An allottee may claim statutory delay interest after possession, absent any prescribed limitation period.

The appellant-promoter launched the project “Antriksh Golf View” at Sector-78, Noida, in 2010. The respondent booked Unit No. 1903, Block L, measuring approximately 2,025 sq. ft., under an allotment letter dated 21 September 2010 and paid the agreed consideration, including a subsequent demand of ₹13,12,866 paid on 26 April 2016.

Under the allotment documents, particularly Annexure-B, possession was contractually required to be delivered by November 2012. The promoter issued an offer of possession only on 22 May 2017, without the Occupancy Certificate and other relevant documents; the Occupancy Certificate was obtained on 6 June 2018.

The respondent sought, inter alia, refund of excess electrical and super-area charges, issuance of possession and no-dues certificates, and compensation for delayed possession.

The Regulatory Authority passed directions on 22 September 2020, after which the promoter issued a fresh demand for ₹24,13,940 on 3 October 2020.

On appeal, the Uttar Pradesh Real Estate Appellate Tribunal held that the project was delayed, that the allottee remained entitled to delay interest despite taking possession, and that several demands raised by the promoter were unjustified. It directed payment of interest at MCLR + 1% on the deposited amount from December 2012 to 22 May 2017 and set aside the demand dated 3 October 2020.

The promoter challenged that order under Section 58 of the Real Estate (Regulation and Development) Act, 2016 (“RERA”).

1. Whether the order of the Appellate Tribunal was coram non judice because of the alleged defect in its constitution under Sections 43(3) and 55 of RERA?

2. Whether an allottee continuing with the project could claim interest for every month of delay until possession under the proviso to Section 18(1) of RERA, notwithstanding the absence of an immediate demand or the passage of time?

3. Whether the promoter could avoid liability for delayed possession on the ground that issuance of the Occupancy/Completion Certificate was affected by orders of the National Green Tribunal concerning the Okhla Bird Sanctuary?

4. Whether the promoter was entitled to exclusion of the period from 14 August 2013 to 19 August 2015—the alleged “Zero Period”—from the computation of delay interest?

The Court applied Section 18(1) of RERA, which provides two remedies for delayed possession: an allottee may withdraw and seek refund with interest and compensation, or, if the allottee continues with the project, may claim interest for every month of delay until possession is handed over.

It applied Sections 43(3) and 55 of RERA, particularly Section 55, which provides that proceedings of the Appellate Tribunal are not invalid merely because of a vacancy, defect in constitution or appointment, or procedural irregularity not affecting the merits.

The Court also relied on the contractual rule that Annexure-B prevailed in the event of inconsistency with the allotment letter, making November 2012 the agreed possession date.

With respect to the NGT proceedings, the Court considered Griha Pravesh Buildteck Pvt. Ltd. v. Suresh Chander Sharma, Civil Appeal No. 33 of 2024, order dated 3 December 2024, under which interest on compensation was excluded for the period from 14 August 2013 to 19 August 2015 in appropriate projects affected by the NGT-related restrictions.

The Court further applied the principles that a party cannot approbate and reprobate or take mutually inconsistent positions.

The Court rejected the challenge to the Tribunal’s constitution because the promoter had not raised the objection before the Tribunal, the Tribunal had itself recorded reasons for proceeding with a Bench comprising the Chairman and Judicial Member, and Section 55 protected the proceedings from invalidation on account of a constitutional defect not affecting the merits.

On delay interest, the Court held that Section 18(1) does not prescribe a limitation period for an allottee who retains the unit and seeks interest for delayed possession. The word “demand” in the first part of Section 18(1) could not defeat the substantive statutory right under the proviso, particularly where the respondent had continuously corresponded with the promoter and had not waived the claim.

The Court found that the contractual possession date was November 2012 and that the promoter had already defaulted before the NGT orders came into force in August 2013.

Although the promoter relied on the NGT stay and the “Zero Period,” it simultaneously asserted that construction had been completed in 2014 and that it had applied for the Occupancy Certificate. These positions were mutually inconsistent.

The Court further noted that the promoter applied for the certificate only on 27 August 2014 and issued possession in 2017 without the requisite certificate and documents. Consequently, the delay could not be attributed entirely to the NGT stay or to the competent authority.

It held that the Appellate Tribunal’s order was not invalid for want of proper constitution; that the respondent’s claim for delay interest under Section 18(1) was maintainable despite possession having been taken and despite the absence of an earlier formal demand; and that the promoter could not avoid liability by relying on the NGT proceedings or the alleged “Zero Period”.

The appeal was dismissed as meritless.

The directions requiring payment of delay interest at MCLR + 1% from December 2012 to 22 May 2017, setting aside the demand dated 3 October 2020, and issuing a fresh demand in accordance with the allotment documents and the Tribunal’s observations were consequently left undisturbed.