Q. In July 2022, I booked a 2 BHK flat in a project in Mahim and signed the agreement for sale. The possession was promised on or before December 31, 2026. I have paid `1,50,00,000 as the initial amount and thereafter paid installments without any default. Originally, the builder was to construct a tower of 37 floors. However, he has now proposed to build 46 floors. As a result, the builder has revised the possession date to December 31, 2028. The flat originally allotted to me on the 15th floor is now being changed to the 17th floor. The builder has sent a supplementary agreement including these revised terms and has sought my consent. The supplementary agreement does not provide for any compensation for the delay. After having paid almost 65% of the amount, I do not want to withdraw from the project, but I expect the builder to compensate me for the two-year delay in possession. Please advise whether, after signing this supplementary agreement, I can still claim interest for the delay period. Also, is the consent of all homebuyers necessary for such changes in sanctioned building plans? —– Dr Varun Deshmukh
A. If your builder promised possession by December 31, 2026, in the agreement for sale and is now revising it to December 31, 2028, there is a clear delay of two years. This delay is on account of changes in the building plans originally disclosed to you. Hence, the builder is legally bound to pay interest at the rate of MCLR + 2% per annum under Section 18 of RERA. Further, the builder is changing the sanctioned plans and altering the floor allotted to you from the 15th to the 17th floor.
Under Section 14 of RERA, the builder is legally bound to obtain your individual consent before making such changes. Additionally, Section 14 provides that no other alterations or additions in the sanctioned plans, layout plans or specifications of the building or common areas can be made without the previous written consent of at least two-thirds of the allottees other than the builder. Thus, RERA does not require consent from all homebuyers, but from at least two-thirds of the allottees in the project.
The builder has deliberately omitted any clause in the supplementary agreement providing for interest or compensation for the two-year delay. If a homebuyer gives consent to the revised plans and revised possession date without safeguarding this right, it would be extremely difficult to later claim interest for the delay. Section 18 provides for payment of interest only if the promoter fails to give possession in accordance with the terms of the agreement for sale or by the date specified therein.
After signing the supplementary agreement, the builder is likely to argue that you voluntarily consented to the revised possession date and waived your right to claim interest. He may also contend that the supplementary agreement forms part of the original agreement for sale.
Therefore, you should insist that the Supplementary Agreement specifically incorporates a clause whereby the builder agrees to pay interest at MCLR + 2% per annum for every month of delay, with effect from January 2027. The clause should further state that such interest shall be paid before the 7th of every month until actual possession is handed over with a valid occupation certificate. Your consent to the revised possession date and altered plans should be expressly made subject to the inclusion of this clause, as prescribed under Section 18 of RERA.
(Advocate Shirish V Deshpande is chairman, Mumbai Grahak Panchayat. Queries can be sent to him on email: shirish50@yahoo.com)
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