DEEP HOMES AND CONSTRUCTIONS LLPversusMRS. MEGHANA ABHISHEK LAKHOTIA

                                                                               -SA-389-2026.DOC




                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         CIVIL APPELLATE JURISDICTION
                                       SECOND APPEAL NO. 389 OF 2026


                      Deep Homes And Construction LLP                            ..Appellant
                           Versus
                      Meghana Abhishek Lakhotia & Anr                        …Respondents

                      Mr. Sanjay Chaturvedi, for the Appellant.
                      Mr. Keshav Borhade, for the Respondents.

                                                  CORAM :        N. J. JAMADAR, J.
                                                  DATE :         19th AUGUST 2026


                      ORDER:

                      1.    This Second Appeal is directed against a common judgment and

                      order dated 2nd April 2026 in Appeal No. AT006000000103939 of 2022

                      and Appeal No. AT006000000134059, whereby the Appeal preferred by

                      the Allottees against a common order dated 27 th May 2022 passed by

                      the Maharashtra Real Estate Regulatory Authority (“MahaRERA”), came

ARUN
RAMCHANDRA
                      to be partly allowed and the Appellant-Promoter was directed to pay
SANKPAL

Digitally signed by
ARUN
RAMCHANDRA
                      the interest on the amount of Rs.1,36,50,167/- paid by the Allottees to
SANKPAL
Date: 2026.08.27
21:02:39 +0530

                      the Appellant-Promoter towards consideration at the SBI’s hightest

                      Marginal Cost Lending Rate (MCLR) plus 2% with effect from 1 st April

                      2019 till 14th June 2021 and the Appeal preferred by the Appellant-

                      Promoter came to be dismissed.


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2.     The Appeals arose in the backdrop of the following facts.

2.1    The Respondents-Allottees had agreed to purchase Flat No. 1601

on the 16th floor in a building named, “Auralis The Twins”, then being

developed by the Appellant-Promoter, under a registered Agreement for

Sale   dated   31st   January   2019,    for   a   total   consideration   of

Rs.1,36,81,500/-. Under the terms of the contract, the Promoter was to

deliver the possession of the subject flat on or before 31st March 2019.

2.2    The project got delayed. The Promoter gave fit out possession of

the subject flat on 25th March 2021 without obtaining occupation

certificate. Eventually, the occupation certificate was obtained on 14 th

June 2021.

2.3    The Allottees filed a complaint before the MahaRERA alleging

delay in the delivery of possession of the subject flat and sought interest

on the amount of consideration parted with by the Allottees on account

of delay in delivery of possession, rental income and compensation for

the delay in the project.

2.4    The Authority was persuaded to partly allow the complaint and

direct the Promoter to pay interest to the Allottees for the period

commencing from 1st April 2019 to the delivery of fit out possession on

25th March 2021, only. The Authority was also persuaded to grant the

benefit of moratorium in regard to the payment of interest during the

COVID-19 pandemic period pursuant to the Notifications/Orders Nos.


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13 and 14 dated 2nd April 2020 and 18th May 2020 issued by the

MahaRERA.

2.5   Being aggrieved, the Allottees preferred an Appeal, being Appeal

No. AT006000000134059 of 2022. The Promoter also preferred an

Appeal, being Appeal No. AT006000000103939 of 2022.

2.6   By the impugned order, the Appellate Tribunal was persuaded to

interfere with the order passed by the Authority, primarily on two

counts. First, since the occupation certificate was obtained on 14 th June

2021, the delivery of fit out possession on 25 th March 2021 did not

amount to delivery of possession of the subject flat. And, thus, the

Allottees were entitled to payment of interest on the amount of

Rs.1,30,50,167/- from 1st April 2019 till the issue of occupation

certificate on 14th June 2021. Second, the MahaRERA was in error in

granting the benefit of the moratorium to the Promoter as agreed date

of delivery of possession, i.e. 31 st March 2019 was much prior to the

onset of COVID 19 pandemic. Thus the promoter was not entitled to the

benefit of moratorium. Therefore, the Appellate Tribunal directed the

Promoter to pay interest at the aforesaid rate with effect from 1 st April

2019 till 14th June 2021..

2.7   Being aggrieved, the Promoter has preferred this Appeal.




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3.    Mr. Sanjay Chaturvedi, the learned Counsel for the Appellant,

submitted that the Appellate Tribunal committed manifest error in law

in directing the payment of interest till 14 th June 2021, though

admittedly the fit out possession was delivered on 25 th March 2021.

Secondly, the disallowance of the benefit of the moratorium was in the

teeth of the express Notifications/Orders. Thirdly, the delay in the

delivery of possession of the subject flat was not at all attributable to

the Promoter as the delay occurred on account of the unforeseen events

beyond the control of the Promoter. Inviting attention of the Court to

the recitals in Clause 21 of the Agreement for Sale, Mr. Chaturvedi

submitted that the parties had explicitly agreed that upon occurrence of

the force majeure events as enumerated therein, the Promoter would be

entitled to extension of time for delivery of possession of the subject

flat. Lastly, Mr. Chaturvedi would submit that, the Appellate Tribunal

did not advert to the corresponding obligation of the Allottees under

Section 19(6) of the Real Estate (Regulation and Development) Act,

2016 (“RERA 2016”). These infirmities give rise to substantial questions

of law, urged Mr. Chaturvedi.

4.     In opposition to this, Mr. Keshav Borhade, the learned Counsel

for Respondent Nos. 1 and 2-Allottees, would submit that in the

backdrop of the uncontroverted facts the impugned order is wholly

justifiable. The grounds now sought to be urged by the Promoter are


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clearly untenable. The failure to deliver the possession of the subject flat

in accordance with the terms of the Agreement between the parties,

give rise to indefeasible right of the Allottees to receive interest on the

amount of consideration, for the delayed period. Thus, no substantial

question of law arises for consideration.

5.      There is not much controversy over the foundational facts. First,

the execution of the registered Agreement for Sale and the terms of the

bargain incorporated therein are not put in contest. Incontrovertibly the

possession of the subject flat was agreed to be delivered on or before

31st March 2019. Indisputably the project got delayed and only fit out

possession and that too without occupation certificate, was delivered on

25th March 2021. Occupation Certificate was obtained on 14 th June

2021.

6.      In the backdrop of aforesaid uncontroverted facts, the submission

on behalf of the Petitioner that the possession of the subject flat was

delivered on 25th March 2021 does not advance the cause of the

Promoter. The Appellate Tribunal was justified in holding that the

delivery of fit out possession without occupation certificate does not

amount to delivery of possession of the subject flat in accordance with

the terms of the Agreement. Under Section 11(4), it is the obligation of

the Promoter to obtain the occupation certificate. Conversely, under

Section 19(10), the liability of the Allottee is to take possession of the


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apartment within a period of two months of the grant of occupancy

certificate. Thus, possession sans occupancy certificate is non est in the

eye of law. The Appellate Tribunal was thus within its right in

construing the delivery of date of possession as the date on which

occupation certificate was obtained by the Promoter.

7.    The support sought to be drawn by Mr. Chaturvedi from Clause

21 of the Agreement for Sale to the submission that on account fo force

majeure events the parties had agreed that the period of delivery of

possession would stand extended, appears to be of little assistance.

8.    A bare perusal of the Clause 21 of the Agreement for Sale

indicates that routine and mundane events have also been incorporated

therein as the situations beyond the control of the Promoter. For

instance, unavailability of the building material, water or electricity

supply; any directives by the Government and/or by the Local Authority,

economic downturn, changes in any Rules and Regulations, Bye-laws of

various Statutory Bodies and Authorities, delay in the issue of

occupation certificate and/or any other sanction and/or grant of any

permission, approvals etc.

9.    The aforesaid events ex-facie do not constitute a force majeure

event within the meaning of Section 6 of RERA 2016. The Explanation

appended to Section 6 provides that for the purpose of that section, the

expression “force majeure” shall mean a case of war, flood, drought,


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fire, cyclone, earthquake or any other calamity caused by nature

affecting the regular development of the real estate project.

10.   By    no   stretch   of   imagination,    the   afore     enumerated

events/contingencies in Clause 21 of the Agreement for Sale can qualify

as force majeure events. The decision of the Division Bench of this Court

in the case of Neelkamal Realtors Suburban Pvt And Anr Vs Union of

India & Ors1 was thus rightly relied upon by the Appellate Tribunal to

negate the claim premised on force majeure events.

11.   Similarly, disallowance of the benefit of the moratorium in the

matter of the application of the interest by the Appellate Tribunal

appeared to be sustainable. The possession of the subject flat was

agreed to be delivered on or before 31 st March 2019, well a year before

the COVID 19 Pandemic restrictions were imposed.

12.    The right of Allottees to get interest from the Promoter on the

amount of consideration paid to the Promoter in the event of delay in

delivery of possession has been construed to be an indefeasible right. In

the case of M/s Newtech Promoters And Developers Pvt Ltd Vs State of

U.P. & Ors2, the Supreme Court has enunciated in clear and explicit

terms that Section 18(1) gives an indefeasible right to the allottee to get

a return of the amount on demand if the promoter is unable to hand

over possession in terms of the Agreement for Sale or has failed to


1     (2017) SCC OnLine Bom 9302.
2     2021 SCC OnLine SC 1044.
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complete the project by the date specified. In the case of Imperia

Structures Ltd. Vs. Anil Patni and Another3, the Supreme Court held

that, Section 18 confers an unqualified right upon an allottee to get a

refund of the amount deposited with the promoter and interest at the

prescribed rate, if the promoter fails to complete or is unable to give

possession of an apartment as per the date specified in the agreement.

The proviso to Section 18(1) contemplates a situation where the

allottee does not intend to withdraw from the project, in that case, he is

entitled to and must be paid interest for every month of delay till the

handing over of the possession.

13.     For the forgoing reasons, no question of law, much less a

substantial question of law, arises for consideration.

14.   The Second Appeal thus stands dismissed.



                                             [N. J. JAMADAR, J.]




3     (2020) 10 SCC 783.
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