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2020 DIGILAW 324 (UTT)

Penta Realtor v. B. N. Singh

2020-09-02

SHARAD KUMAR SHARMA

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JUDGMENT Sharad Kumar Sharma, J. - This matter is heard through video conferencing. 2. Heard Shri Rajat Mittal, Advocate for the petitioner and Shri Nikhil Singhal, Advocate for the respondent. 3. The respondent on 07.02.2019 had filed a complaint before the Chairperson, Real Estate Regulatory Authority, Dehradun therein praying for grant of penalty and interest in respect of the premises, which has been ascertained, in accordance with the description given therein and also for the remittance of the interest, as prayed in the said application. The said complaint preferred on 07.02.2019; had been allowed and consequent thereto, the petitioner approached the Appellate Tribunal availing his remedy under Section 43 of the Real Estate (Regulation and Development) Act, 2016. In accordance to the proviso contained to subSection 5 of Section 43 of the Act, it contemplates a pre condition that prior to the entertainment of an appeal which is before the Appellate Tribunal, the appellant has to deposit at least 30% of the amount of penalty, which has been imposed by the Regulatory Authority. In furtherance thereto when the petitioner approached the Appellate Tribunal by filing an appeal, the Appellate Tribunal has passed by the impugned order dated 09.07.2020 which is under challenge in the present petition thereby directing the petitioner appellant i.e. developer to deposit a sum of Rs. 16.12 lakh, which is equivalent to the 50% of the interest levied by the impugned order under challenge before the Appellate Tribunal determined at the rate of annual interest of 9.55 on Rs. 150 Lakh for the period from April, 2018 to July, 2020. 4. Learned counsel for the respondent supports the impugned order and contends that since it is an appeal, preferred under Section 43 of the Act of 2016 and pre-condition of the proviso to sub section 5 is imperative and is mandatory for the purpose of entertaining the appeal preferred by the petitioner herein before the Real Estate Appellate Tribunal, no apparent error, as such could be said to have been committed by the Tribunal by directing to the petitioner / appellant to deposit the amount, as it is well within the frame work of law. 5. 5. On the contrary, learned counsel for the petitioner would submit that the sole controversy would revolve around as to in what manner the alleged possession certificate dated 18.12.2017, has been issued vis- -vis its comparative reading with the registered agreement for sale dated 18.12.2017, pertaining to the aspect with regard to handing over of the possession of the disputed property is concerned that is to be determined. What he wants to submit is that in accordance with Clause I of the agreement for sale dated 18.12.2017, in fact the possession of the shops, which was agreed to be sold would be remitted to the respondent complainant on or before 10.06.2021. He further submits that in accordance with Clause 6, the actual physical possession, as per the said agreement which was agreed to be sold would be handed over on the execution of the sale deed. Relevant clauses are quoted here under:- "1. That in pursuance of the said agreement and in consideration of Rs. 2,10,000,00 (Two Crore Ten Lakh only) against which the second party has paid a sum of Rs. 1,50,00,000/- (One Crore Fifty Lakh) to the first party in the following manner: Rs. 15,00,000/- vide cheque no. 016664 dated 11.12.2017, Yes Bank, Rajpur Road, Dehradun. Rs. 5,00,000/- vide cheque no. 508858 dated 11.12.2017, Yes Bank, Rajpur Road, Dehradun. Rs. 25,00,000/- vide cheque no. 143688 dated 11.12.2017, Yes Bank, Rajpur Road, Dehradun. Rs. 35,00,000/- vide cheque no. 096999 dated 11.12.2017, Yes Bank, Rajpur Road, Dehradun. Rs. 30,00,000/- vide cheque no. 900599 dated 11.12.2017, Yes Bank, Rajpur Road, Dehradun. Rs. 40,00,000/- vide cheque no. 798766 dated 11.12.2017, Yes Bank, Rajpur Road, Dehradun. and the balance sale consideration Rs. 60,00,000/- (Sixty Lakh only) will be paid by the second party to the first party at the time of sale deed within 3 year 6 month i.e. on or before 10.06.2021." 6. The factum of execution of the sale deed and handing over of possession is yet to be reached. As the agreed, date for handing over possession and execution of the sale deed, as per terms of the registered agreement for sale happens to be 10.06.2021, which is yet to arrive. Hence, the petitioner contends that the very basis of complaint is prematured. 7. As the agreed, date for handing over possession and execution of the sale deed, as per terms of the registered agreement for sale happens to be 10.06.2021, which is yet to arrive. Hence, the petitioner contends that the very basis of complaint is prematured. 7. On the contrary, counsel for the respondent makes a reference to possession certificate (Annexure 2 to the petition) wherein though it is yet again makes a reference to the fact of handing over of the possession and execution of the registered sale deed but in the subsequent paragraph of the possession letter yet again makes a reference that if first party has got the vacant possession of the said three shops from the second party and the second party has taken vacant possession of the said property. It is this part which is sought to be extracted by the respondent to contend that he was entitled for the penalty and interest, as they have sought for in the complaint filed before the Authority i.e. Chairman, RERA, Dehradun by them. 8. Tentatively as far as the submission of the complaint by the respondent is concerned, at this stage, and in the light of argument, which has been extended by the counsel for the parties, I am of the considered view that possession letter which has been issued (i.e. Annexure 2) cannot be precedence over the registered agreement for sale. Because the actual accrual of right in relation to fixed assets which has been agreed to be sold would accrue only when the sale deed is executed in terms of the agreement for sale i.e. on the date fixed, as per agreement i.e. on 10.06.2021. Any complaint in relation to alleged default committed in the light of provision contained in the Act would only accrue after the actual inaction is caused by the petitioner after 10.06.2021 and not before it. In that eventuality, this Court is of the prima facie view that the complaint preferred by the respondent is premature and at least, this aspect ought to have been considered by the Appellate Tribunal regarding prima facie genuineness of complaint even before attracting the proviso to subSection 5 of Section 43 of the Act directing the petitioner to deposit the amount of 30%, as contained in the impugned order 09.07.2020. In that view of the matter the effect and operation of impugned order dated 09.07.2020 shall be kept in abeyance till the next date of listing. Since the respondents have already filed their counter affidavit, petitioner may file his rejoinder affidavit within a period of three weeks from today. 9. List after three weeks. 10. Learned counsel for the petitioner may file his affidavit before the competent authority regarding stay order passed by this Court, if he so desires and if emergent even before the receipt of the certified copy of this order. 11. Learned counsel for the respondent has rightly apprehended that grant of interim order today by this Court may be construed by the Appellate Tribunal, as if, the proceedings of the appeal has been kept in abeyance. It is not so. It is made clear that the proceedings before the Appellate Tribunal may continue in accordance with law and the same would be decided at its own merit irrespective of the observations which have been made by me in today's order.