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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Bharati Dangre, J.
Jayesh Tanna, Director of ITMC Developer Pvt. Ltd – Appellant
Versus
Radha Arakkal – Respondent
Second Appeal No. 113 of 2022, Interim Application No. 1974 of 2021, .479 of 2021
Decided On : 02-05-2022
Karan Bhosale, Advocate, Nidhi Chheda, Advocate, Aseem Naphade, Advocate, Chaitra Rao, Advocate
The terms of a written agreement cannot be altered by an oral agreement, and the rights of the allottee to claim a refund under Sec. 18 of RERA are upheld.
Headnote:
Real Estate - Real Estate (Regulation and Development) Act, 2016 - Sec. 58 - The court discussed the implications of Sec. 18 of RERA, which permits the allottee to claim a refund of the amount along with interest if the promoter fails to deliver possession on the agreed date. The court also considered the applicability of Sec. 92 of the Indian Evidence Act in determining whether the terms of a written agreement can be altered by an oral agreement.
Fact of the Case:
The complainants sought a refund under Sec. 18 of RERA for non-delivery of possession of a property as per the agreement. The regulatory authority directed the respondents to refund the amount with interest, which was upheld by the Appellate Tribunal. The appellant argued that the complaint was premature as the project completion date was extended, while the respondents relied on the terms of the registered agreement.
Finding of the Court:
The court found that the agreement's terms bound the parties, and the oral arrangement could not alter the written document. The court upheld the orders of MahaRERA and the Appellate Authority, dismissing the appeal.
Issues: Prematurity of the complaint, applicability of oral agreement to alter written terms, and entitlement to refund under Sec. 18 of RERA.
Ratio Decidendi: The terms of a written agreement cannot be altered by an oral agreement, and the rights of the allottee to claim a refund under Sec. 18 of RERA are upheld.
Final Decision: The appeal was dismissed, and pending interim applications were disposed of.
JUDGMENT
1. The present appeal, fled under Sec. 58 of the Real Estate (Regulation and Development) Act, 2016 (for short, "the RERA"), deserves admission on the following substantial questions of law :-
"1. Whether the Impugned Order-2 dtd. 4/11/2020 passed by the Appellate Tribunal suffers from perversity/illegality on account of the disregarding and not dealing with the argument advanced on Sec. 62 of the Indian Contract Act, 1872 alongwith relevant case laws?
2. Whether the Appellate Tribunal was correct to hold in the Impugned Order-2 that the mere presence of Allottees will not amount to consent for extension of date of possession despite of the fact that the Respondent nos.1 and 2 themselves in their original complaint before the RERA authority relied upon and did not dispute the concerned Minutes of the meetings and correspondence evidencing extension of the date of possession ?
3. Whether the Impugned Order-2 dtd. 4/11/2020 passed by the Appellate Tribunal suffers from perversity/illegality in view of the fact that it wrongly holds that the learned Member of the RERA tribunal has considered all relevant aspects of the matter and dealt with submissions of both sides correctly and properly concluding that the Appellant herein failed to handover possession as per agreed date and therefore Respondent nos.1 and 2 are entitled to a refund under Sec. 18 of RERA?"
2. Admit.
3. Heard learned counsel Mr.Karan Bhosale i/b Ms.Nidhi Chheda for the appellant and learned counsel Mr.Aseem Naphade i/b Ms.Chaitra Rao for respondent Nos.1 and 2.
4. Since the parties expressed consensus to argue the appeal fnally, the compilation of documents being placed on record, they have advanced arguments towards hearing of the appeal in the wake of the substantial questions of law formulated above.
5. Respondent Nos.l and 2 are the complainants, who fled the complaint under Sec. 31 of the RERA, seeking a direction against respondent No.1-M/s. International Trading and Manufacturing Company (appellant before this Court) to return the entire consideration paid by them alongwith interest, including compensation in terms of Sec. 18 of the RERA, at the rate which shall be the highest Marginal Cost of Lending plus 2% from the date of payment till it's realization. Refund of the amount paid towards registration and stamp duty, was also prayed for.
6. The above relief was sought, by inviting attention of the regulatory authority to the default committed by the respondent-developer, who had foated a project under the name and style "Sai Sapphire" constructed on land bearing CTS No.4A/1A/2A, part at Kurla, Vikhroli, Mumbai. The complainants narrated that they had selected a fat bearing No.203, admeasuring 1350 sq.ft. on the second foor of the said project for total consideration of Rs.1,50,12,500.00 (Rupees One Crore Fifty Lakhs Twelve Thousand Five Hundred only). The negotiations and the transactions were alleged to have been completed through "Indiabulls Distribution Services Ltd.' and respondent No.1, on receiving the frst payment on 02/08/2014, assured the complainants to deliver the possession of the fat within a period of 15 months. A registered agreement for sale was executed on 20/01/2015 and the complainants specifcally averred that they were regular in making the payment, which was due towards the consideration amount and the total consideration paid by the complainants was set out to be Rs.1,11,09,250.00 i.e. 74% of the total price of the fat, commensurating with the construction of 12 slabs. Apart from this, a sum of Rs.7,80,800.00 was paid towards registration and stamp duty and, further, sum of Rs.7,06,786.00 was paid alongwith service tax and value added tax.
7. The grievance of the complainants before the authority was about the delivery of possession of the fat in terms of clause 10 of the agreement for sale, which specifed the date to be July, 2015. Since, the project did not progress and remained standstill from June 2014, the grievance was
