Chattisgarh High Court
R.C.P. Infratach Limited vs Smt. Sharda Devi Agrawal 24 ... on 13 December, 2019
Bench: P. R. Ramachandra Menon, Parth Prateem Sahu
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NAFR
HIGH COURT OF CHHATTISGARH BILASPUR
Judgment Reserved on 14/11/2019
Judgment Delivered on 13/12/2019
Writ Appeal No. 293 of 2019
(Arising out of order dated 18/02/2019 passed in Writ
Petition (C) No.2766/2018 by the learned Single Judge)
R.C.P. Infratech Private Limited (Earlier Name R.P. Real
Estate Private Limited), Through Managing Director, Shri
Rakesh Pandey son of late R. C. Pandey, aged about 52
Years, R/o A-5, Anupam Nagar, Raipur, District Raipur
Chhattisgarh.
---- Appellant
Versus
1. Smt. Sharda Devi Agrawal, wife of Shri Santosh Kumar
Agrawal,
2. Santosh Kumar Agrawal son of late Shri J. D. Agrawal,
Both R/o Champa, District Janjgir - Champa, at present R/o
311, Samta Colony, Raipur, District Raipur Chhattisgarh.
3. President, Real Estate Regulatory Authority, Shastri Chowk,
Raipur, District Raipur Chhattisgarh.
---- Respondents
For Appellant : Mr. Raghvendra Pradhan, Advocate For Respondents 1 & 2 : Mr. Awadh Tripathi, Advocate Hon'ble Shri P. R. Ramachandra Menon, Chief Justice Hon'ble Shri Parth Prateem Sahu, Judge C A V JUDGMENT Per Parth Prateem Sahu, Judge
1. Dismissal of the writ petition by learned Single Judge on 18/02/2019 in Writ Petition (C) No.2766 of 2018 wherein the appellant/writ petitioner has challenged the order of Chhattisgarh Real Estate Regulatory Authority, Raipur (for short 2 'RERA') made the appellant to file this appeal.
2. Case of the appellant, in nutshell is that, he deals in the business of colonizing/developing the lands. He has constructed Apartment in the name and style of 'VIP Heights' at Saddu, Raipur, Chhattisgarh. Private respondents have booked flat No. 604 measuring 1805 square feet by depositing Rs.51,000/- as advance. Further, an amount to the tune of Rs.6,10,000/- has been deposited and thereafter, an agreement of sale has been executed on 08/04/2013, wherein it is mentioned that appellant will handover the flat within 15 months. When within the time agreed for handing over the flat, subject flat of agreement could not be handed over to the private respondents, the parties agreed to cancel the first agreement and to execute a new agreement which was executed on 07/05/2016. Flat No.601 is made the subject of agreement to sale for consideration of Rs.30,00,000/-. According to agreement dated 07/05/2016, possession of the flat was to be handed over to the private respondents till February, 2017, but the appellant failed to hand over the possession of flat as agreed. This made the private respondents to file a complaint before the authority under RERA Act. Private respondents along with several other grounds have also mentioned that the construction of club house and other amenities including their flat is not completed. It was also mentioned that even after lapse of agreed time, possession of 3 flat No.601 was not handed over nor sale deed was executed in favour of party No.2 in the agreement.
3. The RERA while allowing the application passed an order dated 31/07/2018. Relevant portion of the order is extracted below for ready reference :-
"12- mijksDr foospuk ds vk/kkj ij izkf/kdj.k }kjk vkosnd dk vkosnu Lohdkj djrs gq, vukosnd@ izeksVj ds fo:) fuEu vkns'k ikfjr fd;k tkrk gS& 1- vukosnd@ izeksVj iz'uk/khu izkstsDV gsrq Dyc gkml lfgr czks'kj esa of.kZr leLr lqfo/kk,Wa 'kh?kz iw.kZ djuk lqfuf'pr djsA 2- vukosnd }kjk vkosndx.k dks muds }kjk Hkqxrku dh xbZ dqy jkf'k ij laxf.kr C;kt dh dqy jkf'k 4]14]000@& ¼v{kjh jkf'k& :i;s pkj yk[k pkSng gtkj ek=½ dk Hkqxrku fnukWad 30-09-2018 rd lqfufpr djsA 3- vukosnd] iz'uk/khu ¶ySV dk fuekZ.k iw.kZ dj l{ke izkf/kdkjh ls iw.kZrk izek.k&i= izkIr dj bldk fof/kor~ vkf/kiR; nks ekg ds Hkhrj vkosndx.k dks lkSaiuk lqfu'fpr djsA 4- iz'uk/khu ¶ySV gsrq fo|qr ehVj dusD'ku ds fy, vko';d jkf'k dk Hkqxrku vkosndx.k }kjk fd;k tkosA"
4. Aggrieved by the order passed by RERA, appellant preferred a writ petition before the High Court bearing Writ Petition (C) No.2766 of 2018 and the learned Single Judge, after considering the facts, documents available on record and submissions of learned counsel, held that the appellant agreed before RERA to handover the possession of the flat within a week after completing door and bathroom fittings, further that petitioner failed to construct club house and other amenities and also considering the judgment passed in the matter of M. Ahuja (I) (P) Limited v. Shaktipunj Engineers Private Limited (WPC 4 No.2374 of 2018 decided on 27/08/2018), dismissed the writ petition to be devoid of merit.
5. Learned counsel appearing for the appellant contended that the RERA directed for handing over the possession of flat in question to applicants/respondents No.1 and 2 within a period of two months after obtaining completion certificate and further to complete the club house and other amenities as per brochure at the earliest, ignoring that the agreement is only with one of the respondents, therefore, the possession cannot be handed over to both of them. He further submitted that project in question has been registered with RERA; and in the certificate issued by it period of completion of project has been mentioned as 31/03/2023, therefore, there is still time of four years for completion of entire project. He further submitted that copy of registration certificate of project mentioning date of its completion has been filed as Annexure A/6, which bears the date of completion of project as 31/03/2023. He also submits that without granting any opportunity to lead evidence to prove his bona fide or prove the cause for delay, in handing over possession of flat which was on account of the lapse on the part of respondents No.1 and 2, order for payment of interest was passed. He lastly submitted that in pursuance to the order for payment of interest to the tune of Rs.4,14,000/-, appellant had deposited part of interest directly with private respondents by way of cheque and balance part of amount has been 5 deposited with RERA.
6. Per contra, learned counsel appearing for private respondents submitted that as per agreement of the year 2012, he has deposited the amount of flat, but possession of the same could not be handed over within time. He further submitted that the flat No.604, which has been mentioned in the first agreement is the same flat, which is renumbered as 601 and only to avoid further dispute, second agreement has been executed on instructions of the appellant. He further submitted that it is not that the appellant returned the amount of Rs.20,00,000/- towards the earlier agreement from his own, but the said amount has been refunded to the private respondents from the further amount deposited by the appellant in two installments of Rs.15,00,000/- each against second agreement. He further submitted that even after completion of period as prescribed in the second agreement, neither flat has been handed over nor sale deed has been executed in favour of private respondents. He lastly submitted that the appellant has taken frivolous plea of confusion that in whose name the sale deed is to be executed. He submits that private respondents have given affidavits that the sale deed may be executed in the name of Smt. Sharda Devi Agrawal, in whose favour, agreement to sale was executed.
7. We have heard learned counsel appearing for the parties and perused the record carefully.
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8. Looking to the nature of dispute between the parties and the admission of appellant recorded by the RERA as well as learned Single Judge in the writ petition and further the submissions made by learned counsel for the appellant that only due to confusion, sale deed could not be executed though the flat is ready except some minor work of bathroom fittings because it is one of the respondents, who entered into an agreement, but the order of RERA is in favour of both the private respondents. By way of an interim order dated 18/10/2019, we have directed the appellant to execute the sale deed in favour of respondent No.1 and also fixed the date for their appearance before the Registrar, Raipur on 23/10/2019. It was further directed that the balance part of the interest amount, which was deposited by the appellant with RERA shall be kept in fixed deposit till outcome of the writ petition taking into consideration the submissions made by the appellant as well as the affidavit submitted by respondents No.1 and 2. The relevant portion of order dated 18/10/2019 is extracted below :-
"Shri Pradhan the learned counsel for the Appellant submits that the Real Estate Regulatory Authority (for short 'RERA') while considering the complaint filed by the Respondents had not considered the provisions of the RERA Act. He further submits that the Competent Authority had extended the period for the completion of the project and therefore, the orders passed by the RERA is contrary to the provisions of the Real Estate (Regulation and Development) Act, 2016. He prays to stay the order of the RERA dated 31.07.2018. He further submitted that the amount of penalty has been partly paid to the Respondent through cheque 7 and the part of the amount has been deposited with authority of the RERA. He submits that as the Respondents have made a prayer in the complaint filed before RERA that for possession of the subject flat on completion with the amenities as mentioned in agreement and 'Brochure' be given alongwith other prayers and therefore, sale deed could not be executed in her favour. He further submits that RERA also directed for execution of sale deed in favour of both whereas agreement to sale was executed in between Appellant and Respondent No. 1 only and therefore, also sale deed could not be executed.
Per contra, learned counsel for the Respondents submits that the sale deed can be executed in the name of the Respondent No. 1 in whose name agreement to sale has been executed and the Respondent No. 2 has no objection to it. He submits that affidavit to this effect is also executed by the Respondents No. 1 & 2 before this court and filed on record. He submits that Respondents are ready to get the sale deed executed in favour of the Respondent No. 1 subject to completion of all the amenities suitable for the residence in the flat itself. He further submits that at present he is not claiming for the amount deposited before the RERA authority. It was also brought to the notice of the Court that possession of the flat in apartment is already handed over to several persons/buyers.
In view of the aforementioned submission made by the respective counsels for the parties, we direct that both the parties i.e. Appellant and Respondent No.1 to appear before the Registrar, Raipur on 23.10.2019 and on which date Appellant will make all the necessary documents available so that the sale deed can be executed in favour of the Respondent No. 1. It is also directed that after getting sale deed registered Appellant will hand over the possession of the said subject flat to Respondent No. 1 on the same date.
We also direct the amount so lying with the authority under RERA Act shall be deposited in fixed deposit by the said authority for the period of one year. The payment of the amount will be subject to outcome of the writ petition. The other part of the order of the RERA 8 dated 31.07.2018 shall remain stay till the final outcome of this writ petition."
9. Taking into consideration entire facts and circumstances of the case, nature of dispute projected and also looking to the fact that the appellant was successful in obtaining the document Annexure A/6 from RERA in Form-C i.e. Registration Certificate of the project wherein the ending period of the registration of project has been shown to be 31/03/2023, which could not be brought on record before RERA, and the same is not disputed by the learned counsel for respondents No.1 and 2, further, taking into consideration the submissions made by the learned counsel for the appellant that the proper opportunity to lead evidence and to cross-examine the witness in evidence was not provided to him, we find it appropriate to remand the matter back to the RERA with a direction to consider the case afresh and to pass appropriate orders.
10. Needless to mention that both the parties will be at liberty to place on record any other additional documents relied upon by them before the RERA, if any, to amend their pleadings suitably and to place evidence in support of their claim. The authority under RERA after giving aforesaid opportunity and hearing to the respective parties will decide the case afresh in accordance with law.
11. In the result, appeal is allowed and impugned order dated 18.02.2019 (Annexure P1) is set aside. The matter is remanded 9 back to the Court of Chhattisgarh Real Estate Regulatory Authority, Raipur.
12. The parties shall appear before the RERA on 06.01.2020 and thereafter, the RERA will be obliged to decide the case within a further period of four months, in accordance with law. Interim order passed on 18/10/2019 is made absolute.
Sd/- Sd/-
(P. R. Ramachandra Menon) (Parth Prateem Sahu)
Chief Justice Judge
Yogesh