Court says Section 18(1) of RERA gives continuing right to interest till possession; builder’s NGT-stay defence rejected as inconsistent and limited to “zero period” only.
The Allahabad High Court has dismissed the appeal filed by Antriksh Developers and Promoters Pvt. Ltd. and upheld the order directing payment of delay interest to a homebuyer for late delivery of possession in its Noida project, Antriksh Golf View.
Justice Prashant Kumar held that under Section 18(1) of the Real Estate (Regulation and Development) Act, 2016, an allottee who does not withdraw from the project is entitled to interest for every month of delay until possession is handed over. The Court ruled that such a claim is not barred merely because it was raised later, and that the word “demand” in the provision cannot be read in a manner that defeats the statutory right of the allottee.
The dispute arose from a flat booked by Tripti Agarwal in 2010 in the project located in Sector-78, Noida. The allotment letter promised possession by December 2012, with Annexure-B clarifying that possession was to be given by November 2012 in case of contradiction. However, the builder issued a written offer of possession only on 3 March 2017, and that too without an Occupancy Certificate. The Occupancy Certificate was obtained only on 6 June 2018.
The homebuyer later approached the Real Estate Regulatory Authority seeking delay compensation and other reliefs. The Appellate Tribunal had already held that the project was delayed and directed the promoter to pay delay interest at MCLR plus 1% from December 2012 to 3 March 2017. It also set aside a fresh demand letter issued by the builder in 2020.
Before the High Court, the builder argued that the delay was caused by the National Green Tribunal’s orders relating to the Okhla Bird Sanctuary and that the Supreme Court’s ruling in Griha Pravesh Build Teck Pvt. Ltd. v. Suresh Chander Sharma entitled developers to a “zero period” exclusion between 14 August 2013 and 19 August 2015. The company also claimed that the project had been completed in 2014 and that the delay in issuing approvals was due to the authorities.
The High Court rejected these arguments, noting that the builder had taken mutually destructive stands by claiming both that the project was completed in 2014 and that the NGT stay prevented completion. The Court said a party cannot “approbate and reprobate” or “blow hot and cold” in the same breath. It further held that the “zero period” benefit recognized by the Supreme Court applies only to that limited timeframe and cannot erase a default that had already begun before August 2013.
The Court emphasized that the contractual possession date was November 2012, meaning the builder had already defaulted before the NGT stay came into effect. It also found that the builder’s delayed possession offer in 2017, without the required approvals, showed failure to complete the project within the agreed period or to pursue statutory clearances diligently.
Finding no merit in the appeal, the High Court dismissed it and affirmed the homebuyer’s right to delay interest under RERA.
Bottom Line:
Real Estate (Regulation and Development) Act - Under Section 18(1) of the RERA Act, an allottee who does not withdraw from the project is entitled to interest for every month of delay till handing over of possession - Such claim is not barred merely because it was raised later, and the promoter cannot avoid liability by taking inconsistent pleas regarding delay caused by an NGT stay order.
Statutory provision(s): Section 18(1), Section 58 of the Real Estate (Regulation and Development) Act, 2016
