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2025 Supreme(HP) 422
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
JYOTSNA REWAL DUA, J.
Himland Executive Residences (Himland Housing (P) Ltd.) - Appellant
Versus
Arun Kumar Sharma and others - Respondents
MSA No.3 of 2022
Decided on : 06-05-2025
For the Appellant :Mr. N.K. Bhalla, Advocate.
For the Respondents:Mr. Vijay K. Arora, Senior Advocate with Ms. Godawari, Ms. Aakriti Arora, Ms. Aastha Kohli, Mr. Hitansh Raj and Mr. Gaurav Kumar, Advocates
Compliance with statutory provisions is mandatory for the maintainability of an appeal under the Real Estate (Regulation and Development) Act, 2016.
Headnote:
(A) Real Estate (Regulation and Development) Act, 2016 - Sections 43(1), 43(5), and 44 - Appeal against RERA order - Appellant failed to comply with statutory requirements for appeal, including pre-deposit of penalty - Appellate Tribunal dismissed appeal for non-compliance with prior court directions and statutory provisions. (Paras 1, 2, 4, 5)
(B) Compliance with statutory provisions - The court emphasized that compliance with the provisions of the Act is mandatory for the maintainability of the appeal. (Paras 2, 4)
Facts of the case:
The appellant, a real estate developer, was directed by RERA to refund a complainant's payment along with interest due to non-delivery of possession. The appellant's appeal was dismissed for failing to comply with pre-deposit requirements.
Findings of Court:
The Appellate Tribunal correctly dismissed the appeal due to the appellant's non-compliance with the statutory requirements and previous court orders.
Issues: The main issues were whether the appellant complied with the statutory requirements for appeal and the implications of non-compliance.
Ratio Decidendi: The court held that the appellant's failure to comply with the statutory pre-deposit requirement under Section 43(5) of the Act justified the dismissal of the appeal.
Result: Appeal dismissed.
JUDGMENT :
Jyotsna Rewal Dua, J.
This miscellaneous second appeal has been preferred under Section 58 of the Real Estate (Regulation and Development) Act, 2016 (in short ‘the Act’) against the order dated 13.05.2022 passed by the learned Haryana Real Estate Appellate Tribunal (exercising power conferred by Section 43(1), (2) and (4) of the Act for Himachal Pradesh also), Chandigarh. Under the impugned order, learned Appellate Tribunal did not entertain the appeal filed by the appellant due to violation of the directions issued by this Court in M/s Himland Housing Private Limited Versus State of Himachal Pradesh and others,
2. Following facts emerge from the joint submissions made for the parties:-
2(i). The appellant-Company is engaged in the business of Real Estate Development. For developing group housing project over the land situated in Damrog, District Solan, HP, the appellant got its project registered under the provisions of the Act. The said registration of the project was valid till 10.05.2024. According to the appellant, its aforesaid housing project consisted of three blocks, i.e. Blocks ‘A’, ‘B’ and ‘C’; 80% of the construction in Block-A was completed by constructing 36 flats; Construction of Blocks-B and C could not start.
2(ii). Respondent No.1 lodged a complaint on 19.07.2021 before Real Estate Regulatory Authority (RERA), Himachal Pradesh with the allegation that he had booked a specific flat in Block-A and had paid an advance amount of Rs.66,539/- on 30.07.2008 by cheque at the time ofsubmitting the application form. That he had made total payment of Rs.6,66,539/- against total cost of Rs.13,30,780/-. The remaining amount was to be paid at the time of offer of possession by the appellant. Complainant’s grievance was that possession had not been handed over to him. He sought refund of the amount paid by him alongwith interest, besides claiming compensation under several heads.
2(iii). RERA, Himachal Pradesh adjudicated the complaint on 28.12.2021 and issued following directions:-
“22. Relief:-
Keeping in view the abovementioned facts, this Authority in exercise of power vested in under various provisions of the Act issues the following orders/directions:
“i. The complaint is allowed and the Respondent promoters are directed to refund a sum of Rs. Six Lakh Sixty Six Thousand Five hundred and Thirty Nine (Rs. 6,66,539/-) along with interest at the SBI highest marginal cost of lending rate plus 2% as prescribed under Rule 15 of the Himachal Pradesh Real Estate (Regulation & Development) Rules, 2017. The present highest MCLR of SBI is 7.3 % hence the rate of interest would be 7.3%+2% i.e. 9.3%. It is clarified that the interest shall be payable from the dates on which different payments were made by the Complainant to the respondent till date the amount and interest thereon is refunded.
ii. The refund along with interest is to be paid by the respondent promoter to the complaint within 60 days from the date of this order.
iii. That in view of Section 61 of the Act which prescribes the maximum penalty that could be imposed for the contravention of any other provision of the Act other than Section 3 and 4, as five percent of the total cost of the project. The Authority, considering all facts of the case, deems appropriate to impose a penalty of Rs. Three Lakh in case the respondent promoter fails to comply with the present order/directions passed by this Authority within stipulated period of sixty days.
iv. It is further ordered that no withdrawal from the bank account of the projects to be made till payment as ordered is made to the complainant and penalty is deposited into the account of Authority. Further, there shall not be any alienation of any movable and immovable assets of this project till compliance of this order.
v. The respondent promoter is directed to intimate the details of the
