2022 (5) TMI 1653 - HC - Indian Laws

Disregarding and not dealing with the argument advanced on Section 62 of the Indian Contract Act, 1872 - mere presence of Allottees will 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, or not - learned Member of the RERA tribunal has considered all relevant aspects of the matter 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. HELD THAT - The defence of the promoter that the complainants have attended the subsequent meetings and thereby they have accorded their implied consent is of no consequence, since not a single document has been brought on record, which would establish that the complainants have consented to the extension of the time-line to 17/09/2016 and, subsequently, as indicated in the meeting dated 17/09/2016, by 14 to 15 months. The minutes of the said meeting placed on record with regard to the presence of the complainant-Mrs. Radha Arakkal and the decision reflected in minute No.6, resolving that the construction work of Sai Sapphire shall start in the first week of December 2016 and endeavour shall be made to complete Sai Sapphire between 14 to 15 months, do not in any manner indicate the consent of Mrs. Radha Arakkal, particularly when a right is conferred upon the investor/purchaser to seek a refund on account of the time-line for delivery of possession, being not adhered to. Pertinent to note that even as on date, as per the learned counsel for respondent Nos.1 and 2, the project is not complete and the fat is not available for delivery of possession to the complainants/respondents. The breach of the condition in the agreement is thus apparent and merely on the ground that an oral arrangement was worked out with consent of one of the complainants to extend the period of completion of project, resulting in depriving the right vested in the complainants under Section 18 of the RERA, cannot be argued. The document which is reduced into writing can only be altered, varied, added, subtracted, rescinded by executing a subsequent document in the like manner i.e. in writing and merely an oral agreement will not have the effect of changing/ altering the original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 - 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 agreement entered into between the parties, which has been reduced into writing cannot be substituted or stand novated by a subsequent oral understanding, the substantial questions of law formulated above, are answered in the negative. By upholding the impugned orders passed by Maha RERA and the Appellate Authority, the appeal is dismissed.

Summary

Issues Involved:
1. Perversity/illegality of the Appellate Tribunal's decision on Section 62 of the Indian Contract Act, 1872.
2. Validity of the Appellate Tribunal's decision regarding consent for the extension of the possession date.
3. Legitimacy of the Appellate Tribunal's conclusion on the failure to hand over possession and entitlement to a refund under Section 18 of RERA.

Detailed Analysis:

Issue 1: Perversity/Illegality on Section 62 of the Indian Contract Act, 1872
The appellant challenged the Appellate Tribunal's decision, arguing that it disregarded and did not address the argument based on Section 62 of the Indian Contract Act, 1872, along with relevant case laws. The Tribunal's decision was alleged to suffer from perversity and illegality due to this oversight.

Issue 2: Consent for Extension of Possession Date
The Tribunal held that the mere presence of the allottees at meetings did not amount to consent for the extension of the possession date. The complainants had attended meetings but did not sign the minutes, indicating no consent for the extension. The Tribunal stated, "There is no substantial and credible evidence to show that Allottees had consented for extension of date of possession." It emphasized that the minutes of the meetings could not override the terms and conditions of the agreement for sale.

Issue 3: Failure to Hand Over Possession and Entitlement to Refund
The Tribunal found that the promoter failed to deliver possession of the flats by the agreed date, making the complainants entitled to a refund under Section 18 of RERA. The Tribunal noted that the respondents did not dispute the delay and found the explanation for the delay unjustified. The Tribunal upheld the order for refund, stating, "The respondents have not disputed that they have not handed over possession of the flats on the agreed date."

Conclusion:
The High Court upheld the Tribunal's decisions, emphasizing that the terms of a written agreement cannot be altered by an oral agreement. The court referred to Section 92 of the Indian Evidence Act, which excludes evidence of oral agreements that modify written contracts. The court stated, "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." The appeal was dismissed, affirming the complainants' right to a refund due to the promoter's failure to deliver possession as per the agreement.