M/S SEEMA PROMOTERS AND BUILDERS PVT LTDversusCOL ASOKE KUMAR

                                                                                   7-SA-320-2026.DOC




                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         CIVIL APPELLATE JURISDICTION
                                        SECOND APPEAL NO. 320 OF 2026


                      M/s Seema Promoters And Builders Pvt Ltd                       ..Appellant
                            Versus
                      Col Asoke Kumar & Anr                                   …Respondents

                                                      WITH
                                   INTERIM APPLICATION NO. 5196 OF 2026
                                                       IN
                                      SECOND APPEAL NO. 320 OF 2026

                      Mr. Rajesh A Tekale, for the Appellant/Applicant.

                                                  CORAM:          N. J. JAMADAR, J.
                                                  DATE :          22nd JULY 2026


                      ORAL ORDER:

                      1.    Heard Mr. Rajesh A Tekale, the learned Counsel for the Appellant.

                      2.    This Second Appeal is directed against a judgment and order
ARUN
RAMCHANDRA
SANKPAL

Digitally signed by
ARUN RAMCHANDRA
                      dated 23rd April 2026 passed by the Maharashtra Real Estate Appellate
SANKPAL
Date: 2026.07.24
18:21:41 +0530

                      Tribunal, Mumbai, in Appeal No. AT006000000144418, whereby the

                      Appellate Tribunal has allowed the Appeal preferred by the Appellants-

                      Allottees and directed the Appellant-Promoter to refund the entire

                      consideration amount paid by the Appellants-Allottees with interest as

                      per the State Bank of India’s highest Marginal Cost of Lending Rate


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(MCLR) + 2% calculated from the respective dates of payment till

realization of the entire amount to the Appellants-Allottees.

3.    The Allottees have booked the shops bearing Nos. 5 and 6 and an

Agreement for Sale was executed on 27 th June 2017. Out of the agreed

consideration of Rs.10,42,600/- for Shop No.5 and Rs.12,50,500/- for

Shop No. 6, the Allottees have paid the amount of Rs.9,46,520/- and

Rs.11,37,500/- respectively.

4.    Under the terms of the Agreement, the possession of the subject

shops was to be delivered on or before 31 st March 2019. Evidently, the

Appellant-Promoter did not complete the project before the scheduled

agreed date of delivery of possession. The occupancy certificate was

obtained in the month of February 2020.

5.    Before the occupancy certificate could be obtained and possession

offered, the Allottees have addressed a letter to the promoter on 17 th

October 2019 and sought refund of the consideration parted with by the

Allottees along with interest thereon, invoking the provisions contained

in Section 18(1) of the Real Estate (Regulation and Development) Act,

2016 (“the RERA 2016”).

6.    Eventually,   the   Allottees   lodged    complaint       before   the

Maharashtra Real Estate Regulatory Authority, Mumbai (“the Regulatory

Authority”).   By an order dated 23rd January 2023, the Regulatory

Authority was persuaded to dismiss the complaint as the occupancy


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certificate in respect of the subject shops was obtained on 5 th February

2020 and the withdrawal notice seeking refund of the consideration

was addressed by the Allottee on 12th February 2021.

7.    Being aggrieved, the Allottee preferred an Appeal before the

Appellate Tribunal. By the impugned order, the Appellate Tribunal was

persuaded to allow the Appeal and direct the refund of the amount of

consideration paid by the Allottee along with interest.

8.    Mr. Rajesh Tekale, the learned Counsel for the Appellant,

submitted that since the occupation certificate was obtained in the

month of February 2020, the Allottee could not have declined to take

possession of the subject shops. It was obligatory on the Allottee to take

the possession of the subject shops within a period of two months of the

grant of the occupation certificate under Section 19(10) of RERA 2016.

The Appellate Tribunal has committed a gross error in not considering

the import of the provisions contained in Sections 18 and 19(10) of the

RERA 2016. Thus, according to the learned Counsel for the Appellant,

a substantial question of law arises for consideration.

9.    I find it difficult to accede to the submissions on behalf of the

Appellant. The fact remains that the possession of the subject shops was

to be delivered by 31st March 2019. Indisputably, the shops were not

ready for delivery of possession by the expiry of the agreed date for the

delivery of possession. The occupancy certificate was obtained on 5 th


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February 2020. Prior to the obtaining of the occupancy certificate, the

Allottee had addressed the communication and sought the refund of the

consideration.

10.   In paragraphs 17 and 18 of the impugned judgment, the

Appellate Tribunal has extracted the purport of the communication

addressed by the Allottee seeking the refund of the amount. It is

specifically recorded that in the email of 17 th October 2019, the

attention of the Appellant-Promoter was drawn to the provisions

contained in Section 18 of RERA 2016. The Appellate Tribunal has

referred to the series of correspondence, addressed by the Allottee,

before the grant of the occupancy certificate.

11.   In this view of the matter and having regard to the ultimate

order passed by the Appellate Tribunal thereby directing the refund of

the entire amount of consideration along with interest thereon in the

face of the indisputable fact that the possession of the subject shops

could not be delivered by 31 st March 2019, and the occupation

certificate was obtained after the Allottee sought the refund of the

amount, no question of law, much less a substantial question of law,

arises for consideration.

12.   The Appeal stands dismissed.




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13.   In view of the dismissal of the Appeal, the Interim Application

stands disposed.

                                         [N. J. JAMADAR, J.]




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