Case Note & Summary
The present appeal is filed under Section 58 of the Real Estate (Regulation and Development) Act, 2016 (RERA) by Jayesh Tanna, Director of ITMC Developer Pvt. Ltd., against Radha Arakkal and others. The dispute arises from an order of the Appellate Tribunal dated 4th November 2020, which upheld the RERA authority's decision directing refund to the allottees under Section 18 RERA for delay in possession. The appellant contends that the allottees had consented to extension of possession date through meetings and correspondence, and the Tribunal failed to consider the argument under Section 62 of the Indian Contract Act, 1872 regarding novation of contract. The High Court admitted the appeal on three substantial questions of law: (1) whether the Impugned Order suffers from perversity for disregarding the argument under Section 62 of the Indian Contract Act; (2) whether the Tribunal erred in holding that mere presence of allottees does not amount to consent for extension despite the allottees themselves relying on minutes of meetings in their complaint; and (3) whether the Tribunal wrongly held that the RERA Member considered all relevant aspects. The parties consented to final hearing, and the court heard arguments from both sides. The judgment is dated 2nd May 2022, and the appeal is admitted for final disposal.
Headnote
A) Real Estate Law - Refund under Section 18 RERA - Consent for Extension of Possession Date - Section 18, Real Estate (Regulation and Development) Act, 2016 - The appeal raises the question whether the allottees' presence in meetings and reliance on minutes of meetings in their complaint amounts to consent for extension of possession date, thereby affecting their right to refund under Section 18 RERA. The High Court admitted the appeal on substantial questions of law including whether the Appellate Tribunal erred in disregarding the argument under Section 62 of the Indian Contract Act, 1872. (Paras 1-3)
B) Contract Law - Novation of Contract - Section 62, Indian Contract Act, 1872 - The appellant argued that the allottees consented to extension of possession date, which amounts to novation of the original agreement, and the Appellate Tribunal failed to consider this argument. The High Court framed this as a substantial question of law. (Para 1)
C) Real Estate Law - Appellate Tribunal's Order - Perversity - Section 58, Real Estate (Regulation and Development) Act, 2016 - The appellant contended that the Impugned Order-2 dated 4th November 2020 passed by the Appellate Tribunal suffers from perversity/illegality for wrongly holding that the RERA Member considered all relevant aspects and correctly concluded that the appellant failed to handover possession as per agreed date, entitling respondents to refund under Section 18 RERA. (Para 1)
Issue of Consideration
Whether the Appellate Tribunal under RERA erred in holding that mere presence of allottees does not amount to consent for extension of date of possession, and whether the Tribunal failed to consider the argument under Section 62 of the Indian Contract Act, 1872 regarding novation of contract.
Final Decision
The appeal is admitted on the substantial questions of law framed. The parties consented to final hearing, and the court heard arguments. The judgment is dated 2nd May 2022, and the appeal is pending final disposal.
Law Points
- Section 18 RERA
- Section 62 Indian Contract Act
- 1872
- consent for extension of possession date
- substantial question of law
Case Details
2022 LawText (BOM) (05) 15
SECOND APPEAL NO.113 OF 2022 WITH INTERIM APPLICATION NO.1974 OF 2021 WITH INTERIM APPLICATION NO.479 OF 2021
Mr.Karan Bhosale i/b Ms.Nidhi Chheda for the Appellant, Mr.Aseem Naphade i/b Ms.Chaitra Rao for the Respondents
Jayesh Tanna, Director of ITMC Developer Pvt. Ltd.
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Nature of Litigation
Second appeal under Section 58 of the Real Estate (Regulation and Development) Act, 2016 against an order of the Appellate Tribunal directing refund to allottees under Section 18 RERA for delay in possession.
Remedy Sought
The appellant (builder) seeks to set aside the Impugned Order-2 dated 4th November 2020 passed by the Appellate Tribunal, which upheld the RERA authority's order for refund to the allottees.
Filing Reason
The appellant contends that the allottees had consented to extension of possession date, and the Appellate Tribunal failed to consider the argument under Section 62 of the Indian Contract Act, 1872 regarding novation of contract.
Previous Decisions
The RERA authority directed refund under Section 18 RERA, which was upheld by the Appellate Tribunal vide Impugned Order-2 dated 4th November 2020.
Issues
Whether the Impugned Order-2 dated 4th November 2020 passed by the Appellate Tribunal suffers from perversity/illegality on account of disregarding the argument advanced on Section 62 of the Indian Contract Act, 1872?
Whether the Appellate Tribunal was correct to hold that mere presence of Allottees will not amount to consent for extension of date of possession despite the fact that the respondents themselves in their original complaint relied upon and did not dispute the concerned Minutes of the meetings and correspondence evidencing extension of the date of possession?
Whether the Impugned Order-2 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 failed to handover possession as per agreed date and therefore respondents are entitled to a refund under Section 18 of RERA?
Submissions/Arguments
Mr.Karan Bhosale for the appellant argued that the allottees consented to extension of possession date through meetings and correspondence, and the Appellate Tribunal failed to consider the argument under Section 62 of the Indian Contract Act, 1872 regarding novation of contract.
Mr.Aseem Naphade for the respondents argued in support of the Impugned Order, contending that the allottees did not consent to extension and are entitled to refund under Section 18 RERA.
Ratio Decidendi
The court admitted the appeal on substantial questions of law, indicating that the issues raised regarding consent for extension of possession date and application of Section 62 of the Indian Contract Act, 1872 require determination. The final ratio will be decided after full hearing.
Judgment Excerpts
The present appeal, filed 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 :-
Whether the Impugned Order-2 dated 4th 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?
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 ?
Procedural History
The RERA authority directed refund under Section 18 RERA. The appellant appealed to the Appellate Tribunal, which dismissed the appeal vide Impugned Order-2 dated 4th November 2020. The appellant then filed the present second appeal under Section 58 RERA before the High Court, which admitted the appeal on 2nd May 2022.
Acts & Sections
- Real Estate (Regulation and Development) Act, 2016: Section 18, Section 58
- Indian Contract Act, 1872: Section 62
