Gurgaon: Punjab and Haryana high court has ruled that taking possession of a flat or executing a conveyance deed does not extinguish a homebuyer’s statutory right to claim compensation for delayed possession under Real Estate (Regulation and Development) Act. Justice Jagmohan Bansal held that the promoter’s liability under Section 18(1) of the Act is mandatory and cannot be overridden by contractual terms or reduced merely because a buyer accepted possession.However, the court laid a limitation principle: although Rera prescribes no specific period for filing such complaints, buyers cannot approach the authority indefinitely. For cases where possession and conveyance have taken place, three years from handover would be a reasonable period, subject to exclusion of the Covid period from March 15, 2020 to Feb 28, 2022, the court said, while deciding 47 appeals filed by Emaar India against homebuyers of Gurgaon Greens in Sector 102.The court rejected Emaar’s argument that execution of a conveyance deed ended the contractual relationship and barred buyers from approaching Haryana Real Estate Regulatory Authority (HRera) for interest on delayed possession.HC noted that, unlike Section 19(8) of the Act, which expressly allows reduction of an allottee’s interest liability by mutual agreement, Section 18(1) contains no provision permitting waiver or reduction of the promoter’s liability through an agreement.Accepting possession and executing a conveyance deed, by itself, does not amount to waiver of the right to claim interest for delay, said the court, adding that the liability crystallises when the home is handed over, giving the allottee the right to approach the authority if the promoter has not discharged it.At the same time, relying on Supreme Court precedents governing statutory powers where no limitation period is prescribed, Justice Bansal held that the doctrine of “reasonable period of limitation” would apply. Observing that no rigid formula can apply to every case, the court said where possession has been taken and the conveyance deed executed, three years from the date of possession would ordinarily be a reasonable period for filing a complaint under Section 31. The period from March 15, 2020, to Feb 28, 2022, must be excluded while computing limitation, in view of SC’s directions linked to Covid period.Advocates Aman Bahri and Jagdeep Kumar, who appeared for homebuyers, said the case concerned a flat in Emaar’s Gurgaon Greens project in Sector 102. Under the April 2013 buyer’s agreement, possession was due by Nov 16, 2016. The occupation certificate was obtained in May 2019, and possession was handed over in Dec 2019. The conveyance deed was executed in Feb 2020. The buyer approached HRera in Sept 2022 and was awarded 11% interest for the delay.The court also noted that, in the cases before it, Emaar had paid only about Rs 5-6 lakh against claimed liabilities exceeding Rs 40 lakh in some instances. It held that, in the absence of a categorical written waiver or full-and-final settlement, such payment could not by itself extinguish the statutory liability. The court left open the possibility of an exceptional case where a buyer had voluntarily and knowingly settled the interest claim for a lower amount.The appeals were dismissed on the buyers’ substantive right to claim interest but allowed on the question of limitation. “The cases have been remanded to the Authority to determine individually whether each complaint was filed within the reasonable period. The parties have been directed to appear before the Authority on Oct 16, with the Authority asked to endeavour to dispose of the matters within four months,” said advocate Jagdeep.He added that the order clarified that homebuyers do not lose their right to delayed possession interest merely because they took possession and signed a conveyance deed. “Normally execution of conveyance deed is considered as end of liability for the developer. This order will encourage homebuyers to seek delayed compensation even after taking possession and execution of conveyance deed,” said Jagdeep.In a similar case, a Lucknow bench of Allahabad high court recently held that a homebuyer does not lose his statutory right to claim interest for delay in handing over possession merely because he has subsequently accepted possession of the flat. The court in its Sept 23 order said Rera does not prescribe any specific limitation period for claiming interest on account of delayed possession. Justice Prashant Kumar made the observation while dismissing an appeal filed by Antriksh Developers and Promoters in a dispute relating to its Antriksh Golf View project at Sector 78 in Noida.
