Bombay High Court
M/S Savita Homemakers Llp vs Shivanand Subhash Katakdhond on 15 July, 2025
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2025:BHC-AS:32959
911-SA(ST)-19304-2025.doc
Arjun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL (ST) NO.19304 OF 2025
M/s Savita Homemakers LLP ...Appellant
Digitally
Versus
signed by
ARJUN
ARJUN VITTHAL
KUDHEKAR
Mayur Ramchandra Akade ...Respondent
VITTHAL
KUDHEKAR Date:
2025.08.02
17:38:19
+0530
WITH
INTERIM APPLICATION (ST) NO.19308 OF 2025
IN
SECOND APPEAL (ST) NO.19304 OF 2025
Savita Homemakers LLP ...Applicant
Versus
Mayur Ramchandra Akhade ...Respondent
ALONG WITH
SECOND APPEAL (ST) NO.19312 OF 2025
M/s Savita Homemakers LLP ...Appellant
Versus
Shivanand Subhash Katakdhond ...Respondent
WITH
INTERIM APPLICATION (ST) NO.19315 OF 2025
IN
SECOND APPEAL (ST) NO.19312 OF 2025
M/s Savita Homemakers LLP ...Applicant
Versus
Shivanand Subhash Katakdhond ...Respondent
_______________________________________________________________
Mr. Kailas Deval a/w Yash Deval & Sushma Soni i/b Mohit P. Bhansali,
for the Appellant.
Ms. Padma Chinta a/w Anwar Landge & Nilofer Shaikh, for the
Respondent.
_______________________________________________________________
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CORAM: MADHAV J. JAMDAR, J.
DATED: 15 JULY 2025
JUDGMENT:
1. Heard Mr. Kailas Deval, learned Counsel appearing for the Appellant and Ms. Padma Chinta, learned Counsel appearing for the Respondent.
2. The following substantial questions of law are involved in these Second Appeals:
i. Whether the impugned Order dated 15th April 2025 passed by the learned Maharashtra Real Estate Appellate Tribunal, Mumbai ("Appellate Tribunal") completely misreads direction contained in paragraph 22(c) of the Judgment and Order dated 27th July 2023 of the Member, Maharashtra Real Estate Regulatory Authority, Mumbai ("MahaRERA")?
ii. Whether the direction contained in paragraph 22(c) of MahaRERA dated 27th July 2023 is required to be read along with paragraphs 19 and 21 of the said Order and consequently interest granted is only till the time specified in The Real Estate (Regulation and Development) Act, 2016 ("RERA") for handing over possession?
3. The facts in both these Second Appeals are almost identical and therefore both the Second Appeals are taken together for final disposal: 2 ::: Uploaded on - 02/08/2025 ::: Downloaded on - 08/08/2025 21:41:40 :::
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4. The factual position necessary for deciding the Second Appeals is as under :-
i. The Agreements executed by the present Appellant i.e. Promoter with the Respondent i.e. Allottee are dated 18th December 2018. As per the said Agreements the possession of the premises in question was to be handed over on or before 31st December 2020.
ii. The said project got delayed and therefore the possession was not handed over on or before the date specified in the agreement for handing over possession.
iii. The complaints were filed inter alia seeking interest on delayed possession before the Authority on 3rd January 2023.
iv. The Occupation Certificate (OC) was received on 11th July 2023 and the Promoter sent communication to the allottees to accept the possession of the flat on the very day i.e. on 11th July 2023.
v. As already noted the part OC was received on 11th July 2023 and the said complaints were decided by the Member, Maharashtra Real Estate Regulatory Authority, Mumbai ("Authority") on 27th July 2023.
The relevant discussion of the learned Authority is in paragraph Nos.19 and 21, which read as under :-
"19. Considering the said 6 months grace period, granted by the MahaRERA as per the earlier order, the date of possession stands extended for further 6 months period. Even on that extended date of possession the project was incomplete, and the possession was not handed over to the 3 ::: Uploaded on - 02/08/2025 ::: Downloaded on - 08/08/2025 21:41:40 ::: 911-SA(ST)-19304-2025.doc complainants. Hence, the respondent is liable to pay interest for the delayed possession to the complainants from the agreed date of possession 31-12-2020 with grace period of 6 months grace period till the actual date of possession with occupancy certificate.
21. In the present case, the MahaRERA has noticed that the respondent has uploaded a copy of part occupancy certificate (OC) dated 11-07-2023 on record of MahaRERA. On bare perusal of the said OC, it appears that the complainant's flat situated on 20 th floor is covered in the said OC. Hence, the MahaRERA sees no objection for handing over possession of the said flat to these complainants."
vi. In this background of the matter, it is necessary to set out relevant Clause (c) of the Order passed by the Authority, which reads as under:
"c. The respondent is also directed to pay interest for the delayed possession to the complainants from 30-06-2021 i.e. by adding 6 months grace period in the date of possession mentioned in the agreement for sale signed with these complainants (31-12-2020) for every month till the actual date of possession with occupancy certificate on the actual amount paid by the complainants towards the consideration of the said flat at the rate of Marginal Cost Lending Rate (MCLR) of SBI plus 2% as prescribed under the provisions of section 18 of the RERA and the Rules made thereunder."
(Emphasis added) vii. Section 19 of RERA prescribes rights and duties of allottees. Sub- Section (10) of Section 19 of RERA, reads as under :-
"19. Rights and duties of allottees.--
...
(10) Every allottee shall take physical possession of the apartment, plot or building as the case may be, within a period of two months of the occupancy certificate issued for the said apartment, plot or building, as the case may be."4 ::: Uploaded on - 02/08/2025 ::: Downloaded on - 08/08/2025 21:41:40 :::
911-SA(ST)-19304-2025.doc viii. Thus, the direction of Authority as contained in Clause (c) is required to be understood in view of the reasons given in Paragraph No.21 of the Authority to the effect that the MahaRERA sees no objection for handing over possession of the said flat to these complainants.
ix. The Allottees i.e. Respondents-Complainants took actual possession of the subject flats in or about June 2024/August 2024 i.e. after about almost 1 year period of issuance of Occupation Certificate.
5. It is necessary to consider the substantial questions of law set out herein above in view of the above factual position.
6. RERA makes elaborate provisions regarding functions and duties of promoter as well as rights and duties of allottees. Section 19 is concerning rights and duties of allottees. Section 19(10) provides that every allottee shall take physical possession of the apartment, plot or building as the case may be, within a period of two months of the occupancy certificate issued for the said apartment, plot or building, as the case may be.
7. In this particular case, admittedly the Occupation Certificate has been issued on 11th July 2023 and the Respondent-Allottee has been informed to take possession on the very day i.e. on 11th July 2023. It is also fact that actual possession has been taken by the Allottees in June 2024/August 2024.
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8. Thus, it is clear that the Allottee is entitled for interest only upto 11th August 2023 as the Occupation Certificate has been received on 11th July 2023 and intimation regarding the same has been given to the Allottee on 11th July 2023.
9. It is the submission of learned Counsel appearing for the Respondent that the Appellants were insisting that a declaration to be signed by Allottees to the effect that they would be withdrawing all the complaints and till that time the Appellant-Promoter refused to handover the possession of the said flats. However, the Respondent is not able to substantiate the said contention by relying on any material. If the Promoter refuses to handover possession of the flat on the ground that Allottee shall give undertaking that all the complaints would be withdrawn, then in that case the Competent Authority could have passed the order directing payment of interest till the actual date of possession. However, nothing has been pointed out by learned Counsel appearing for the Respondent that the said contention was raised before the learned Authority and learned Authority passed the order in that context.
10. In fact, in this case the direction by the Competent Authority directing payment of interest till handing over possession will have to be read in the context of discussion of the Competent Authority as contained in paragraphs 19 and 21 of the order of the Authority read 6 ::: Uploaded on - 02/08/2025 ::: Downloaded on - 08/08/2025 21:41:40 ::: 911-SA(ST)-19304-2025.doc with Section 19(10) of RERA.
11. It is admitted position that the interest upto 11th July 2023 has been deposited before the RERA Authority.
12. Thus, in view of the said position, it is the submission of Mr. Deval, learned Counsel appearing for the Appellant that sufficient compliance of proviso to Section 43(5) is made by the Appellant. The said Section 43(5) reads as under:
"43. Establishment of Real Estate Appellate Tribunal.--
...
(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."
(Emphasis added) Thus, what is contemplated by proviso is that where a promoter files an appeal with the Appellate Tribunal, it shall not be entertained without the promoter having deposited with the Appellate Tribunal the total amount to be paid to the allottee including interest and compensation imposed on him, if any.
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13. In this particular case, it is admitted position that till the date of receipt of Occupancy Certificate interest has been deposited before the Authority.
14. Ms. Padma Chinta, learned Counsel appearing for the Respondent has relied on the decision of the Supreme Court in Newtech Promoters & Developers (P) Ltd. v. State of U.P . 1 and more particularly on Paragraph Nos.137 and 138, which read as under:
"137. It is indeed the right of appeal which is a creature of the statute, without a statutory provision, creating such a right the person aggrieved is not entitled to file the appeal. It is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in all judicial and quasi-judicial litigations and it is always be circumscribed with the conditions of grant. At the given time, it is open for the legislature in its wisdom to enact a law that no appeal shall lie or it may lie on fulfilment of precondition, if any, against the order passed by the Authority in question.
138. In our considered view, the obligation cast upon the promoter of pre-deposit under Section 43(5) of the Act, being a class in itself, and the promoters who are in receipt of money which is being claimed by the home buyers/allottees for refund and determined in the first place by the competent authority, if legislature in its wisdom intended to ensure that money once determined by the Authority be saved if appeal is to be preferred at the instance of the promoter after due compliance of pre-deposit as envisaged under Section 43(5) of the Act, in no circumstance can be said to be onerous as prayed for or in violation of Article 14 or Article 19(1)(g) of the Constitution of India."
(Emphasis added) Thus, what has been held in Newtech Promoters (supra) is that compliance of pre-deposit as envisaged under Section 43(5) of the 1 2021 SCC OnLine SC 1044 8 ::: Uploaded on - 02/08/2025 ::: Downloaded on - 08/08/2025 21:41:40 ::: 911-SA(ST)-19304-2025.doc RERA, in no circumstances can be said to be onerous or in violation of Articles 14 or 19(1)(g) of the Constitution of India.
15. In fact, in this case, the question is how much amount is directed to be paid by the Authority towards interest which is required to be deposited for the purpose of compliance of Section 43(5) of the RERA and it is not even the submission of the Appellant that no per-deposit is required to be made. In fact, it is the submission of the Appellant that as the interest upto the date of Occupation Certificate is deposited Section 43(5) of RERA has been complied with.
16. Ms. Padma Chinta, learned Counsel appearing for the Respondent has also relied on the decision of the Punjab and Haryana High Court in Janta Land Promoters Private Limited v. Union of India 2 and more particularly on Paragraph No.15 of the same, which reads as under:
"15. The constitutional validity of the proviso to Section 43(5) of the Act has been upheld by a decision dated 23 rd September 2020, a co-ordinate Division Bench ('DB') of this Court in CWP No. 15205 of 2020 (O&M) (Lotus Realtech Pvt. Ltd. v. State of Haryana). This Court has perused the decision in Lotus Realtech Pvt. Ltd. (supra), and finds that it has set out the relevant portions of the recent decision of the Supreme Court in Technimont Pvt. Ltd. v. State of Punjab, AIR 2019 SC 4489, and has held as under:
"14. The law laid down by the Supreme Court in the aforesaid decisions is that the right of appeal is the creature of a statute and therefore, is and can be made conditional upon fulfilling certain conditions by the statute itself and therefore, any requirement of fulfillment of a condition imposed by the statute itself before a person can avail the remedy of appeal is a valid piece of legislation. It has 2 2020 SCC OnLine P&H 2030 9 ::: Uploaded on - 02/08/2025 ::: Downloaded on - 08/08/2025 21:41:40 ::: 911-SA(ST)-19304-2025.doc further been held that the Appellate Authority does not have the inherent powers to waive the limitation or precondition prescribed by the statute for filing an appeal as the inherent incidental or implied powers vested in the Appellate Authority cannot be invoked to render a statutory provision nugatory or meaningless. The Supreme Court has also held that in genuine cases of hardship, an aggrieved person can take recourse to the remedy of filing a writ petition under Article 226 of the Constitution of India. However, even in such genuine cases of hardship, no relief of waiver of pre-deposit can be granted by the Appellate Authority. The challenge to the impugned provision of Section 43(5) proviso of the Act of 2016 on this ground, being meritless, is therefore, rejected." "
(Emphasis added) The Division Bench of the Punjab and Haryana High Court has relied on the various Judgments and held that right of appeal is the creature of a statute and therefore can be made conditional upon fulfilling certain conditions by the statute itself and therefore any requirement of fulfillment of a condition imposed by the statute itself before a person can avail the remedy of appeal is a valid piece of legislation and therefore rejected the challenge to Section 43(5) proviso of the RERA.
17. In this particular case, as noted herein above the only dispute is the quantum of amount which is required to be deposited in terms of proviso to Section 43(5). Accordingly, both these Judgments have no relevance to the substantial questions of law raised in these Second Appeals.
18. Ms. Padma Chinta, learned Counsel for the Respondent has also relied on the decision of the Allahabad High Court in Radicon 10 ::: Uploaded on - 02/08/2025 ::: Downloaded on - 08/08/2025 21:41:40 ::: 911-SA(ST)-19304-2025.doc Infrastructure and Housing Pivate Limited v. Karan Dhyani 3 and more particularly on Paragraph No.24 of the same, which read as under:
"24. At this stage, the learned counsel for the appellant submitted that the impugned order has been passed mechanically and therefore, cannot be sustained in view of the provisions contained in proviso to Section 43(5). The Court has perused the proviso. Considering the question raised by the learned counsel for the appellant at the hearing stage, its importance generally, as also, to the facts of the case and, in view of the consent of the learned counsel for the opposite party that this question be also framed and decided, an additional substantial question of law is framed as under:--
"Whether the appellate tribunal while passing an order in terms of the proviso to sub-section 5 of Section 43 has any discretion to allow the deposit of a lesser portion of the total amount to be paid to the allottee including interest and compensation imposed on him or the entire amount, as such has to be deposited without any discretion in this regard with the appellate tribunal to reduce the same and whether in view of the use of the word determined by the appellate tribunal in the first part of the proviso is indicative of requirement of application of mind by the appellate tribunal?"
26. The Court is of the view that as per the said proviso the appellate tribunal can require either the penalty or portion thereof or the total amount to be paid to the allottee including interest and compensation imposed on him to be deposited before the appeal is heard for being entertained, i.e., for being admitted for consideration or it can require the promoter appellant to deposit both, meaning thereby, the penalty as well as the total amount referred hereinabove. With regard to the penalty the appellate tribunal has to "determine' whether 30% of the penalty imposed or such a higher percentage as it may determine is to be deposited, but when it comes to the deposit of the total amount to be paid to the allottee including interest and compensation under the orders of the regulatory authority or adjudicating officer, no such discretion based on a "determination' appears to have 3 2019 SCC OnLine All 4454 11 ::: Uploaded on - 02/08/2025 ::: Downloaded on - 08/08/2025 21:41:40 ::: 911-SA(ST)-19304-2025.doc been vested in the Appellate Tribunal by the legislature. The word "as the case may be' following the words "or with both' are a reference to the deposit either of penalty or the total amount or both as the facts of the case may require. These words have no independent application to the second part of the proviso requiring the deposit of the total amount. The object appears to be to protect the interest of the consumer once an adjudication had been made by the Regulatory Authority. In this view of the matter the order of the Tribunal passed in the present case, where no penalty has been imposed upon the appellant under Chapter-VIII of the Act, 2016, to deposit the total amount imposed by the Regulatory Authority, does not suffer from any error. As regards the contention of the appellant that the word penalty mentioned in the proviso should be used in general terms to include any monetary condition imposed by the Regulatory Authority in its judgment, it is not acceptable for the simple reason that a specific provision has been made for the imposition of penalty under the Act, 2016 in Chapter-VIII with the heading "Offences, Penalty and Adjudication'. Section 60, 61, 62, 63, 64, 65, 66, 67 and 68 relate to penalties which can be imposed under the Act. These are penalties with reference to specific acts or omissions. The words "at least 30% penalty" in the proviso to Section 43(5) obviously refer to penalties mentioned under Chapter-VIII of the Act, 2016. Learned counsel for the appellant does not dispute the fact that no penalty has been imposed upon the appellant under these provisions, therefore to say that the condition imposed by the Regulatory Authority are penal in nature, as such, the first part of the proviso to sub-section 5 of Section 43 would apply amounts to strained reasoning. It would amount to reading something into the provision which the legislature has not provided nor intended. This plea is rejected. Question no. 4 framed above, is answered accordingly."
(Emphasis added) A learned Single Judge of the Allahabad High Court was considering the substantial question of law whether the Appellate Tribunal while passing an order in terms of the proviso to Sub-Section (5) of Section 43 has any discretion to allow the deposit of a lesser portion of the total 12 ::: Uploaded on - 02/08/2025 ::: Downloaded on - 08/08/2025 21:41:40 ::: 911-SA(ST)-19304-2025.doc amount to be paid to the allottee including interest and compensation imposed on him or the entire amount, as such has to be deposited without any discretion. It has been held that when it comes to the deposit of the total amount to be paid to the allottee including interest and compensation under the orders of the regulatory authority or adjudicating officer, no such discretion based on a determination appears to have been vested in the Appellate Tribunal by the legislature.
19. However, in the present case, as already noted herein above, the interest to which the Respondent-Allottee is entitled as per the provisions of the RERA particularly in view of Section 19(10) read with Section 18 is till the date Occupancy Certificate is issued and 2 months thereafter. Of course, if for some other reason like as contended by the Respondent that the Appellant wanted declaration that the Respondent would withdraw all the complaints then only the possession would be given, then in that case it cannot be said that the possession has been offered by the Promoter and if interest in that case is awarded till handing over actual possession by the promoter then the Authority could direct payment of interest till handing over possession. However, as noted herein above, the Respondent has not pointed out any such requisition by the Promoter. Even no submissions were made before the Authority concerning the same.
20. In these Second Appeals it is an admitted position that the 13 ::: Uploaded on - 02/08/2025 ::: Downloaded on - 08/08/2025 21:41:40 ::: 911-SA(ST)-19304-2025.doc Appellant has deposited with the Authority the interest upto the date of Occupancy Certificate. The direction of the learned Authority as contained in Clause (c) of the operative order has to be read with discussion in paragraph 21 of Authority, particularly to the effect that the MahaRERA sees no objection for handing over possession of the said flat to these complainants. Thus, in effect learned Authority directed payment of interest till handing over actual possession is date of OC and additional 2 months as contemplated under Section 19(10) of RERA. As already noted herein above, the Appellant has already deposited before the learned Appellate Tribunal interest for delayed possession upto the date OC and therefore to comply with Section 43(5) the Appellant has to deposit interest for a period of 2 months. The same shall be done within a period of 4 weeks from today. Thus, in the peculiar facts and circumstances of this case, it has been held that by making such payment of interest for said 2 months there is compliance of Section 43(5) of the RERA.
21. Thus, in the facts and circumstances of this case, it can be said that, if the Appellant deposits further interest of 2 months i.e. from 11th July 2023 i.e. date of OC to 11th September 2023, then the requirement of Section 43(5) is complied with.
22. It is made very clear that the observations made in this Order are only concerning amount which is directed to be deposited in terms of 14 ::: Uploaded on - 02/08/2025 ::: Downloaded on - 08/08/2025 21:41:40 ::: 911-SA(ST)-19304-2025.doc proviso to Section 43(5) of RERA.
23. In view of the above discussion, the Second Appeals are partly allowed by directing that the Appellant shall deposit interest for additional period of 2 months i.e. from 11th July 2023 to 11th September 2023 in addition to the interest which admittedly has been deposited by the Appellant before the learned Authority i.e. upto 11th July 2023. The same to be done within 4 weeks.
24. It is specifically clarified that the observations in this Order are only for the purpose of determining the amount as contemplated under proviso to Sub-Section (5) of Section 43 of the RERA.
25. All contentions of both the parties on merits are expressly kept open to be agitated in the Appeal pending before the learned Appellate Tribunal.
26. Accordingly, both the Second Appeals are disposed of in above terms with no order as to costs.
27. As the Second Appeals are disposed of, nothing survives in the Interim Applications and the same are also disposed of.
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