Possession Date In Housing Loan Agreement Cannot Override Date In Flat Buyer's Agreement: Haryana REAT

The Haryana Real Estate Appellate Tribunal has held that a different possession date mentioned in a tripartite agreement executed for a housing loan does not, by itself, override the contractual possession deadline under the flat buyer's agreement.

Dismissing an appeal filed by two homebuyers seeking delayed possession charges against Ashiana Housing Ltd. and Universe Heights (India) Pvt. Ltd. over their “Ashiana Anmol” project in Sohna, Gurugram, the Tribunal upheld a RERA order directing them to clear outstanding dues and take possession of the flat.

Chairman Justice Rajan Gupta and Judicial Member Dr. Virender Parshad observed, “Merely because a different date is mentioned in such an ancillary financing document, it cannot, by itself, be construed as modifying or superseding the possession schedule contained in the FBA."

Indira Mahlawat and Rajvir Mahlawat had booked a 1,275-square-foot flat in the project for ₹68,09,325.

Their flat buyer's agreement, executed on April 8, 2015, allowed 36 months for construction, together with a six-month grace period, from commencement of construction.

Environmental clearance was granted on December 28, 2015, and construction began on March 1, 2016, placing the contractual possession deadline at September 1, 2019.

The promoters obtained the occupation certificate on June 19, 2019.

The Mahlawats sought cancellation and refund on August 9, 2019, and approached the District Consumer Commission, South Delhi.

Subsequently, the promoters offered possession on August 19, 2019.

With the ₹9,57,039 balance unpaid and possession not accepted despite reminders, the promoters approached the Haryana Real Estate Regulatory Authority, Gurugram, seeking directions requiring the buyers to clear dues and take possession.

On October 17, 2023, the Authority directed payment of outstanding dues with 10.75% annual interest and acceptance of possession.

It allowed 60 days for payment under Sections 19(6) and 19(7) of the Real Estate (Regulation and Development) Act, 2016, failing which cancellation or termination could follow, subject to contractual and regulatory requirements.

The Mahlawats appealed, arguing that a tripartite agreement executed with the promoters and lending bank on March 22, 2016, fixed December 2018 as the possession date and superseded the flat agreement's timeline.

They also claimed payments of ₹68,60,515, relying on the promoters' ledger, and challenged the possession offer because the occupation certificate was not enclosed. The promoters maintained that the flat agreement governed possession and that their offer was timely.

During the appeal, physical possession was handed over and a conveyance deed executed, leaving delay compensation as the sole surviving issue.

Rejecting the buyers' interpretation, the Tribunal held that the flat buyer's agreement, being the principal contract, governed the parties' substantive rights and obligations, including the deadline for completing construction and delivering possession.

It observed, “The Flat Buyer's Agreement is the principal agreement executed between the promoter and the allottees. It governs the substantive rights and obligations of both parties, including the agreed date for completion of construction and delivery of possession.”

The loan agreement primarily facilitated financing, and nothing established an intention to amend or replace the possession clause.

Both the occupation certificate and possession offer preceded September 1, 2019, leaving no delay attributable to the promoters.

Finding the compensation claim based on the loan agreement's earlier date devoid of merit, the Tribunal dismissed the appeal on November 3, 2026.

For Petitioner (Indira Mahlawat and Rajvir Mahlawat): Advocates Rupali Shekhar Verma, Neetu Singh Rana.

For Respondent (Ashiana Housing Ltd. and Universe Heights (India) Pvt. Ltd.): Advocates Venkat Rao, Pankaj Chandola.