2022:BHC-AS:10387 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.113 OF 2022 WITH INTERIM APPLICATION NO.1974 OF 2021 WITH INTERIM APPLICATION NO.479 OF 2021 Jayesh Tanna, Director of ITMC .. Appellant Developer Pvt. Ltd.

Versus Radha Arakkal & Ors. .. Respondents …

Mr.Karan Bhosale i/b Ms.Nidhi Chheda for the Appellant.

Mr.Aseem Naphade i/b Ms.Chaitra Rao for the Respondents.

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CORAM: BHARATI DANGRE, J.

DATED : 02nd MAY 2022 JUDGMENT:-

1. The present appeal, fled under Section 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 dated 4^th November, 2020 passed by the Appellate Tribunal suffers from perversity/illegality on account of the disregarding and not dealing with the argument advanced on Section 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 dated 4^th November, 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 Section 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 Section 31 of the RERA, seeking a direction against respondent No.1-M/s. International Trading & Manufacturing Company (appellant before this Court) to return the entire consideration paid by them alongwith interest, including compensation in terms of Section 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/- (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/- i.e. 74% of the total price of the fat, commensurating with t