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Topic: Kuldeep Kohli's Zoom Meeting
Time: Apr 30, 2022 06:00 PM India
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Greetings,
Please find the attached links to various videos pertaining to important matters related to RERA. Hope you will have a educative viewing.
1. Solution for dispute arising out of settlement agreement with EMAAR.
2. What is a valid offer of possession
3. Execution powers of Hon. RERA authority
4. Assured returns under Hon. RERA authority.
5. The concept of constructive possession
6. Actions Hon. RERA can take for execution of their own orders
For Informative and Educative Purposes Only
MUST READ
Validity
of offer of possession: It is necessary to clarify this concept because after
valid and lawful offer of possession, liability
of promoter for delayed offer of possession comes to an end. On the other hand, if the possession is not valid
and lawful, liability of promoter continues
till a valid offer is made and allottee remains entitled to receive interest for the delay caused in handing
over valid possession. The authority after detailed
consideration of the matter has arrived at the conclusion that a valid
offer of possession must have
following components:
1. Possession must be offered after obtaining
occupation certificate- The subject unit after its
completion should have received occupation certificate
from the concerned department certifying that all the basic infrastructural facilities have been laid and are operational. Such infrastructural
facilities include water supply, sewerage system, storm water drainage, electricity supply, roads and street
lighting.
2. The subject unit should be in habitable condition- The test of habitability
is that the allottee should be able to live in the subject unit within 30 days of the offer of possession after carrying out basic cleaning
works and getting
electricity, water, and sewer connections, etc. from the relevant authorities. In a habitable
unit, all the common facilities like lifts, stairs, lobbies,
etc. should be functional or capable of being made functional within 30 days after completing prescribed formalities.
The authority is further of the view that minor defects like little gaps in the windows
or minor cracks in some of the tiles, or chipping plaster
or chipping paint at some places or improper functioning of drawers of kitchen or
cupboards etc. are minor defects which
do not render an apartment uninhabitable. Such minor defects can be rectified later at the cost of the
developers. The allottees should accept possession of an apartment
with such minor defects under protest.
This authority will award suitable relief or compensation for rectification of minor defects after taking over of possession under protest.
However, if the subject
unit is not at all habitable because
the plastering work is yet to be done, flooring
works is yet to be done, common
services like lift etc. are non-operational, infrastructural facilities
are non-operational, then the subject
unit shall be deemed as uninhabitable and offer of possession of an uninhabitable unit will not be considered a legally valid
offer of possession.
3. Possession
should not be accompanied by unreasonable additional demands-
In
several cases, additional demands are made and sent along with the offer of possession. Such
additional demands could be of minor
nature, or they could be significant and unreasonable which puts heavy
burden upon the allottees. An offer accompanied with unreasonable demands beyond the scope of
provisions of agreement should be termed an invalid offer of possession. Unreasonable demands itself
would make an offer unsustainable in the eyes of law. The authority is of the view that if the
additional demands are made by the developer, the allottees may accept possession under protest or decline to take possession raising objection against
unjustified demands.
ADVOCATE
KULDEEP KUMAR KOHLI
KOHLI
AND KOHLI LAW ASSOCIATES
V-3/11,
DLF PHASE III, GURUGRAM,
HARYANA – 122002
Ph:01244014318,0124
4990107
Mail
ID: contact@kohlilegal.com
For Informative and Educative Purposes Only
MUST READ
In
most of the builder buyer’s agreements, the allottee is entitled to delayed possession charges/ interest only at the nominal rate ranging from Rs. 5/- to Rs.15/- per square feet per month for
the period of such delay depending upon projects,
whereas the promoter
is entitled to exorbitant interest
ranging from 18% to 24% per annum on account
of delay in making payments by the allottees. Time and again,
the Hon'ble Supreme Court and various High Courts as well as the NCDRC
have declared these types of discriminatory terms and conditions of the
builder buyer’s agreement not final and binding. The Act has provided a level playing
field in this regard and has mandated
that the rate of interest
chargeable from the allottee by the
promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the
allottee, in case of default. The legislature
in its wisdom in the subordinate legislation i.e., the rules, has
determined the prescribed rate of
interest as per rule 15 of the rules. So, the rate of interest so determined by the legislature, is reasonable and if the said rule is followed
to award interest,
it will ensure
uniform practice in all the cases. To support this contention
reference can be made from the Judgement of Pioneer Urban Land &
Infrastructure Limited Vs. Govindan Raghavan, 2019(2) R.C.R. (Civil) 738. In
the aforesaid judgment, the Hon’ble Apex Court finding the terms and conditions
of the agreement to be one sided unfair and unreasonable has upheld the award
of the National Commission awarding the interest as per Rule 15 of the Rules at
the rate of 10.7% per annum and not on the contractual rate The rule 15 of the
rules has determined the prescribed rate of interest and it provides that for
the purpose of proviso to section 12; section 18; and sub- sections (4) and (7)
of section 19, the “interest at the rate prescribed” shall be the State Bank of
India highest marginal cost of lending rate +2%. Consequently, as per website
of the State Bank of India i.e., https://sbi.co.in, the marginal cost of
lending rate (in short, MCLR) as on date i.e., 12.08.2021 is 7.30%.
Accordingly, the prescribed rate of interest will be marginal cost of lending
rate +2% i.e., 9.30%.
KOHLI
AND KOHLI LAW ASSOCIATES
V-3/11,
DLF PHASE III, GURUGRAM,
HARYANA – 122002
Ph:01244014318,0124
4990107
Mail
ID: contact@kohlilegal.com
WWW.KOHLILEGAL.COM
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