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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

Developer Pvt. Ltd.

..

Appellant

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.

...

CORAM: BHARATI DANGRE, J.

DATED : 02^nd 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

M.M.Salgaonkar

SALGAONKAR

M M

Digitally signed by

SALGAONKAR M

M

Date: 2022.05.07

16:20:10 +0530

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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

M.M.Salgaonkar

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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

M.M.Salgaonkar