Status as on- 05/02/2020
MAHARERA in the matter of Sunil Wadhwani (“Complainant“) v. Pashmina Realty Private Limited (“Respondent“) in Complaint No. CC006000000078745 has held that complaint is non-maintainable and the complainant cannot claim refund u/s 18 due to applicability of the principle of novation of contract and Section 115 of Evidence Act.
FACTS IN BRIEF
- The Respondent launched the Pashmina Lotus project wherein the complainant booked the flat no. C-701 having a carpet area of 1,436 sq. ft. consisting of four-bedrooms for Rs. 2,76,00,000/-
- However, the plans had been revised and a two-bedroom and three-bedroom flats were proposed to be constructed with the consent of 2/3rd of allottees of the project including the complainant.
- Thereafter, the complainant gave express consent for the change in plan and executed the consent terms on 27.07.2017 and in place of one flat bearing no.701, he agreed to take two flats bearing no. A-1001 and B-1104 in the new building/project Lake Riviera.
- On 18.03.2019 the respondents have informed the complainant that they are ready to execute and register agreement for sale of flat no. A-1001 and B-1104.
ISSUE IN QUESTION
Whether the complainant can deny/withdraw his consent given for the re-planning of the building?
- The purchaser who has given the consent for re-planning of the building. The consent under Section 14(2) of RERA of 2/3rd allottees for re-planning has been given to the promoters and therefore promoters revised the plans. The Complainant was ready to execute the agreement for sale revised by them and gave consent to accept the substitute two flats each consisting of two-bedrooms instead of flat no. C-701 consisting of four-bedrooms and was ready to pay Rs. 20,00,000/- for additional carpet area. It is established that on the consent of the complainant the respondents have acted upon their disadvantage and hence the complainant is stopped under Section 115 of Evidence Act from withdrawing his consent and his status as allottee of the new flats. It was observed that once the complainant has given the aforesaid consent he cannot withdraw it as respondents have acted upon the same.
- Section 62 of the Contract Act which is the principle of Novation was applied. Section 62 implies that there is a contract in existence some new contract has been substituted for it resulting in the discharge of the old contract.
- It was held there is a novation of the contract and only a formal contract in writing is to be executed and the consideration paid by the complainant in respect of flat no. C-701 is to be adjusted against the new flats otherwise the terms and conditions are similar. Therefore, a claim for withdrawal by the complainant is not maintainable and is dismissed.
- It is directed to the parties to enter and register the agreement for sale of new flats in consonance with terms and the conditions of the consent letter and the previous agreement within a period of next one month.
Disclaimer– The above article is based on the personal interpretation of related laws, which may differ from person to person. The readers are expected to take expert opinion before relying on this article. For more clarification, the readers can be expected at email@example.com or firstname.lastname@example.org