Bombay High Court
Nirman Realtors And Developers Ltd. A ... vs Shabnam Ansari And Ors on 5 March, 2021
Author: C.V. Bhadang
Bench: C.V. Bhadang
503-sast-2576-2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL (ST) NO.2576 OF 2021
Nirman Realtors & Developers Ltd.,
A Company Reg. Mumbai-400058 ..Appellant
Vs.
Shabnam Ansari & Ors. ..Respondents
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Mr. A. N. Narula i/b. M/s. Jhangiani, Narula & Associates, for the
Appellant.
Mr. Cherag Balsara i/b. Ms. Leena Shah a/w. Mr. Dipen Furia i/b.
M/s. Shah & Furia Associates, for the respondents.
----
CORAM : C.V. BHADANG, J.
DATE : 05th MARCH 2021
P.C.
. The challenge in this appeal is to the order dated 14 th
December 2020 in Misc Application No.451/2020 and the order
dated 20th January 2021 in Misc Application No.513/2020 in Appeal
No.AT006000000052759 passed by the Maharashtra Real Estate
Appellate Tribunal Mumbai ('the Appellate Tribunal', for short). By
the order dated 14th December 2020, the application filed for
exemption/waiver of pre-deposit has been rejected. By the
subsequent order dated 20th January 2021, the Appellate Tribunal
has directed the appellant to deposit 30% of Rs.4,30,49,763/- which
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according to the respondents is the amount payable under the
consent decree which is sought to be executed.
2. The brief facts are that the respondents who are family
members are the allotees who had booked seven flats namely flat
Nos. 402, 405, 406, 407, 408, 506 and 507 in appellant's Green
Acres Project at Malad (East) Mumbai. According to the
respondents, the appellant had made incorrect or false statement in
the prospectus thereby contravening Section 12 of the Real Estate
(Regulation and Development) Act, 2016 (' the Act', for short). It
was further contended that the respondents failed to adhere to the
sanctioned plans and the project specifications and had failed to
complete the apartments as per the terms agreed thereby
contravening Section 14 and 18 of the said Act.
3. In such circumstances, the respondents filed separate
complaints before the Maharashtra Real Estate Authority ('the
authority', for short) seeking refund of the amount paid with interest
and/or compensation.
4. The complaints were resisted by the appellant interalia on the
ground that the respondents /complainants were not allottees and
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therefore the authority has no jurisdiction to entertain the
complaints. It was contended that Azad Co-operative Housing
Society is the owner of the land. The said society had entered into a
development agreement with the appellant which was part of a slum
Redevelopment Scheme.
5. The authority by a common order dated 26 th April 2018, in six
complaints granted refund of the amount with interest. Following is
the operative part of the order dated 26th April 2018.
ORDER
1. The respondents shall pay the amount mentioned in para Nos.14 to 19 and 24 with simple interest at the rate of 10.05% p.a. from the respective dates of receipt / payment till they are refunded.
2. Respondents shall pay the complainants Rs.20,000/- towards the cost of each complaint.
3. The charges of the aforesaid amount shall be on the respective flats booked by the complainants till satisfaction of their claim.
4. Complainants shall execute deeds of cancellation of their agreements for sale on satisfaction of their claims at the respondent's cost. An order on similar lines was passed in one complainant on 8th May 2018.
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6. The appellant feeling aggrieved, filed seven appeals before the Appellate Authority, where the parties reached settlement and accordingly the appeals were disposed of on 17 th October, 2018 in view of the consent terms. The disposal can be classified in two parts. In respect of flat Nos.402, 506 and 507 (First Group), M/s. Mass Enclave Joint Venture partner of the appellant had agreed to pay Rs.60,00,000/- each within 125 days, 170 days and 135 days respectively from the date of the signing of the consent terms. In respect of the flat Nos.405, 406, 407 and 408 (Second Group) the appellant had agreed to hand over the flats to the respective allottees as per the agreement on or before 1st December 2024.
7. The respondents/complainants filed execution application before the Appellate Tribunal for execution of the order dated 26 th April 2018 and 8th May 2018, which was withdrawn on 10 th October 2019, with liberty to seek execution before the Authority in accordance with law.
8. Following is the order passed by the Appellate Tribunal .
"Read pursis filed by applicants. Heard learned counsel for both sides. Applicants intend to execute order passed by MahaRERA Authority. Since applicants are not asking Mamta Kale page 4 of 13 ::: Uploaded on - 06/03/2021 ::: Downloaded on - 06/03/2021 22:06:31 ::: 503-sast-2576-2021 for execution of consent terms which were part and parcel of the order of this Tribunal, Execution Application No.54 of 2019 stands disposed of with liberty to applicants to seek execution of order of MahaRERA Authority in accordance with law. In consequence, MA No.293/19 also stands disposed of."
9. After this, the respondents filed seven execution applications before the authority. The Authority by an order dated 6 th January 2020 and 13th January 2020 issued recovery warrants. The orders record that the appellant failed to appear in the matter. According to the appellant, no notice of the execution application was received. According to the appellant they learnt about the passing of the order on receipt of a notice from Tahsildar Borivali (W). The appellant filed a rectification application before the Authority. According to the appellant as the authority declined to list the application inspite of pointing out urgency the appellant approached this Court in WP(L) No.4601/2020 challenging the orders dated 6 th January 2020 and 13th January 2020. The said petition was disposed of on 20 th October 2020 in the following terms.
P.C.
1. Heard the learned counsel for the parties.
2. The Petitioner has challenged the orders dated 6th January 2020 and 13th January 2020 passed by the Mamta Kale page 5 of 13 ::: Uploaded on - 06/03/2021 ::: Downloaded on - 06/03/2021 22:06:31 ::: 503-sast-2576-2021 Member, Maharashtra Real Estate Regulatory Authority (Maha RERA) and has also sought a direction to the adjudicating officer of Maha RERA to dispose of the rectification application.
3. As regards the orders dated 6th January 2020 and 13th January2020 are concerned, the Petitioner has remedy of appeal to the Appellate Tribunal.
4. It is the case of the Petitioner that the impugned orders are beyond the scope of the orders passed by the Appellate Tribunal by consent. The learned counsel for the Respondents refuted this contention.
5. In view of the availability of the alternate remedy, we are not inclined to entertain the writ petition.
6. However, we permit the Petitioner to file an appeal before the Appellate Tribunal within a period of two weeks from today. It is open to the Petitioner to file an application for exemption from deposit of amount, which application will be considered by the Appellate Tribunal on its own merits.
7. Writ Petition is accordingly disposed of.
8. All contentions of the parties are kept open.
9. This order will be digitally signed by the Private Secretary of this Court. All concerned to act on production by fax or email of a digitally signed copy of this order.
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10. After this the appellant filed an appeal before the Appellate Tribunal with Misc Application No.451/2020 for exemption from predeposit which was rejected by the impugned order dated 14 th December 2020. By a subsequent order dated 20 th January 2021 the appellant has been directed to deposit 30% of the amount as aforesaid. Hence this Appeal.
11. I have heard Mr. Narula, the learned counsel for the appellant and Mr. Balsara, the learned counsel for the respondents. Perused Record.
12. Mr. Narula, the learned counsel for the appellant has submitted that the order dated 26th April 2018 merged with the order dated 17th October 2018 passed by the Appellate Tribunal on the basis of the consent terms. It is thus submitted that the respondents cannot seek execution of the order dated 26 th April 2018 passed by the Authority. Reliance in this regard is placed on the decision of the Supreme Court in M/s Gojer Bros. (Pvt) Ltd. Vs Shri Ratan Lal Singh (1974) 2 SCC 453 and in Kunha Yammed and Others Vs State of Kerala and Another (2006) 6 SCC 359. It is next submitted that even otherwise the execution in respect of flat Nos.405, 406, 407 and 408 (Second group) is premature, in as Mamta Kale page 7 of 13 ::: Uploaded on - 06/03/2021 ::: Downloaded on - 06/03/2021 22:06:31 ::: 503-sast-2576-2021 much as the consent terms envisage handing over of the flats on or before 1st December 2024. It is submitted that no notice of the execution was ever served on the appellant and thus the Authority is in error in observing that the appellant was absent. It is submitted that the Appellate Tribunal had granted liberty to the respondents to seek execution of the order of the Authority "in accordance with law". It is thus submitted that the respondents cannot rely on the said order in seeking execution of the order dated 26 th April 2018 which has already merged in the order passed in the appeals.
13. In so far as the application for waiver/exemption is concerned, it is submitted that the Division Bench by order dated 20th October 2020 has observed that it would be open to the appellant to seek exemption. It is submitted that the Appellate Tribunal while considering the question of pre-deposit can prima facie look into the challenge to the impugned order and where the impugned order which is subject matter of challenge before the Tribunal is ex facie illegal and unsustainable, appropriate exemption can be granted.
14. Mr. Balsara, the learned counsel for the respondents has supported the impugned order. It is submitted that the appellant Mamta Kale page 8 of 13 ::: Uploaded on - 06/03/2021 ::: Downloaded on - 06/03/2021 22:06:31 ::: 503-sast-2576-2021 has defaulted in the matter of refund of Rs.60 Lacs as agreed and in that event the consent terms envisage that the original order passed by the Authority shall revive. It is submitted that thus the entire order in the seven complaints stood revived which is now sought to be executed. It is submitted that under section 43(5) of the Act the minimum predeposit is to the extent of 30% in penalty and compensation. It is submitted that there is no provision for 100% exemption or waiver. It is submitted that there is no provision for reduction of the amount of pre deposit in so far as the amount of refund is concerned. It is submitted the authority has in fact granted maximum exemption permissible. It is submitted that in respect of the three flats (First Group) the amount of Rs.1,80,00,000/ has already fallen due. The learned counsel has tendered a computation of Rs.2,55,60,000/- including interest of Rs.75,60,000/- out of which an amount of Rs.40,00,000/- has been paid. It is submitted that thus the amount of Rs.2,15,60,000/- is due and payable in respect of these three flats. It is submitted that the merits of the challenge cannot be gone into in this appeal as the appeals filed by the appellant before the Appellate Tribunal are still pending. It is submitted that the appellant inspite of having entered into the consent terms is refusing to abide by the same and is trying to delay the execution on technical and unsustainable grounds.
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15. I have carefully considered the rival circumstances and the submissions made.
16. In my considered view, it is not possible to examine the contentions in so far as the merits of the challenge to the order of issuance of warrant is concerned. It is necessary to note that the appeal filed by the appellant is still pending before the Tribunal. Thus it is neither necessary nor appropriate to preempt the decision in the said appeal. The Tribunal in the impugned order has also observed that the contentions about non service of notice and the attempt to execute the original order passed by the authority in the wake of the consent order in the appeals and the ground of merger can be considered on merits in the appeal. Thus the said contentions have to be left to be examined and decided in the appeal itself. However at least prima facie it appears that as per the consent terms in respect of the three flats (First Group) an amount of Rs.60,00,000/- was agreed to be refunded within a specified period as agreed failing which the respondent was entitled to execute the original order passed by the authority in the complaint. The principles as to merger are well established. However in a given case, the appellate order, as noticed earlier, can stipulate to revert back to the original order in the event of default. The question Mamta Kale page 10 of 13 ::: Uploaded on - 06/03/2021 ::: Downloaded on - 06/03/2021 22:06:31 ::: 503-sast-2576-2021 whether such default has the effect of restoring the common order or qua the complaint is also an issue which has to be dealt in the appeal before the Tribunal.
17. Thus the consideration in this appeal has to be confined to the order dated 14th December 2020 and 20th January 2021 on the point of exemption/waiver.
18. Section 43(5) of the Act which is relevant for the purpose reads thus-
Section 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, is 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.
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19. It can thus be seen that there is an embargo on the Tribunal entertaining the appeal unless the predeposit is made. The section envisages a minimum amount of 30% and maximum 100% of predeposit. It is trite that the discretion conferred on the Tribunal has to be exercised within these parameters. The condition as to predeposit has been held to be mandatory in the decisions noted by the Tribunal in the impugned order. A useful reference in this regard can also be made to the decision of this Court in M/s. Renaissance Infrastructure through its Partner and Ors. Vs. Shri Parth B. Suchak and Another 2021(1) Bom.C.R. 384.
20. Thus even where the impugned order is claimed to be without jurisdiction, it is a matter which needs to be gone into at the hearing of the appeal. Even assuming that the Tribunal can prima facie look into the challenge to the impugned order at the stage of deciding the predeposit, it can only have bearing on the quantum or percentage of the predeposit to be ordered that is from 30% to 100%. The statutory provision does not clothe the tribunal to grant 100% exemption or waiver. In other words the provision does not contemplate entertainment of the appeal without predeposit.
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21. The reliance placed on the order of the Division Bench granting liberty to seek exemption to my mind is misplaced. All that the Division bench has done is to permit the Petitioner to file an application for exemption which was to be considered on "its own merits". Thus the fact remains that such application has to be decided in accordance with section 43(5) of the Act. It is necessary to note that the tribunal has restricted the predeposit to the minimum i.e. 30%.
22. The learned counsel for the respondent submitted that this court may enhance the predeposit to 100%. The learned counsel submitted that this court can do so without the respondents filing any appeal or cross objection. For this purpose reliance is placed on the decision of this court in M/s. Renaissance Infrastructure (supra).
23. I do not find that such an issue was specifically addressed to and decided in the said decision so as to deduce any ratio on the issue of enhancement in the absence of a challenge by the complainant.
24. Thus the appeal does not raise any substantial question of law. It is accordingly dismissed with no order as to costs.
C.V. BHADANG, J.
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