Allottees possess an unqualified right under section 18 of the Act to withdraw from the project and demand refunds if possession is not delivered in accordance with the agreement, emphasizing timely decisions post-occupancy certificate issuance.

JUDGMENT :

M. M. SATHAYE, J.

1. These four Second Appeals are arising out of common Judgment and Order 30/01/2024 passed by Maharashtra Real Estate Appellate Tribunal, Mumbai (‘the Appellate Tribunal’ for short) in Appeal Nos. AT001000000053706 of 2022, AT001000000053684 of 2022, AT001000000053692 of 2022 and AT001000000053686 of 2022. The Appellant is a common developer. The Respondents are Complainants/Allottees in respect of flat nos. 4E-502, 4H-302, 4C-104 and 4E-504 in project Aaryavarta at Mahale Farm, Off Mumbai-Agra Road, Nashik – 422 009. By the said impugned Order, the common order dated 17/02/2022 passed in 4 complaints filed by Respondent allottees, was set aside and the Appellant/promoter was directed to refund to the Respondents all the amounts including amounts paid for taxes, registration fees etc. with interest from the date of receipt of the amount. It was directed that if there is failure to pay the said amount, the Appellant/Promoter will pay interest on the total outstanding amount as on 29/02/2024 till realization. Charge of this amount is continued on the respective flats till the amounts are refunded.

2. In this judgment, the Real Estate (Regulation and Development) Act, 2016 is referred to as ‘the said Act’. Completion Certificate is referred to as ‘CC’. Occupation Certificate is referred to as ‘OC’. Maharashtra Real Estate Regulatory Authority, Mumbai is referred to as ‘MahaRERA’.

3. By earlier order dated 19/06/2025, following two questions of law were framed by this Court and parties were heard on the said questions of law. Learned counsel for both sides have filed compilation of documents and referred to them. Considering the issues involved, the appeals are admitted on following substantial questions of law and heard finally by consent of parties.

“(A) ‘Whether the allottee, under section 18 of Real Estate (Regulation And Development) Act, 2016, has an unqualified right to withdraw from the project to mean that he can choose to decide withdrawal from project after whatever time he decides at his own will, when possession of a flat/apartment/plot/building with Occupation Certificate is already offered?

(B) Also it needs to be considered whether the possession being offered by the developer alongwith Occupation Certificate (with reference to section 19(10) of the said Act) can only be possession without any litigation over the subject property ?”

4. Few facts necessary for disposal of these Appeals, are as under:

(a) In January 2013 and October 2013 the said 4 flats were agreed to be sold by Appellant in favour of respective Respondents.

(b) The date promised for handing over possession was 31/12/2017.

(c) The Respondents paid various amounts under the agreement to the Appellant.

(d) Some time in 2013, an ex-parte injunction order was passed by this Court and it was served upon the Appellant/Developer in a litigation filed by 3^rd party.

(e) By letters dated 22/05/2013, 12/07/2013 and 23/12/2015, the Appellant/Developer informed various developments in the pending litigation to the Respondents/allottees.

(f) Appellant/Developer on 16/02/2016 informed the Respondents that the decision of the Court has come in favour of the Developer.

(g) On 11/07/2018, Occupancy Certificate (‘Occupation Certificate’ or ‘OC’) for the building in which said flats are situated was obtained.

(h) By first letter dated 21/12/2018 the Appellant/Developer specifically informed the Respondents/Allottees that since OC has been obtained, possession of the suit flats can be given and the Respondents/allottees were called upon t