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2025 DIGILAW 935 (HP)

Himland Executive Residences (Himland Housing (P) Ltd. ) v. Arun Kumar Sharma

2025-05-06

JYOTSNA REWAL DUA

body2025
JUDGMENT : Jyotsna Rewal Dua, J. This miscellaneous second appeal has been preferred under Section 58 of the Real Estate (Regulation and Development) Act, 2016 (in short ‘the Act’) against the order dated 13.05.2022 passed by the learned Haryana Real Estate Appellate Tribunal (exercising power conferred by Section 43(1), (2) and (4) of the Act for Himachal Pradesh also), Chandigarh. Under the impugned order, learned Appellate Tribunal did not entertain the appeal filed by the appellant due to violation of the directions issued by this Court in M/s Himland Housing Private Limited Versus State of Himachal Pradesh and others, CWP No.662 of 2022, decided on 21.02.2022 as also due to non-compliance of the mandatory provisions of proviso to Section 43(5) of the Act. 2. Following facts emerge from the joint submissions made for the parties:- 2(i). The appellant-Company is engaged in the business of Real Estate Development. For developing group housing project over the land situated in Damrog, District Solan, HP, the appellant got its project registered under the provisions of the Act. The said registration of the project was valid till 10.05.2024. According to the appellant, its aforesaid housing project consisted of three blocks, i.e. Blocks ‘A’, ‘B’ and ‘C’; 80% of the construction in Block-A was completed by constructing 36 flats; Construction of Blocks-B and C could not start. 2(ii). Respondent No.1 lodged a complaint on 19.07.2021 before Real Estate Regulatory Authority (RERA), Himachal Pradesh with the allegation that he had booked a specific flat in Block-A and had paid an advance amount of Rs.66,539/- on 30.07.2008 by cheque at the time ofsubmitting the application form. That he had made total payment of Rs.6,66,539/- against total cost of Rs.13,30,780/-. The remaining amount was to be paid at the time of offer of possession by the appellant. Complainant’s grievance was that possession had not been handed over to him. He sought refund of the amount paid by him alongwith interest, besides claiming compensation under several heads. 2(iii). RERA, Himachal Pradesh adjudicated the complaint on 28.12.2021 and issued following directions:- “22. Relief:- Keeping in view the abovementioned facts, this Authority in exercise of power vested in under various provisions of the Act issues the following orders/directions: “i. The complaint is allowed and the Respondent promoters are directed to refund a sum of Rs. Six Lakh Sixty Six Thousand Five hundred and Thirty Nine (Rs. Relief:- Keeping in view the abovementioned facts, this Authority in exercise of power vested in under various provisions of the Act issues the following orders/directions: “i. The complaint is allowed and the Respondent promoters are directed to refund a sum of Rs. Six Lakh Sixty Six Thousand Five hundred and Thirty Nine (Rs. 6,66,539/-) along with interest at the SBI highest marginal cost of lending rate plus 2% as prescribed under Rule 15 of the Himachal Pradesh Real Estate (Regulation & Development) Rules, 2017. The present highest MCLR of SBI is 7.3 % hence the rate of interest would be 7.3%+2% i.e. 9.3%. It is clarified that the interest shall be payable from the dates on which different payments were made by the Complainant to the respondent till date the amount and interest thereon is refunded. ii. The refund along with interest is to be paid by the respondent promoter to the complaint within 60 days from the date of this order. iii. That in view of Section 61 of the Act which prescribes the maximum penalty that could be imposed for the contravention of any other provision of the Act other than Section 3 and 4, as five percent of the total cost of the project. The Authority, considering all facts of the case, deems appropriate to impose a penalty of Rs. Three Lakh in case the respondent promoter fails to comply with the present order/directions passed by this Authority within stipulated period of sixty days. iv. It is further ordered that no withdrawal from the bank account of the projects to be made till payment as ordered is made to the complainant and penalty is deposited into the account of Authority. Further, there shall not be any alienation of any movable and immovable assets of this project till compliance of this order. v. The respondent promoter is directed to intimate the details of their bank accounts pertaining to this project within fifteen days. vi. The complainant shall be at liberty to approach the Adjudicating Officer for compensation under Section 71 of the Act ibid.” By the aforesaid order, RERA allowed the complaint and directed the appellant/promoter to refund to respondent No.1 a sum of Rs.6,66,539/- (Rupees Six Lakh Sixty Six Thousand Five Hundred and Thirty Nine only) alongwith interest. vi. The complainant shall be at liberty to approach the Adjudicating Officer for compensation under Section 71 of the Act ibid.” By the aforesaid order, RERA allowed the complaint and directed the appellant/promoter to refund to respondent No.1 a sum of Rs.6,66,539/- (Rupees Six Lakh Sixty Six Thousand Five Hundred and Thirty Nine only) alongwith interest. The rate of interest applied was 7.3% + 2%, i.e. 9.3% (highest marginal cost of lending rate as per SBI Guidelines plus 2% as per Rule 15 of the Himachal Pradesh Real Estate (Regulation and Development) Rules, 2017). The interest was held payable from the dates on which different payments were made by respondent No.1 to the appellant till the actual date of payment and refund of interest thereon. The appellant was further directed to refund the above amount alongwith interest to respondent No.1 within 60 days from the date of the order. Further, in view of Section 61 of the Act, penalty of Rs.3 Lakh was imposable upon the appellant upon its failure to comply with the order within the stipulated period of 60 days. RERA, Himachal Pradesh also ordered that no withdrawal from appellant’s bank account of the projects would be allowed till payment in terms of the order is made by it to respondent No.1 and penalty is deposited into the account of the Authority (RERA). Appellant was further restrained from alienating its movable and immovable assets of the project till compliance of the order. Appellant was also directed to furnish the details of its bank accounts pertaining to the project within 15 days. 2(iv). Against the aforesaid order dated 28.12.2021 passed by the RERA, Himachal Pradesh, the appellant instituted Civil Writ Petition, being CWP No.662 of 2022, before this Court. The writ petition was decided on 21.02.2022. Taking note of Section 44 of the Act, which provided statutory remedy of appeal to the appellant against the impugned order passed by RERA, Himachal Pradesh on 28.12.2021, the writ petition was held to be not maintainable. Relevant portion from the decision in M/s Himland Housing Private Limited reads as under:- “2. Under Section 44(1) of the Real Estate (Regulations & Development) Act, 2016 (hereinafter call the ‘Act’), the petitioner has statutory remedy of appeal against the impugned order dated 28.12.2021 passed by RERA. The relevant sub sections of Section 44 read as under: 44. Relevant portion from the decision in M/s Himland Housing Private Limited reads as under:- “2. Under Section 44(1) of the Real Estate (Regulations & Development) Act, 2016 (hereinafter call the ‘Act’), the petitioner has statutory remedy of appeal against the impugned order dated 28.12.2021 passed by RERA. The relevant sub sections of Section 44 read as under: 44. Application for settlement of disputes and appeals to Appellate Tribunal.- (1) The appropriate Government or the competent authority or any person aggrieved by any direction or order or decision of the Authority or the adjudicating officer may prefer an appeal to the Appellate Tribunal. (2) Every appeal made under sub-section (1) shall be preferred within a period of sixty days from the date on which a copy of the direction or order or decision made by the Authority or the adjudicating officer is received by the appropriate Government or the competent authority or the aggrieved person and it shall be in such form and accompanied by such fee, as may be prescribed: Provided that the Appellate Tribunal may entertain any appeal after the expiry of sixty days if it is satisfied that there was sufficient cause for not filling it within that period. 3. This writ petition is not maintainable in view of the statutory remedy of appeal available to the petitioner against the impugned order.” Learned counsel for the appellant next urged before the Hon’ble Division Bench that the appellant though intends to avail the statutory remedy of appeal under Section 44 of the Act, but it was not in a position to comply with the proviso to Section 43(5) of the Act. Said section alongwith its proviso is reproduced hereinafter:- “43(5) Any person aggrieved by any direction or decision or order made by the Authority or by an adjudicating officer under this Act may prefer an appeal before the Appellate Tribunal having jurisdiction over the matter. Said section alongwith its proviso is reproduced hereinafter:- “43(5) Any person aggrieved by any direction or decision or order made by the Authority or by an adjudicating officer under this Act may prefer an appeal before the Appellate Tribunal having jurisdiction over the matter. Provided that where a promoter files an appeal with the Appellate Tribunal, it shall not be entertained, without the promoter first having deposited with the Appellate Tribunal atleast thirty per cent of the penalty or such higher percentage as may be determined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation imposed on him, if any, or with both, as the case may be before the said appeal is heard.” Hon’ble Division Bench took note of following reasons cited for the appellant for its inability to comply with the directions issued by RERA, Himachal Pradesh:- “Learned counsel for the petitioner argued that in view of onerous direction No. (iv) imposed upon it in the impugned order, the petitioner cannot withdraw any amount from its bank account(s) nor can it alienate its assets till payment as ordered is made to the complainant. It was further submitted that there is no other way available to the petitioner to make payment save and except either by withdrawing from the petitioner’s bank account(s) or by alienating its assets. In view of direction No. (iv), petitioner is not in a position to institute statutory appeal in terms of Section 43(5) of the Act.” Keeping in view that the writ petition was instituted within the limitation period available for instituting the statutory appeal against the impugned order passed by RERA and also considering the fact that under direction No.(iv) of the impugned order, the appellant had been restrained from withdrawing from its bank accounts and had also been restrained from alienating its assets till the compliance of the impugned order and the fact that the appellant had expressed its willingness to comply with the directions passed by RERA, but its inability to comply with the directions statedly on account of its bank accounts having been frozen/it having been restrained from alienating its assets, the writ petition was disposed of with following directions:- “4. This writ petition was filed within the limitation period available for instituting the statutory appeal against the impugned order. This writ petition was filed within the limitation period available for instituting the statutory appeal against the impugned order. Considering the fact that under direction No.(iv) of the impugned order, petitioner has virtually been restrained from withdrawing from its bank account(s) and has also been restrained from alienating its assets till the compliance of the impugned order And because of this direction, petitioner even though willing, is statedly not in a position to comply with the other directions of the impugned order as well as with the requirements prescribed under Section 43(5) of the Act for instituting the appeal before the statutory Appellate Authority, we dispose of this writ petition with the following directions: In case the statutory appeal is filed by the petitioner within two weeks from today, then the same shall be entertained by the learned Real Estate Appellate Tribunal, subject to following conditions: (i) Petitioner shall give details of its bank(s), the bank account number(s) and the amount deposited therein alongwith the appeal. The amount so deposited in the petitioner’s bank account(s) should be sufficient to meet the liability under Section 43(5) of the Act. (ii) The amount payable by the petitioner in terms of Section 43(5) of the Act shall be computed by the learned Appellate Tribunal within one week from the date of filing of the appeal. (iii) The petitioner’s bank(s), as per the information provided by the petitioner in its appeal, shall be directed by the learned Appellate Tribunal to directly transfer the amount so computed to the Registry of the learned Tribunal towards compliance of Section 43(5) of the Act within a time bound schedule. (iv) The appeal shall be entertained and heard subject to compliance of above conditions.” Hon’ble Division Bench gave liberty to the appellant to avail remedy of statutory appeal; the appeal if filed within two weeks was to be entertained by the learned Appellate Tribunal. This was, however, made subject to certain conditions, viz. alongwith the appeal, the appellant was to give details of its bank(s), bank account number(s) and the amount deposited therein; The amount deposited in petitioner’s bank account(s) had to be sufficient to meet the liability under Section 43(5) of the Act; The amount payable by the appellant in terms of Section 43(5) of the Act was to be computed by the learned Appellate Tribunal within one week from the date of filing of the appeal. It was also ordered that appellant’s bank(s), as per the information provided by the appellant in its appeal, would be directed by the learned Appellate Tribunal to directly transfer the amount so computed to its Registry towards compliance of Section 43(5) of the Act. 2(v). Pursuant to the aforesaid directions, the appellant preferred appeal against the order dated 28.12.2021 passed by RERA, Himachal Pradesh before the learned Appellate Tribunal alongwith an application for condoning the delay in instituting the appeal. Vide order dated 13.05.2022, learned Appellate Tribunal held that the appellant had failed to comply with the directions given by the Division Bench of this Court in M/S Himland Housing Private Limited. That the appellant had not given its bank account details alongwith the appeal. That even if 30% of the penalty amount is taken as pre-deposit condition for hearing the appeal, a total sum of Rs.10,88,727/- would be required to be deposited alongwith the appeal. Accordingly, it held that the appeal cannot be entertained and dismissed the same. In the aforesaid background, the appellant has instituted the present appeal by taking recourse to Section 58 of the Act. 3. Learned counsel for the appellant contends that the calculations/computations made by the learned Appellate Tribunal that 30% of the penalty amount imposed upon the appellant would come to Rs.10,88,727/-, were incorrect. That the learned Appellate Tribunal had not computed the amount payable by the appellant in accordance with Section 43(5) of the Act. Learned counsel further submits that the appellant has deposited an amount of Rs.2,50,000/- in the Registry of this Hon’ble Court. 4. I have heard learned counsel on both sides on the aforesaid issue. The appeal preferred by the appellant has been dismissed by RERA, Himachal Pradesh on the ground of it being non-compliant to the directions issued to the appellant by the Hon’ble Division Bench of this Court in M/S Himland Housing Private Limited. Admittedly, the appellant had not taken recourse to statutory remedy that was available to it under Section 44 of the Act against the order dated 28.12.2021 passed by RERA, Himachal Pradesh on the ground that it was not in a position to comply with the proviso to Section 43(5), which imposed condition of pre-depositation of amount in terms of determination by the learned Appellate Tribunal. The reasons given by the appellant before the Hon’ble Division Bench of this Court, as noticed in the aforesaid decision, were that unless and until it is in a position to withdraw the amount from its bank account(s), it will not be able to satisfy the proviso to Section 43(5) of the Act. It was for these reasons that the writ petition was decided on 21.02.2022 with direction to the appellant to give details of its bank(s), bank account number(s) and the amount deposited therein alongwith the appeal to be preferred by it before the learned Appellate Tribunal, with a further direction that the amount in appellant’s bank accounts should be sufficient to meet any liability to be determined by the learned Appellate Tribunal under Section 43(5) of the Act. It needs to be mentioned here that the liability under Section 43(5) of the Act is not limited just to deposit of 30% of the penalty amount. It may extend to depositation of the complete amount awarded by the RERA. As per directions issued by the Hon’ble Division Bench, learned Tribunal was to determine appellant’s liability for depositing the amount as per Section 43(5) of the Act subject to appellant’s furnishing the details of its bank accounts having sufficient funds to satisfy the order passed by RERA, Himachal Pradesh on 28.12.2021. Admittedly, the appellant did not comply with the directions issued by the Hon’ble Division Bench. It did not furnish the details of its bank accounts. That being the position, learned Appellate Tribunal was within its jurisdiction to hold that the appeal could not be entertained and to dismiss the same under the impugned order for want of compliance to M/S Himland Housing Private Limited2 as well as proviso to Section 43(5) of the Act. It may also be noticed that during hearing of this appeal on 04.01.2024, learned counsel appearing for the appellant had given to understand that in case the appellant is permitted to sell certain flats, then the sale proceed thereof can be ordered to be deposited. Umpteenth opportunities were granted to the appellant for complying with the aforesaid order including passing of orders on 22.04.2024, 05.07.2024 & 10.01.2025 for removal of red entry in the revenue record to enable it to sell the flats and deposit the sale proceeds in the Registry of this Court. The amount was not deposited by the appellant. 5. Umpteenth opportunities were granted to the appellant for complying with the aforesaid order including passing of orders on 22.04.2024, 05.07.2024 & 10.01.2025 for removal of red entry in the revenue record to enable it to sell the flats and deposit the sale proceeds in the Registry of this Court. The amount was not deposited by the appellant. 5. In view of above, I find no merit in the instant appeal. The same is accordingly dismissed alongwith pending miscellaneous application(s), if any.