Gujarat High Court
Shri Hari Enterprise vs Vaibhav Mahendrabhai Prajapati on 26 February, 2020
Author: G.R.Udhwani
Bench: G.R.Udhwani
C/SA/75/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 75 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/SECOND APPEAL NO. 75 of 2020
With
R/SECOND APPEAL NO. 77 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/SECOND APPEAL NO. 77 of 2020
With
R/SECOND APPEAL NO. 55 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/SECOND APPEAL NO. 55 of 2020
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SHRI HARI ENTERPRISE
Versus
GARISHMA MANUBHAI PRAJAPATI
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Appearance:
MR SUNIT SHAH, ADVOCATE with MR AMRISH K PANDYA(3219) for the
Appellant(s) No. 1,2,3
MR PARTH D PATEL(9754) for the Appellant(s) No. 1,2,3
MS. MANISHA L. SHAH, SENIOR COUNSEL with MR. DHARMESH
DEVNANI, ADVOCATE for the Respondent(s) No. 6
for the Respondent(s) No. 1,2,3,4,5,6
MR BHARGAV PANDYA, AGP for the Respondent(s) No. 7
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 26/02/2020
COMMON ORAL ORDER
1. Appearance of learned counsel Mr.Dharmesh Devnani for the respondent No.6-Gujarat Real Estate Regulatory Authority shall be recorded. Appearance of learned counsel Mr.Jaimin R. Dave and Mr.Shivam Parikh for the respondent No.1 shall be recorded.
Page 1 of 11 Downloaded on : Sun Jun 14 23:10:10 IST 2020 C/SA/75/2020 ORDER2. These appeals under Section 58 of the Real Estate (Regulation & Development) Act read with Section 100 of the Civil Procedure Code seek to raise following substantial questions of law :
Substantial questions of law raised in Second Appeal No. 75 of 2020 :
"A. Whether the respondent no.5 erred in law by imposing dual conditions over the appellants more particularly when the appellants have satisfied all the parameters required for grant of interim relief in their favour and as both the conditions runs contrary to each other in eye of law?
B. Whether the respondent no.5 has erred in law in passing the impugned order by ignoring the fact that the complaint by respondent no.1 before respondent no.6 was not maintainable in light of the fact that civil suit being Special Civil Suit No.600 of 2016 based in same of cause of action is unconditionally withdrawn by respondent no.1 as the same is barred by principle of res- judicata?
C. Whether the respondent no.5 has failed to consider that the complaint by the respondent no.1 is barred by principle of estopple as the same was filed before the respondent no.6 pending civil suit, which is Page 2 of 11 Downloaded on : Sun Jun 14 23:10:10 IST 2020 C/SA/75/2020 ORDER being suppressed by the respondent no.1 in her complaint?
D. Whether the impugned order passed by respondent no.5 imposing condition on the appellants to furnish bank guarantee to the tune of Rs.40,00,000/- against the alleged claim of respondent no.1 of Rs.17,87,500/- is fair, just and proper, when the appellants have satisfied all parameters for grant of interim relief?
E. Whether the respondent no.5 has erred in law by not considering the fact that the respondent no.4 has decided serious disputed question of facts about alleged transaction without adopting the procedure as contemplated under section 35 of the Gujarat Real Estate Act?
F. Whether the respondent no.5 erred in law by passing impugned order by imposing conditions on the appellants having failed to appreciate the fact that there is no privity of contract between the appellants and the respondent no.1 in addition to the fact that the appellants are bona-fide auction purchasers of the property in question from Debt Recovery Tribunal?
G. Whether the respondent no.5 and 6 have seriously erred in not realizing that the alleged transaction by the complainant with Page 3 of 11 Downloaded on : Sun Jun 14 23:10:10 IST 2020 C/SA/75/2020 ORDER respondent no.2 is a clear case of fraud as seen from the record of the case?
H. Whether the respondent no.5 could have imposed conditions on the present appellant no.1 who is acting bonafidely and respondent no.5 ought to have appreciated that the appellant no.1 is an auction purchaser and therefore, cannot be considered as defaulter as per Gujarat Real Estate (Regulation & Development) Act?
I. Whether the respondent no.5 and 6 have erred by exercising powers beyond the scope of Gujarat Real Estate (Regulation & Development) Act by going beyond the scope of the scheme 'Shayona Aagman' of appellant no.1?
J. Whether the respondent no.5 and 6 have erred in interpreting the term 'as is what is and where is' as the same term refers with the title of the property of appellant no.1 and not with the scheme 'Shayona Aagman' of appellant no.1?"
Substantial questions of law raised in Second Appeal No. 77 of 2020 :
"A. Whether the respondent no.5 erred in law by imposing dual conditions over the appellants more particularly when the appellants have satisfied all the parameters Page 4 of 11 Downloaded on : Sun Jun 14 23:10:10 IST 2020 C/SA/75/2020 ORDER required for grant of interim relief in their favour and as both the conditions runs contrary to each other in eye of law?
B. Whether the respondent no.5 has erred in law in passing the impugned order by ignoring the fact that the complaint by respondent no.1 before respondent no.6 was not maintainable in light of the fact that civil suit being Special Civil Suit No.598 of 2016 based in same of cause of action is unconditionally withdrawn by respondent no.1 as the same is barred by principle of res- judicata?
C. Whether the respondent no.5 has failed to consider that the complaint by the respondent no.1 is barred by principle of estopple as the same was filed before the respondent no.6 pending civil suit, which is being suppressed by the respondent no.1 in her complaint?
D. Whether the impugned order passed by respondent no.5 imposing condition on the appellants to furnish bank guarantee to the tune of Rs.40,00,000/- against the alleged claim of respondent no.1 of Rs.17,87,500/- is fair, just and proper, when the appellants have satisfied all parameters for grant of interim relief?
E. Whether the respondent no.5 has erred Page 5 of 11 Downloaded on : Sun Jun 14 23:10:10 IST 2020 C/SA/75/2020 ORDER in law by not considering the fact that the respondent no.4 has decided serious disputed question of facts about alleged transaction without adopting the procedure as contemplated under section 35 of the Gujarat Real Estate Act?
F. Whether the respondent no.5 erred in law by passing impugned order by imposing conditions on the appellants having failed to appreciate the fact that there is no privity of contract between the appellants and the respondent no.1 in addition to the fact that the appellants are bona-fide auction purchasers of the property in question from Debt Recovery Tribunal?
G. Whether the respondent no.5 and 6 have seriously erred in not realizing that the alleged transaction by the complainant with respondent no.2 is a clear case of fraud as seen from the record of the case?
H. Whether the respondent no.5 could have imposed conditions on the present appellant no.1 who is acting bonafidely and respondent no.5 ought to have appreciated that the appellant no.1 is an auction purchaser and therefore, cannot be considered as defaulter as per Gujarat Real Estate (Regulation & Development) Act?Page 6 of 11 Downloaded on : Sun Jun 14 23:10:10 IST 2020 C/SA/75/2020 ORDER
I. Whether the respondent no.5 and 6 have erred by exercising powers beyond the scope of Gujarat Real Estate (Regulation & Development) Act by going beyond the scope of the scheme 'Shayona Aagman' of appellant no.1?
J. Whether the respondent no.5 and 6 have erred in interpreting the term 'as is what is and where is' as the same term refers with the title of the property of appellant no.1 and not with the scheme 'Shayona Aagman' of appellant no.1?"
Substantial questions of law raised in Second Appeal No. 55 of 2020 :
"A. Whether the respondent no.5 erred in law by imposing dual conditions over the appellants more particularly when the appellants have satisfied all the parameters required for grant of interim relief in their favour and as both the conditions runs contrary to each other in eye of law?
B. Whether the respondent no.5 has erred in law in passing the impugned order by ignoring the fact that the complaint by respondent no.1 before respondent no.6 was not maintainable in light of the fact that civil suit being Special Civil Suit No.599 of 2016 based in same of cause of action is unconditionally withdrawn by respondent no.1 Page 7 of 11 Downloaded on : Sun Jun 14 23:10:10 IST 2020 C/SA/75/2020 ORDER as the same is barred by principle of res- judicata?
C. Whether the respondent no.5 has failed to consider that the complaint by the respondent no.1 is barred by principle of estopple as the same was filed before the respondent no.6 pending civil suit, which is being suppressed by the respondent no.1 in her complaint?
D. Whether the impugned order passed by respondent no.5 imposing condition on the appellants to furnish bank guarantee to the tune of Rs.40,00,000/- against the alleged claim of respondent no.1 of Rs.17,87,500/- is fair, just and proper, when the appellants have satisfied all parameters for grant of interim relief?
E. Whether the respondent no.5 has erred in law by not considering the fact that the respondent no.4 has decided serious disputed question of facts about alleged transaction without adopting the procedure as contemplated under section 35 of the Gujarat Real Estate Act?
F. Whether the respondent no.5 erred in law by passing impugned order by imposing conditions on the appellants having failed to appreciate the fact that there is no privity of contract between the appellants and the Page 8 of 11 Downloaded on : Sun Jun 14 23:10:10 IST 2020 C/SA/75/2020 ORDER respondent no.1 in addition to the fact that the appellants are bona-fide auction purchasers of the property in question from Debt Recovery Tribunal?
G. Whether the respondent no.5 and 6 have seriously erred in not realizing that the alleged transaction by the complainant with respondent no.2 is a clear case of fraud as seen from the record of the case?
H. Whether the respondent no.5 could have imposed conditions on the present appellant no.1 who is acting bonafidely and respondent no.5 ought to have appreciated that the appellant no.1 is an auction purchaser and therefore, cannot be considered as defaulter as per Gujarat Real Estate (Regulation & Development) Act?
I. Whether the respondent no.5 and 6 have erred by exercising powers beyond the scope of Gujarat Real Estate (Regulation & Development) Act by going beyond the scope of the scheme 'Shayona Aagman' of appellant no.1?
J. Whether the respondent no.5 and 6 have erred in interpreting the term 'as is what is and where is' as the same term refers with the title of the property of appellant no.1 and not with the scheme 'Shayona Aagman' of appellant no.1?"Page 9 of 11 Downloaded on : Sun Jun 14 23:10:10 IST 2020 C/SA/75/2020 ORDER
3. It is unnecessary to address the merits of the appeals challenging the interim order as the ends of justice can be met by remanding the case to the appellate authority under RERA for expeditious hearing of the main matter in accordance with law as agreed by the parties during the course of hearing of this case. Accordingly directed.
4. It also transpires during the course of hearing, between the parties, that the appellants herein would reserve three flats, one in each case, as identified in the agreement to sale until hearing of the case under RERA Act and that undertaking to the above effect would be filed in all these proceedings.
5. In view of the above developments, on filing the undertaking by the appellants herein to the effect indicated above, the impugned order shall stand quashed and set aside and the matters shall stand restored to the file of appellate authority under the RERA for its decision on the main matter in accordance with law as indicated above.
6. It appears that during the pendency of these appeals, a further order in execution proceedings in the present case was passed requiring the appellants to deposit Rs.50,000/- for each days default in compliance with the impugned order rendered by the original authority. It appears that during the hearing with the original authority, the issue of bank guarantee was raised and in that context the above order was passed. Since the matters are Page 10 of 11 Downloaded on : Sun Jun 14 23:10:10 IST 2020 C/SA/75/2020 ORDER required to be finally heard, the aforesaid order passed requiring the deposit of Rs.50,000/- per day would not survive, if the undertaking as aforesaid is filed by the appellants.
7. These appeals are accordingly disposed of. In view of the disposal of the appeals, no orders on the connected Civil Applications.
Direct service is permitted.
(G.R.UDHWANI, J) BDSONGARA Page 11 of 11 Downloaded on : Sun Jun 14 23:10:10 IST 2020