Case Note & Summary
The case involves a Second Appeal filed by CCI Projects Private Limited (the promoter) against an order of the Maharashtra Real Estate Appellate Tribunal dated 10th March 2021. The Appellate Tribunal had quashed the order of MahaRERA dated 31st January 2019 in Complaint No. CC006000000056115, which had directed the promoter to pay interest for delayed possession to the allottees (Respondents 1 and 2). The promoter challenged this decision before the Bombay High Court. The facts are that the allottees booked a flat in a project developed by the promoter. The possession was delayed, and the allottees accepted possession without any protest. Subsequently, they filed a complaint before MahaRERA seeking interest for the period of delay. MahaRERA allowed the complaint and directed the promoter to pay interest. The promoter appealed to the Appellate Tribunal, which set aside MahaRERA's order, holding that the allottees had waived their right to interest by accepting possession without protest. The allottees then appealed to the High Court. The High Court framed substantial questions of law regarding the applicability of Section 55 of the Indian Contract Act, 1872, and whether acceptance of delayed possession without protest disentitles the allottees from claiming interest under Section 18 of the Real Estate (Regulation and Development) Act, 2016 (RERA). The Court analyzed the provisions of RERA, particularly Section 18, which provides a statutory right to interest for delayed possession. It held that this right is a statutory right and cannot be waived by mere acceptance of possession without a clear agreement to the contrary. The Court distinguished the principle of waiver under Section 55 of the Indian Contract Act, stating that it applies to contractual rights, not statutory rights. The Court also held that the complaint was within limitation as the cause of action continues. Consequently, the High Court allowed the appeal, set aside the order of the Appellate Tribunal, and restored the order of MahaRERA directing the promoter to pay interest for delayed possession.
Headnote
A) Real Estate Law - Interest for Delayed Possession - Section 18 of RERA, 2016 - Waiver - The issue was whether allottees who accepted possession without protest are barred from claiming interest under Section 18 of RERA. The Court held that Section 18 of RERA is a statutory right and cannot be waived by mere acceptance of possession without a clear agreement to the contrary. The principle of waiver under Section 55 of the Indian Contract Act, 1872 does not apply to statutory rights under RERA. (Paras 1-10) B) Contract Law - Waiver - Section 55 of Indian Contract Act, 1872 - Acceptance of Delayed Performance - The Court examined whether acceptance of possession without protest amounts to waiver of the right to claim interest. It held that for waiver to be effective, there must be a conscious relinquishment of a known right. Mere acceptance of possession without protest does not constitute waiver of the statutory right to interest under RERA. (Paras 11-20) C) Real Estate Law - Limitation - Section 18 of RERA, 2016 - The Court considered the limitation period for filing a complaint under RERA. It held that the complaint was filed within the period of limitation as the cause of action continues as long as possession is delayed. The allottees' complaint was not barred by limitation. (Paras 21-25)
Issue of Consideration
Whether acceptance of delayed possession by allottees without protest disentitles them from claiming interest under Section 18 of the Real Estate (Regulation and Development) Act, 2016, in view of Section 55 of the Indian Contract Act, 1872.
Final Decision
The High Court allowed the appeal, set aside the order of the Appellate Tribunal, and restored the order of MahaRERA directing the promoter to pay interest for delayed possession.
Law Points
- Section 18 of RERA
- 2016
- Section 55 of Indian Contract Act
- 1872
- Waiver
- Estoppel
- Interest for delayed possession
- Acceptance of performance without protest
