2022 (5) TMI 1653

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.... 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 4th 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 finally, 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.....

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....for sale. Reposing trust in the respondents, the complainants waited for completion of the project, but when even after 15 months, the project remained incomplete and the last assured date of possession, being December 2016 also expired in February, 2017, the complainants sought withdrawal from the project and communicated this to respondent No.1, seeking refund of the amount. With no response from respondent No.1 and noticing that the project came to be registered with Maha RERA website by respondent No.1 in 2017, declaring the proposed/revised date of completion as 31/03/2019, the complainants lodged the complaint, since they were not ready to wait any further and sought refund of the amount. The complaint was entertained by Maha RERA, Mumbai and by order dated 11/04/2018, the following direction was issued to the respondents :- "1. Respondents shall refund the amount mentioned in pushes marked Exh. 'A'. with simple interest at the rate of 10.05% per annum from the date of receipt or payment to the Government as the case may be, till they are refunded Exh. 'A' shall form the part of this order. 2. The respondents shall pay the complainants Rs. 20,000/- towards t....

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....other fat purchasers whenever builder conveyed such meetings. Mere presence of Allottees will not amount to consent for extension of date of possession. Similarly, minutes of meetings are not signed by Allottees and therefore are not binding on the Allottees. Payment made by Allottees even after the date of possession was over cannot be accepted as piece of evidence to show that Allottees had given consent for extension of date of possession. It is true that there is absolutely nothing on record to show that Allottees had voluntarily and unequivocally consented for extension of the date of possession. There is no substantial evidence to show that date of possession is extended mutually by Promoter and Allottees. Minutes of the meetings cannot override the terms and conditions of the agreement for sale." 10. Recording that, right continue in the allottee from withdrawing the project and claiming refund of amount with interest in terms of Section 18 of the RERA, the order passed by the Member & Adjudicating Officer, Maha RERA, Mumbai, was found to be rightly passed and no indulgence was granted to the promoter, while dismissing the appeal. Being aggrieved by the said decision, ....

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....idence of oral agreement.-... Proviso (1) .... Proviso (2) ... Proviso (3) ... Proviso (4).- The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents." The aforesaid section thus contemplate that in order to establish the existence of any subsequent oral agreement, which has the effect of rescinding or modifying the original contract/agreement or disposition of property, proof will have to be adduced, necessarily by the one who assert it. Where the agreement between the parties is a written agreement, the parties are bound by it's terms and conditions. Once the contract is reduced into writing, by operation of Section 91 of the Indian Evidence Act, it not open for any of the parties to prove the terms of the contract with reference to some oral or documentary evidence, to find out the intention of the parties. Under Section 92 of the Indian....

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....date of July 2015 was not adhered to. Three years down the line, since there was no compliance, a notice was forwarded to the builder, seeking a refund. The learned counsel Mr. Bhosale has vehemently submitted that when one turns to the notice, the reason projected is, need of money since the daughters of the complainants wanted to go abroad for education and he would submit that the reason for withdrawal of backing out of the project was not it's non-completion, by itself. I do not consider this to be ground worth consideration or dispute the claim of the complainants that, they wanted to walk out of the project because it was getting delayed. Merely asking about update on the project from the builder/developer will not denude the complainants of their right to claim refund in terms of Section 18, which permitted such refund if the promoter fails to complete or is unable to give possession of the fat in accordance with the terms of the agreement for sale before the duly specified date therein. Sub-section (3) of Section 18 cast a duty on the promoter to pay compensation to the allottees in case of his failure to discharge the obligation imposed on him under the Act or the ru....

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.... The document which is reduced into writing can only be altered, varied, added, subtracted, rescinded by executing a subsequent document in the like manner i.e. in writing and merely an oral agreement will not have the effect of changing/ altering the original terms and conditions of the agreement, which is reduced into writing. If a party has entered into an agreement, which is reduced in writing, the parties shall be permitted to modify its terms and conditions or substitute the same, by executing another contract/agreement reduced into writing. Where under a law, a contract or disposition is required to be writing and the same has been reduced in writing, it's terms cannot be modified, altered or substituted by oral contract or disposition and no parol evidence will be admissible to substantiate such a oral contract or disposition. The Hon'ble Supreme Court in the case of S. Saktivel (supra), has summarised the legal position in the following words :- "6. In sum and substance what proviso (4) to Section 92 provides is that where a contract or disposition, not required by law to be in writing, has been arrived at orally then subsequent oral agreement modifying or resc....