Bombay High Court
Pankaj Chawla vs Vijay Jain And Anr on 22 August, 2022
Author: Madhav J. Jamdar
Bench: S.V.Gangapurwala, Madhav J. Jamdar
41.2626.21-wp.docx
BASAVRAJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY
GURAPPA CIVIL APPELLATE JURISDICTION
PATIL
Digitally signed by
BASAVRAJ GURAPPA
PATIL
WRIT PETITION NO. 2626 OF 2021
Date: 2022.08.23
20:00:37 +0530
Pankaj Chawla ..... Petitioner
Vs.
Vijay Jain & Ors. ..... Respondents
Mr. Rajesh H. Mirchandani for the Petitioner
Mr. K. S. Thorat, AGP for the State
Ms. Pooja Gaikwad I/b. Mr. Sanjay Chaturvedi for Respondent No.1
CORAM: S.V.GANGAPURWALA &
MADHAV J. JAMDAR, JJ.
DATED : AUGUST 22, 2022
P.C.
1 The Petitioner is challenging the order dated 18 th June 2021
passed by the MahaRERA, Mumbai.
2 We have heard the learned Counsel for the Petitioner and the
learned Counsel for the Respondents.
3 Respondent No.1 had approached the MahaRERA. In the
order, the MahaRERA directed the present Petitioner to register an agreement for sale in favour of Respondent No.1 or to refund the money given by Respondent No.1.
4 The learned Counsel for the Petitioner submits that the Basavraj 1/4 41.2626.21-wp.docx MahaRERA has not quantified any amount. It could not come to the conclusion as to what was the amount paid by the complainant to the Developer nor it could conclude that if any amount was paid and same was for purchase of a flat. The RERA could not have exercised the jurisdiction, according to the learned Counsel for the Petitioner. 5 The learned Counsel for the Petitioner also submits that for compliance of Section 42(5) of the Act, amount ought to have been quantified by the RERA. The appellate Tribunal ought not to have left it to the parties to determine the amount. 6 The learned Counsel for the Respondent submits that the Petitioner is required to make 100% pre deposit before the appellate tribunal while challenging the order of the RERA. As the amount is not quantified, the Tribunal has directed the parties to submit the details. The Respondent No.1 has submitted the details of amount. In view of proviso to Section 43(5) of the Real Estate (Regulation and Development) Act, 2016 (RERA Act) the Petitioner be directed to deposit the amount as submitted by the Respondent. 7 Upon perusal of the order of the RERA, it appears that RERA has not quantified the amount allegedly paid by the Respondent to the present Writ Petitioner. Paragraphs 3 and 4 of the order suggest that the RERA Authority could not conclude about the alleged Basavraj 2/4 41.2626.21-wp.docx transaction or the amount paid.
8 In such a scenario, the Petitioner filed an appeal and in the appeal, the order is passed granting opportunity to the parties to submit the details to substantiate the amount payable as per the impugned order for the limited purpose of compliance of proviso to Section 43(5) of the RERA Act. For compliance of the proviso to Section 43(5) of the RERA Act, the amount quantified by the RERA has to be pre-deposited. The RERA has not quantified any amount. In view of that it would be improper for the appellate tribunal to direct the parties to quantify the amount.
9 Be that as it may, this Court, under order dated 28 th July 2021 had directed the Petitioner to deposit 50% of the sum of Rs.1,97,50,000/- (Rupees One Crore Ninety Seven Lacs Fifty Thousand Only).
10 The learned Counsel for the Petitioner submits that said amount has been deposited by the Petitioner before this Court. 11 In light of the above, and in the peculiar facts and circumstances existing herein, we pass the following order:
a. The amount deposited by the Petitioner shall be transmitted to the RERA Appellate Tribunal, Mumbai. Same Basavraj 3/4 41.2626.21-wp.docx shall be kept in the deposit of the Appellate Tribunal Mumbai.
The said amount paid shall be considered as compliance of Section 43(5) of the RERA Act.
b It is made clear that the said deposit made by the Petitioner is without prejudice to the rights and contentions of either parties.
c. The Appellate Tribunal shall hear the appeal filed by the Petitioner and / or cross appeal filed by the Respondents, on its own merits. In that case, all contentions of the parties are kept open.
d. With these aforesaid, the Writ Petition is disposed of. No costs.
( MADHAV J. JAMDAR ,J.) (S.V. GANGAPURWALA, J.) Basavraj 4/4