Flat buyers can't be left without legal remedy: Assam Real Estate Appellate Tribunal

STAFF REPORTER

GUWAHATI: The terms and conditions of a written contract cannot be modified by any oral contract and no evidence can be allowed to substantiate the alleged oral arrangement. Moreover, an aggrieved buyer of a flat/apartment cannot be left without legal remedy merely on ground of limitation. This was observed by the Assam Real Estate Appellate Tribunal (REAT) in a judgement delivered on Monday while deciding an appeal filed by a builder.

The order was passed by Justice (Retd) Manojit Bhuyan, Chairperson of the Assam REAT, and Onkar Kedia, Member, Assam REAT.

The matter pertained to a buyer who had entered into a written and registered agreement dated August 11, 2013 with the builder for purchase of a flat in the GNB Complex for a sum of Rs 15 lakh. The builder subsequently demanded over Rs 32 lakh for the flat, citing oral understanding with the buyer. The Assam REAT, in its judgement, rejected the contention of the builder by pointing out that if the terms of a registered instrument are to be altered, it can only be done by a subsequent registered instrument and not otherwise.

The Assam REAT also rejected the contention of the appellants that the complaint filed by the buyer for performance of the contract was not maintainable being barred by the Limitation Act, according to which the period of limitation to institute a suit for specific performance of a contract is three years from the date fixed for its performance. As per the agreement dated August 11, 2013, an obligation had been cast upon the builder to complete the multi-storied building within a period of 36 months from the date of execution of the agreement, meaning thereby that the date fixed for completion was August 11, 2016. According to the appellants, because of the mere fact that the complaint was filed on October 20, 2020, there was a bar to a legal claim. To this, the Tribunal pointed out that the Real Estate (Regulation and Development) Act, 2016 was enacted in the interests of effective consumer protection. Section 31 of the Act deals with filing of complaints for any violation or contravention of the provisions of the Act or the rules and regulations made thereunder against any promoter, allottee or real estate agent. Violation or contravention, inter alia, includes failure to execute conveyance deed in favour of the allottee by the promoter within the period prescribed as well as failure of the promoter to give possession of the apartment, plot or building in accordance with the terms of the Agreement for Sale. The Real Estate (Regulation and Development) Act, 2016 creates bar of jurisdiction of civil court to entertain any suit or proceeding in respect of any matter which the Regulatory Authority or the Adjudicating Officer or the Appellate Tribunal is empowered to determine. Also, under the Act, it is provided that the provisions of the Act shall have effect notwithstanding anything contained in any other law in force. On these grounds, the Tribunal held that an aggrieved person, seeking to file complaint under section 31 of the Act, cannot be left without legal remedy merely on ground of limitation. There is no direct provision under the Act laying down any period of limitation for filing complaint under Section 31.

On the contention of the appellants that the respondent/complainant sought relief only for delivery of possession of the two flats and not for transfer of title by means of execution of Sale Deed, the Tribunal held that proceedings under the Real Estate (Regulation and Development) Act, 2016 are not to be conducted in a hyper-technical manner by following a rigid procedure, but in a manner ensuring that justice is secured.

Dismissing the appeal, the Tribunal directed the builder to execute the Conveyance/Sale Deed and to give possession of the flat to the buyer within six weeks at the total consideration of Rs 15 lakh.

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