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2023 DIGILAW 68 (PAT)

Chandra Prabha Lal v. Hem Developers Pvt. Ltd.

2023-01-12

KHATIM REZA

body2023
ORDER The appellant has preferred this appeal under Section 58(1) of the Real Estate (Regulation and Development) Act, (‘the Act’ in short) 2016 under Civil Appellate jurisdiction, which has been registered a Second Appeal No. 132 of 2021 (Smt. Chandra Prabha Lal vs. M/s Hem Developers Pvt. Ltd) under Civil Appellate jurisdiction. 2. The appellant has assailed an order dated 22.01.2020 passed by the Real Estate Appellate Tribunal, Bihar (‘the Tribunal’ in short), in the present appeal. 3. The office has placed this matter on the point of maintainability with the following office notes: – “(i) Miscellaneous Appeal under Section 58 of the RERA Act would be a proper forum and is to be incorporated in the software for filing an appeal against the aforesaid impugned order. Or, (ii) Special Category of Appeal i.e. RERA Appeal under Section 58 of the aforesaid RERA Act is to be incorporated in the software against the aforesaid impugned order Or, (iii) Any other order the Hon’ble Court may deem fit and proper.” 4. Two short questions which require consideration in view of the aforementioned office notes are: – (i) Whether a second appeal under Section 58(1) of the Act would lie against an order passed by the Tribunal or such appeal would be in the nature of miscellaneous appeal? (ii) What should be the court fee payable for filing an appeal before this Court under Section 58(1) of the Act? 5. Let us take up the issues by adverting to Section 58 of the Act, which reads as under: – “Appeal to High Court (1) Any person aggrieved by any decision or order of the Appellate Tribunal, may, file an appeal to the High Court, within a period of sixty days from the date of communication of the decision or order of the Appellate Tribunal, to him, on any one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908 (5 of 1908): Provided that the High Court may entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. Explanation. – The expression “High Court” means the High Court of a State or Union territory where the real estate project is situated. Explanation. – The expression “High Court” means the High Court of a State or Union territory where the real estate project is situated. (2) No appeal shall lie against any decision or order made by the Appellate Tribunal with the consent of the parties. This clause relates to the appeal to High Court. Sub-clause (1) provides that any person aggrieved by any decision or order of the Appellate Tribunal, may, file an appeal to the High Court, within a period of ninety days from the date of communication of the decision or order of the Appellate Tribunal, to him, on anyone or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908. However, the High Court may, entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. Sub-clause (2) provides that no appeal shall lie against any decision or order made by the Appellate Tribunal with the consent of the parties.” 6. It is manifest from a plain reading of the said Section 58 of the Act that it provides for an appeal, but it does not use the word ‘Second Appeal’ as used in Section 100 of the Civil Procedure Code. It only states that the appeal can be filed on any one or more of the grounds specified in Section 100 of the Civil Procedure Code. 7. Now, coming to Section 100 of the Civil Procedure Code, it reads as under: – “[100. Second appeal. – (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.]” 8. Section 100 of the Code of Civil Procedure provides that for an appeal to the High Court shall be against a decree passed in appeal by courts sub-ordinate to the High Court. It is necessary that Second Appeal can be preferred from a decree passed in appeal by a Sub-ordinate Court. 9. The decree has been defined in Section 2(2) of the Code of Civil Procedure which reads as under: – Section 2(2):-“(2) decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within the words and figures “Section 47 or” omitted by Act 104 of 1976 Section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation. – A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final; (3) “decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made;” 10. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final; (3) “decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made;” 10. The definition of a ‘decree’ has three essential conditions: – “(i) the adjudication must be in a suit; (ii) the suit must start with a plaint and end in a decree; and (iii) the adjudication must be formal and final by the court.” 11. Now, on examining the proceeding before RERA, it is apparent that proceeding is not in the nature of a suit culminating into a decree and therefore order of appellate tribunal of RERA is not a decree as per Section 2(2) of the Code of Civil Procedure. 12. It would be apposite to clarify the issue taking into consideration Section 57 of the Act. Section 57 of the Act, provides that every order of the Appellate Tribunal shall be executable by it as a decree of the civil court and for that purpose only the appellate tribunal will have all the power of the civil court. Section 57 of the Act reads as under: – “(1) Every order made by the Appellate Tribunal under this Act shall be executable by the Appellate Tribunal as a decree of civil court, and for this purpose, the Appellate Tribunal shall have all the powers of a civil court. (2) Notwithstanding anything contained in sub-section (1), the Appellate Tribunal may transmit any order made by it to a civil court having local jurisdiction and such civil court shall execute the order as if it were a decree made by the court.” 13. It is clear that the order of the Tribunal has been recognized to be a decree for the limited purpose of execution of order and not for other purposes including filing of an appeal against an order passed by it. It is thus clear that the order of the Tribunal is not a decree and, therefore, it cannot be a decree within the meaning of Section 2(2) of the Code of Civil Procedure. Hence, the order of the Appellate Tribunal cannot be construed to be a decree rather it remains an order simplicitor. 14. Next question for consideration is that whether ad valorem court or fixed court fixed court fee is chargeable on the valuation of appeal. Hence, the order of the Appellate Tribunal cannot be construed to be a decree rather it remains an order simplicitor. 14. Next question for consideration is that whether ad valorem court or fixed court fixed court fee is chargeable on the valuation of appeal. 15. The Court Fees Act, 1870 vide Section 4 of the Act specifically provides that no document of any kind which has been specified in Schedule I and Schedule II to the Act shall be filed or furnished in the High Court in any case unless the Court fees as chargeable is paid on it. 16. Section 4 of the Act is reproduced hereinbelow: – “4. Fees on documents filed etc., in High Courts, in their extraordinary or ordinary jurisdiction- No document of any of the kinds specified in the first or second schedule to this Act annexed, as chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by, any of the, said High Court in any case coming before such Court in the exercise of its extraordinary original civil jurisdiction or in the exercise of its extraordinary original criminal jurisdiction.” 17. The same question arose in Second Appeal Defective No. 341 of 2018 arising out of U.P. Real Estate Appellate Tribunal Authority before the Allahabad High Court in the case of M/s Supertech Ltd. vs. Subrat Sen decided on 01.10.2018 reported in AIR 2019 All 19 , which is held as under: – All documents filed before the High Court have to be charged with court fees as may be provided in Schedule I or II to the Act meaning thereby that the memo of appeal under the R.E.R.A. would therefore, be also governed by the said Act, if filed before the High Court. In Article 11 of Schedule II of the Act it has been provided that if a memorandum of appeal which is not against a decree or an order having a force of a decree, is presented to the High Court a fixed court fees of Rs.5/- only is payable. Article 11 of Schedule II covers all memorandum of appeals including those presented before High Court but excluding those arising from a decree or an order having the force of decree. The order of the Appellate Tribunal is not a decree otherwise than for a limited purpose of its execution by the Appellate Tribunal itself. Article 11 of Schedule II covers all memorandum of appeals including those presented before High Court but excluding those arising from a decree or an order having the force of decree. The order of the Appellate Tribunal is not a decree otherwise than for a limited purpose of its execution by the Appellate Tribunal itself. Therefore, the memorandum of appeal against the order of Appellate Tribunal would squarely fall under Article 11 of Schedule II to the Act. Since it has been provided under the aforesaid entry it would stand excluded from Article 1 of Schedule I of the Act. Thus, it would not be amenable to payment of ad-valorem court fees. In view of the aforesaid facts and circumstances, the objection of the learned counsel for the appellant that only a fixed court fees of Rs.5/- as prescribed under Article 11 of Schedule II of the Act is payable on the memorandum of appeal filed before the High Court under Section 58 of the R.E.R.A. is sustained and the order of the Taxing Officer dated 21.08.2018 and the report of the Stamp Reporter directing for payment of ad-valorem court fees in accordance with Article 1 of Schedule 1 to the Act are held to be incorrect.” 18. In the case of Trehan Apna Ghar Buildwell Private Limited through its Director vs. Munish Ranjan Sahay as decided by Rajsthan High Court in S.B. Civil Second Appeal No. 72/2022, High Court of Judicature for Rajsthan has taken up the same issue wherein, the Hon’ble Court has accepted the principle as applied by Hon’ble Allahabad High Court in M/s Supertech Ltd. vs. Subrat Sen reported in AIR 2019 All 19 and came to the conclusion that since in the High Court of Rajsthan, as per the High Court Rules, the category “Civil Miscellaneous Appeal” is already available to register the appeals, the court felt it appropriate that instead of creating a separate category of Civil Miscellaneous Appeals under the Act, appeals arising under Section 58 of the Act be registered in the category of broader head “Civil Miscellaneous Appeal”. 19. 19. However, as far as the matter of payment of Court fees on appeal under Section 58 of the Act, 2016, is concerned the Rajasthan High Court in the aforesaid case has categorically noted that under the provisions of the Act or under the RERA Rules, there is no specific provision prescribing quantum of payment of court fees for filing the appeal before the High Court under Section 58 of the Act, 2016. The Rajasthan High Court had deviated from the observation of the Allahabad High Court in case of M/s Supertech Ltd. vs. Subrat Sen ( AIR 2019 All 19 ) that provision of Court fee Act, 1870 may be made applicable to such appeals. However, Rajasthan High Court had taken into consideration Rules 37 of the RERA Rules, 2017 wherein, a fixed Court fee of Rs. 5000/- in the form of demand draft or Bankers Cheque is payable to file the appeal before the Appellate Tribunal and that being the requirement for filing appeal, the Rajasthan High Court found it appropriate to fixed Rs. 5,000/- fixed court fee in filing appeal before High Court, Rajasthan under Section 58(1) of the Act, 2016 too. 20. The relevant portions of Article 1 of Schedule-I and Article 11 of Schedule II of the Court Fees Act, 1870 are being mentioned hereinbelow with regard to Schedules: – SCHEDULE I Ad valorem Fees 1. Plaint, written statement, pleading a set-off or counter-claim or memorandum of appeal 1(not otherwise provided for in this Act), [or cross-objection] presented to any Civil or Revenue Court except those mentioned in Section 3. Court-Fees (Bihar Amendment) Act, 1995 (Bihar Act No. 7 of 1996) 1. Plaint, written statement, pleading a set-off or counter claim or  memorandum of appeal or a cross objection not otherwise provided for in this Act presented  to  any civil or revenue Court except those mentioned in Section 3. When the Amount of dispute or value of the subject    mater   in dispute. ……… (vii)  exceeds     ten thousand rupees. Court-fees    (Bihar Amdt.) Act 9 of 2001 When the  amount or value of the  subject mater in dispute- ……….. ………. (ix) When such amount or value exceeds fifty thousand  rupees for every  five  thousand rupees or part thereof, in excess or of fifty thousand. Provided that the maximum fee leviable on a plaint or memorandum  of appeal shall be Rs. 50,000/- ……….. ………. (ix) When such amount or value exceeds fifty thousand  rupees for every  five  thousand rupees or part thereof, in excess or of fifty thousand. Provided that the maximum fee leviable on a plaint or memorandum  of appeal shall be Rs. 50,000/- ……….. On ten thousand rupees the fee payable under clause (vi),and on the remainder, thirty seven rupees and fifty naye paise for every five hundred rupees or part thereof. On fifty thousand rupees the fee payable under clause (viii) and on the remainder eighty rupees for every five thousand rupees or part thereof. SCHEDULE II Fixed Fees 11. Memorandum  of appeal when the appeal is not  from  a  decree  or an order  having  the  force  of a decree and is presented. Court-fees (Bihar Amdt.) Act 18 of 1996 9. Memorandum of appeal  when  the appeal is  not  from  a decree  or an order  having  the  force of a decree, and is presented. (a)........................… (b).......................… (c) To  a  High Court or to a  Chief  Cont- rolling  Executive  or Revenue Authority. Court-fees    (Bihar Amdt.) Act 18 of 1996 (a) to any Civil Court other than a High Court, or  to  any  Revenue Court   or  Executive Officer other than the High Court  or  Chief Controlling Revenue or Executive Authority. (b) to a  High  Court or Chief Commissioner or other  Chief  Controlling  Executive  or Revenue Authority. Five rupees. Rs. 5.00 (Five rupees) Rs. 15.00 21. The finding of Hon’ble Allahabad High Court with regard to Court fee is being reproduced: – “A comparison of both the Articles would reveal that Article 1 of Schedule I covers all memorandum of appeals presented before civil or revenue court excluding those which are otherwise provided under the Act. Article 11 of Schedule II covers all memorandum of appeals including those presented before High Court but excluding those arising from a decree or an order having the force of decree. The order of the Appellate Tribunal is not a decree otherwise then for a limited purpose of its execution by the Appellate Tribunal itself. Therefore, the memorandum of appeal against the order of Appellate Tribunal would squarely fall under Article 11 of Schedule II to the Act. Since it has been provided under the aforesaid entry it would be stand excluded from Article 1 of Schedule I of the Act. Thus, it would not be amenable to payment of ad-valorem court fees. Therefore, the memorandum of appeal against the order of Appellate Tribunal would squarely fall under Article 11 of Schedule II to the Act. Since it has been provided under the aforesaid entry it would be stand excluded from Article 1 of Schedule I of the Act. Thus, it would not be amenable to payment of ad-valorem court fees. With reference to AIR 1957 SC 657 , A.V. Fernandez vs. State of Kerala, and AIR 1964 SC 457 State of Maharashtra vs. Mishri Lal Tarachand it could be said that the matter is settled that a provision of fiscal statute must be strictly interpreted giving every benefit of doubt to the assessee so as to lighten the burden of the assessee. In Diwan Brothers vs. Central Bank of India, Bombay and others AIR 1976 SC 1503 the court was ceased with a matter of payment of court fees in an appeal before the High Court arising from the order of the Tribunal appointed under the Displaced Persons (Debts Adjustment) Act, 1951. In the said case also the question that fell for consideration was whether or not the decision given by the Tribunal under the aforesaid Act could be said to be a decree within the meaning of Article 11 of Schedule II to the Act for the purposes of payment of court fee. The court observed that the Tribunal under the Act cannot be called a court as there is clear distinction between a Tribunal and the Court. The proceedings before the Tribunal do not start with a plaint and as such would not culminate into a decree. The mere description of the decision of the Tribunal to be a decree for the limited purpose would not make the decision a decree within the meaning of Section 2(2) of the C.P.C. The court held that the term decree used in Article 11 of Schedule II to the Act is referable to a decree as defined under Section 2(2) of C.P.C. and the decision of the Tribunal does not fulfill the requirements of the decree. Therefore, the memorandum of appeal filed before the High Court squarely falls within the ambit of Article 11 of Schedule II of the Act and the ad valorem court fees under Article 1 of Schedule II of the Act is not payable.” 22. Therefore, the memorandum of appeal filed before the High Court squarely falls within the ambit of Article 11 of Schedule II of the Act and the ad valorem court fees under Article 1 of Schedule II of the Act is not payable.” 22. In the opinion of this Court, the observation made by Hon’ble Allahabad High Court in M/s Supertech Ltd. (supra) that provision of Article 11 of Schedule II of the court fees Act is applicable appears to be more plausible than regulating the same applying Rule 37 of the RERA Rules, 2017 for court fee matter relating to the Appeal to be filed under Section 58 of the Act, 2016. The observation of Allahabad High Court is based on law provided under the Court Fee Act, 1870. 23. Considering the aforementioned discussions, I am also in the opinion that only a fixed court fee of Rs. 15/- as prescribed under Article 9 of Schedule II of the Court fees (Bihar Amendment) Act of 1996 would be payable on the memorandum of appeal filed before the High Court under Section 58 of the Act. 24. In conclusion, it is held as under: – (i) An order passed by the Tribunal is not a decree within the meaning of Section 2(2) of the Code of Civil Procedure, though such order is executable like a decree of a Court. (ii) For the aforesaid reason, no second appeal shall lie under Section 58(1) of the Act against an order passed by the Tribunal, rather a miscellaneous appeal would be maintainable against such order of the Tribunal. (iii) A fixed court fee as prescribed under Article 9 of Schedule II of the Court Fees Act would be payable on a memorandum of appeal before the High Court under Section 58 of the Act, which is at present fixed as Rs. 15/-. 25. Learned counsel for the appellant is accordingly permitted to convert the Second Appeal into Miscellaneous Appeal under Section 58 of the Act, 2016 within six weeks. 26. Registry is directed to circulate this order to the Stamp Reporters to proceed accordingly for registering the appeals filed under Section 58 of the Act, 2016 in future before the High Court of Judicature at Patna. 27. 26. Registry is directed to circulate this order to the Stamp Reporters to proceed accordingly for registering the appeals filed under Section 58 of the Act, 2016 in future before the High Court of Judicature at Patna. 27. Let a copy of this order be placed before Hon’ble the Chief Justice to consider the desirability of creating a category or sub-category of miscellaneous appeals arising out of orders passed by the Appellate Tribunal under Section 58(1) of the Act.