Allahabad High Court
Ifci Infrastructure Development Ltd. ... vs Amit Srivastava on 4 March, 2024
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:19677 Court No. - 5 Case :- RERA APPEAL No. - 14 of 2023 Appellant :- Ifci Infrastructure Development Ltd. New Delhi Thru. Authorized Signatory Prasanjeet Singh Yadav Respondent :- Amit Srivastava Counsel for Appellant :- Anand Shanker Asthana Hon'ble Abdul Moin,J.
1. Heard Shri Siddharth Asthana, learned counsel for the appellant.
2. Nobody appears on behalf of the respondent despite the notice having been served on the respondent.
3. Learned counsel for the appellant has expressed urgency in the matter, accordingly the Court proceeds to hear and decide the matter finally.
4. The instant appeal has been filed praying for the following main relief:
"i. Set aside the impugned judgement dated 29.05.2023 passed by the Real Estate Appellate Tribunal in Appeal No. 270 of 2019 (Amit Srivastava vs IFCI Infrastructure Development Ltd)."
5. The substantial questions of law have been indicated in the appeal however for the reasons hereinbelow the Court does not deem it fit to admit the appeal.
6. The facts set forth by learned counsel for the appellant are that the respondent had been allotted a flat vide allotment letter dated 27.03.2012 (page 185 of the appeal) which was a provisional allotment for apartment in a residential project. Clause 23.1 of the allotment letter indicated the time for handing over the possession per which it was indicated that the tentative time for completion of project is June 2013. However the said clause also provided that the date of possession may get extended on account of the facts which are indicated in the said clause which, so far as the present appeal is concerned, has been indicated as force majeure which is on account of road widening which was carried out by the National High Authority of India, the appellant was unable to develop the project and there was delay in completion of the project.
7. It is contended that being aggrieved with not being handed over the said apartment a complaint was filed by the respondent on 31.10.2017 before the Real Estate Regulatory Authority (hereinafter referred to as the Authority) (page 77) praying for compensation for the delay in handing over the flat. The said complaint was dismissed by the Authority vide the order dated 13.02.2019, a copy of which is annexure 3 to the appeal.
8. The reason which prevailed upon the Authority for dismissal of the complaint was that during pendency of the complaint, the apartment had been handed over to the complainant and a sale deed had been executed on 26.04.2018. Considering this the authority was of the view that as the registered sale deed contains a stipulation that upon taking over the possession of the apartment, the vendee shall have no claim or complaint against the vendor as to any item of work, quality of work, material, area / size of apartment, consequently in view of the sale deed and the said clause, the complaint itself was not maintainable.
9. Being aggrieved the respondent filed an appeal before the U.P. Real Estate Appellate Tribunal, Lucknow (hereinafter referred to as the Tribunal) which was registered as Appeal No. 270 of 2019. The learned Tribunal after considering the objections raised by the appellant herein has allowed the appeal and has directed the appellant to pay interest for the delayed period i.e. from the proposed date of possession as per the Builder Buyer Agreement / allotment letter dated 27.03.2012 till the offer of possession on 26.09.2017 at the rate of MCLR + 1% per annum on the amount deposited by the allottee.
10. Being aggrieved the instant appeal has been filed.
11. Learned counsel for the appellant has raised two grounds in order to challenge the order of the learned Tribunal namely (a) that in terms of clause 23.1 of the allotment letter, in case of circumstances beyond control of the appellant / promoter the tentative time for completion of the project which was June 2013 could get extended which has not been considered by learned Tribunal while passing the order impugned and (b) the prayer made by the complainant was for compensation and learned Tribunal has awarded interest for delayed period. No other ground has been urged.
12. So far as the ground (a) is concerned that in terms of clause 23.1 of the allotment letter, for circumstances beyond control of the promoter the tentative time for completion of the project which was June 2013 could get extended, perusal of the reply as had been filed by the appellant before the learned Tribunal, a copy of which is annexure 5 to the appeal, would indicate that the appellant specifically stated that the delay in the project arose on account of modalities to transfer the portion of the project land to Ghaziabad Development Authority at behest of National High Authority of India for widening the Delhi Meerut Expressway from 2010-2016. However it has been admitted before learned Tribunal by the appellant that the portion of the Khasra was acquired for road widening vide gazette notification dated 08.08.2011. Thus the reasons which have been indicated before the learned Tribunal of road widening had already occurred at the time of issue of provisional letter which has been issued on 27.03.2012 and thus it cannot be said that the reasons which were indicated before the learned Tribunal for the delay in project were factors which were beyond control of the appellant, the reasons having occurred even prior to issuance of allotment letter. Fully knowing about the gazette notification dated 08.08.2011 the appellant had issued the allotment letter on 27.03.2012 and as such the said reason cannot be considered to be a reason beyond the control of the appellant to indicate the delay in handing over of the apartment to the allottee and thus would not fall within the ambit of being force majeure. Thus the said ground is rejected.
13. So far as ground (b) as raised by the appellant is concerned that is the prayer made by the complainant was for compensation while learned Tribunal has awarded interest for delayed period, the said ground may also not detain this Court taking into consideration the provisions of Section 18(1) of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as the Act, 2016) which provides 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. Section 18 of the Act, 2016 itself provides for return of amount of compensation. Admittedly the sale deed has been executed on 20.03.2018 for an apartment which was to be handed over as per the provisional letter of allotment by June 2013 meaning thereby that there has been delay of almost 5 years of execution of sale deed. The completion certificate is dated 31.10.2017. The learned Tribunal has examined the provisions of Section 71 of the Act, 2016 to hold that the quantum of compensation of interest or "interest as he thinks fit" under Section 27 is to be decided taking into consideration the factors listed under Section 72 of the Act, 2016. Learned Tribunal after considering the judgement of Hon'ble Supreme Court in Civil Appeal No(s). 6745-6749 of 2021 in re: M/s Newtech Promoters & Developers Pvt Ltd vs State of U.P. and others has held that where the allottee decides to stay in the project even due to delay in handing over of possession he shall be paid by the promoter interest for every month of delay till the handing over of the possession. Considering this learned Tribunal has directed for payment of interest for the delayed period from the proposed date of possession till offer of possession on 26.09.2017 and accordingly considering the aforesaid discussion the ground (b) as raised by the appellant also merits to be rejected.
14. Considering the aforesaid no substantial question of law arises in the instant Appeal. The appeal is dismissed at the admission stage.
Order Date :- 4.3.2024 J.K. Dinkar