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TMI Blog2022 (5) TMI 1653X X X X Extracts X X X X X X X X Extracts X X X X ..... quence, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 5. Respondent Nos. 1 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 along with 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent 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 the cost of the complaint. 3. The charge of the aforesaid amount shall be on the fat booked by the complainants till its repayment. 4. Complainants shall execute the deed of cancellation of the agreement for sale, at respondents cost on satisfaction of their claim. 8. Formulating the points for consideration as to whether the respondents had failed to deliver the possession of the fats on the agreed date and whether the complainants are entitled to get refund of the amount, the first forum, referred to Section 18 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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, the present appeal is fled. 11. The learned counsel for the appellant, Mr. Bhosale would submit that the complaint fled by the complainants was premature, since on registration of the project with Maha RERA, the appellant had notified the date of completion as 31/03/2019 and the complaint was fled prior to this date i.e. December 2017. He would submit that the agreement entered into with the complainants stood renewed/novated, as from time to time, the time for completion of the project was extended in the meetings held by the promoter, which was duly attended by Mrs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fying 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 Evidence Act, where a written instrument contains the terms agreed between the parties, then it is not open to the parties to lead any oral evidence to ascertain the terms of the contract and it is only when the written contract itself does not contain the whole of the agreement or if there is any ambiguity, then oral evidence can be permitted to be adduced, to prove the other conditions, provided it is not inconsistent with the written contract. 13. As far as the present case is concerned, the agreement was entered into between the parties and the parties are, therefore, bound by it s terms and conditions. When the agreement for sale entered into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 rules and regulations made thereunder or in accordance with the terms and conditions of the agreement for sale. Sub-section (4) of Section 19 confer a right upon an allottee to the following effect:- 19. Rights and duties of allottees : (1) (2) (3) (4) The allottee shall be entitled to claim the refund of amount paid along with interest at such rate as may be prescribed and compensation in the manner as provided under this Act, from the promoter, if the promoter fails to comply or is unable to give possession of the apartment, plot or building, as the case may be, in accordance with the terms of agreement for sale or due to discontinuance of his business as a developer on acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 rescinding the said contract or disposition can be substantiated by parol evidence and such evidence is admissible. Thus if a party has entered into a contract which is not required to be reduced in writing but such a contract has been reduced in writing, or it is oral, in such situations it is always open to the parties to the contract to modify its terms and even substitute by a new oral contract and it can be substantiated by parol evidence. In such kind of cases the oral evidence can be let in to prove that the earlier contract or agreement has been modified or substituted by a new oral agreement. Where under law a contract or disposition is required to be in writing and the same has been reduced to writing, its terms cannot be modified or altered or substi ..... 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