporting calculations for these amounts and do not clarify that by accepting these amounts, appellants will not be entitled to the balance interests of delay for the entire period. As such, these amounts of Rs. 24,87,293/- and Rs. 24,83,047/- written in the statements of the final dues under the titled as " Excess and Other Credit', and in the footnote no. 4, certain descriptions shows that it also contains offsets with respect to MVAT also. Therefore, it appears that these amounts were given as lump sum/ad hoc credits and no breakup of the underlying calculations, showing segregated amount specifically in respect of delay in delivery of possessions and have not been expressly communicated to complaints.
# 20. In addition, the promoter in its written submissions filed on 17th January 2024 has explained that, the compensation of Rs. 1,25,000/- per month have been offered in lieu of the exercise of the grace period clause in the agreement and offsets are for 16.5 months of the grace period starting from 01st September 2016 to 14th January 2018, for offering final possession. However, the possession of the subject flats was actually handed over only on 14th March 2018. It is pertinent to note that promoter itself has offered to make payments of the outstanding amounts after availing offsets on or before 29th january 2018 to enable and initiate process of handing over of possessions. However, these details of the offsets purportedly provided for the period starting from 1st September 2016 to 14th January 2018, were not seen written in the earlier communications of the promoter to the complainants in its email dated 6th June 2017, not even in the statements of final dues is annexure A, communicated by its letters dated 15 January 2018. It is also not seen written even in the final possession handover letter dated 14h March 2018. Whereas appellants are otherwise permitted to take possession of the subject flat within two months under the provisions of section 19(10) of the Act. Thus, appellants are entitled to the interest for the delay in delivery of the possessions of the subject flat from 01s September 2016 to 29 th January 2018 under Section 18 of the Act.
# 21. However, diligent perusal of the promoter's e-mails shows that promoter has offered offsets of Rs. t,25,0001- per month is only for the delayed period up to the date of fit outs. Whereas fit outs are not legal possessions. Moreover, the promoter's email and even the subsequent lefter containing the statement of final dues in the promoter's letter dated 15th January 2018, do not provide any detail about the total time period of the offsets amount offered therein. As such, promoter has mentioned only in their written submissions filed in the tribunal on 17th March 2024 about this delay period of starting from 1st September 2016 to 14th January 2018, i.e. of 16.5 months of offsets. In addition, it is pertinent to note that promoter had offered offsets on their own to all the allottees, and the possession handover letter dated 14ft march 2018 is clearly seen as pre-drafted, routinely prepared by none other than by the promoter itself in a common format prescribed for all the prospective allottees to get it mechanically signed before accepting possessions of their flats.
# 22. Even the clause no. (iii) of the possession handover letter further shows that
" You have no complaint or grievance or claims of any nature, whatsoever against the company in respect of the Unit or under the Agreement to Sell or otherwise and the right to raise such grievances/claims shall be deemed to have been waived;”
Even, this crucial part in the said letter is pre-drafted by the promoter itself and has also seen written as " We request you to sign this letter confirming your acceptance of the terms and conditions mentioned above."
# 23. Complainants and promoter both have placed reliance on the judgment of this Tribunal in the case of M/s. Leela Buildcon and Infrastructure (supra), in support of their contentions. Diligent perusal of para 17 of the judgment in respect of the M/s. Leela Buildcon, clearly shows that…
" 17. on considering the clause 5 of the KHO letter in its entirety, it is seen that the letter signed by the allottee is not a pre drafted and standard letter...." .
Whereas the facts of the case in the present appeals reflect the complete absence of conscious indulgence on the part of the complainants for the purported waiver of claims in relation to the delay in delivery of possessions. As such, these possession letters are seen signed as an unconscious and unintentional act on the part of the complainants on pre-drafted, routinely drafted standard, common possession letters prepared by none other than the promoter itself for getting the signatures of all the prospective allottees, while taking possession of the subject flats. In addition, as observed here in above, even the promoter has not disclosed the full details with the underlying specifics with regard to the delay period, interest rate, the underlying calculations of the total amounts of the offsets credits for the delay in possessions etc., for which the purported compensations were offered by the promoter. It is also more than clear that possession offer letters dated 14th January 2018 was prepared and given to appellants without disclosing the full details of the calculations of the total interest amount including without disclosing the interest rates at which the total offset amount was calculated and whether, it was at prescribed rate or not. Therefore, we are of the view that promoter has failed to disclose all the supporting underlying specifics and for other said compensations and credits offered, which have prevented complainants from taking informed decisions with conscious applications of mind. In fact, the statement of final dues contains only a lump sum credits under the title of "excess and other credit', without disclosing its underlying calculations and specifics. Therefore, we are of the view that the facts of the case in the present matters are totally different than the facts of the case of the matter of M/s. Leela Buildcon and Infrastructure (supra).
# 24. Since, the possession letters are seen prepared in advance as pre finalized and pre-typed for all the prospective allottees, complainants had no requisite flexibility / freedom but to sign the said possession letter without any.option to put their any further comments. Therefore, it is more than evident that the possession offer letter dated 14th January 2018 and the e-mail dated 06th June 20t7 had been prepared as one sided, without full disclosure of all relevant specific details and therefore, the possession letter is unreasonable, one sided and imbalanced.
# 25. Hence, the possession letters dated 14th January 2018 are unfair, unreasonable and are not binding in view of the decisions of The Hon'ble Supreme Court in the case of Pioneer urban Land Infrastructure Ltd. V. Govindan Raghavan K2019) 5 SCC 725J, wherein it has been held inter alia as fo!lows:
" 6.2. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 ® of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder."
# 26. The Hon'ble Supreme Court, has held in the case of Pioneer Urban Land and Infrastructure Vs. Govindan Raghavan (supra), that Court will not enforce an unreasonable, unfair contract or an unreasonable or an unfair clause in a contract, where contracting parties are not equal in bargaining power and where, a man has no choice or rather a meaningful choice but to give his assent to a contract or to sign on the dotted line in a prescribed or standard forms as a part of the contract.
# 27. Furthermore, The Real Estate (Regulation and Development) Act, 2016 was enacted with the aim and objective of inter alia regulation and promotion of the real estate sector and in an efficient, fair and transparent manner, for protection of the interests of the real estate consumers.
# 28. In view of the above, it is established as above that the possession letter dated 14th January 2018, is not binding on the complainants, because this clause is one sided, unreasonable and unfair. Accordingly, we find that these contentions of promoter are legally not permissible.
# 29. Whereas perusal of the provision of Section 18 specifically, shows that it in the context of assessing delay in handing over possession and if promoter fails to complete the project or unable to deliver possession of apartment, as per the agreed timelines and if allottees intend to not to withdraw from the project, then, promoter shall pay interest at prescribed rate on the total paid amounts for the period of delay at such rates as may be prescribed in this behalf as provided under Section 18 of the Act. Considering that, the promoter itself has already admitted delay in delivery of the possession of the subject flats by providing offsets for the period starting from 01st September 2016 to 14th January 2018 as mentioned in its written submissions (p. 338) and the promoter itself has requested complainants by its letter dated 14th January 2018 to make requisite payments on or before 29th January 2018 to initiate the process of handover for the subject flats, promoter is Iiable to pay the interest at prescribed rate on the paid amounts for the period starting from lst September 2016 to 29th January 2018 after deducting the offset amounts already offered/accepted and deducted for making payments of the balance outstanding amounts for taking possession of the respective subject flats. Therefore, impugned orders suffer from infirmities and warrant interference in these appeals and are liable to be set aside.
Accordingly, we answer points 2, 3 and 4 as above and proceed to pass order as follows:
ORDER
a, Appeals are Partly allowed.
b. Impugned orders dated 6th August 2019 passed in complaints nos. CC006000000055789 and CC006000000055804 are set aside.
c. Promoter is directed to pay interest to complainants at the rate of Marginal Cost of Lending Rate (MCLR) of SBI plus 2 % prescribed 'under the provision of Section 18 of The Maharashtra Real Estate (Regulation and Development) Act, 2O16 and the Rules made
thereunder for the period starting from lst September 2016 to 29th January 2018 after deducting the offset amounts of Rs. 24,87,293/- and Rs. 24,83,047/- on the amounts paid by complainants for the flats no. 2302 and 2301 respectively in respect of the complaints no. CC006000000055789 and CC006000000055804.
d. No order as to costs.
e. In view of disposal of the appeals as above, pending miscellaneous applications will not survive, hence, stand disposed of.
f. In view of the provisions of Section 44(4) of the Act of 20L6, a copy
of this order shall be sent to the parties and to MahaRERA.
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