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2018 Supreme(All) 1943
IN THE HIGH COURT OF ALLAHABAD
Sanjay Harkauli, J.
M/s Capital Infra projects Pvt. Ltd. Throu. Authorised Signatory – Appellant
Versus
Sri Surinder Bhaya – Respondent
Second Appeal No. - 254 of 2018
Decided On : 09-10-2018
For the Appellant : Himanshu Hemant Gupta
For the Respondent: Pratul Srivastava
The principle of exercising discretion in favor of hearing rather than shutting it out when there is a minimal delay in filing an appeal.
Headnote:
Real Estate Regulation - Appeal Delay - The court set aside the order of the Real Estate Appellate Tribunal and remanded the matter back to re-hear the parties on the application under section 44(2) of the Real Estate (Regulation and Development) Act 2016.
Fact of the Case:
The appellant filed an appeal before the Real Estate Appellate Tribunal, U.P., Lucknow, which was rejected due to discrepancies in the certified copy of the order and the demand draft. The appellant made efforts to rectify the discrepancies and filed the appeal with a delay of six days.
Finding of the Court:
The court found that the delay in filing the appeal was not sufficiently explained, but considered the circumstances and concluded that the view taken by the Appellate Tribunal was harsh. The court set aside the order and remanded the matter back to the Appellate Tribunal for re-hearing.
Issues: The main issue was the delay in filing the appeal and the rejection of the application for condonation of delay by the Real Estate Appellate Tribunal.
Ratio Decidendi: The court considered the principle that discretion should be exercised in favor of hearing rather than shutting it out when there was a minimal delay in filing the appeal and the appellant was making efforts to rectify the discrepancies.
Final Decision: The court set aside the order of the Real Estate Appellate Tribunal and remanded the matter back for re-hearing, ultimately disposing of the appeal.
1. Learned counsel for the appellant is present. Learned counsel for the respondent caveator is also present.
2. Learned counsel for the parties state that this matter be heard and finally decided at the admission stage and they are both prepare to argue accordingly.
3. Heard learned counsel for the parties and perused record.
4. The U. P. Real Estate Regulatory Authority had decided the dispute between the parties vide order dated 07.04.2018.
5. The present appellant aggrieved by the aforesaid order preferred an appeal before the Real Estate Appellate Tribunal, U.P., Lucknow under section 44 of the Real Estate (Regulation and Development), Act 2016 on 04.06.2018. The office of the Appellate Tribunal reported that the appeal was discrepant in the following terms:
1. The certified copy of order dated 07.04.2018 was not issued by the Real Estate Regulatory Authority, Hapur, and was instead issued by the Tehsildar, Hapur, Pilkhuwa Development Authority, Hapur;
2. The demand draft of Rs.1000/- was prepared in the name of 'Chairman, Real Estate Appellate Tribunal, U.P. Lucknow' instead of "The Real Estate Appellate Tribunal, U.P., Lucknow".
6. Accordingly, the appeal was not accepted and was returned to be presented after removing the said discrepancies.
7. The limitation prescribed for appeal under section 44 (2) of the aforesaid Act (Act No.16 of 2016) is two months.
8. The appellant immediately approached the office of the nominated authority/Vice Chairman, Hapur Pilkhuwa Development Authority for issuance of certified copy of order dated 07.04.2018 on 06.06.2018. Upon inquiry, it was informed that the records relating to the matter had been forwarded to the Real Estate Regulatory Authority at Lucknow. Accordingly, the appellant visited the office of Real Estate Regulatory Authority at Lucknow on 08.06.2018. There, he was informed that the file relating to the matter had been received in that office on 08.06.2018 and a certified copy would be issued only upon verification of the record received. The certified copy was issued on 11.06.2018. The deponent also got the demand draft of statutory fees prepared on 11.06.2018 itself and thereafter preferred the appeal before the Real Estate Appellate Tribunal, Lucknow on 12.06.2018.
9. The learned Appellate Tribunal after considering the circumstances, came to the conclusion that the delay occasioned in filing of the appeal was not sufficiently explained and accordingly, application for condonation of delay was rejected.
10. Aggrieved from the order of the Appellate Tribunal, the present second appeal has been filed.
11. The limitation in the matter extended up to 06.06.2018 while the appeal was filed on 12.06.2018 with a delay of only six days.
12. Initially, the appeal was presented in time and it was for the reason of removing the discrepancies that the period of additional six days went bye. During this period of six days, the appellant has shown that he was running from pillar to post to remove the discrepancies and in the circumstances, the view taken by the learned Real Estate Appellate Tribunal, Lucknow appears to be harsh. It can also be seen that it is settled principle of law that discretion should be exercised in favour of hearing rather than that shutting it out when there was a delay of only five days in filing the appeal and the appellant was making the best efforts to remove the discrepancies as pointed out by the office of the Appellate Tribunal and immediately thereafter he with all promptitude took necessary steps to file the appeal without any inordinate delay. The circumstances should have been considered in its proper perspective by the Appellate Tribunal.
13. It is in the aforesaid circumstances that the impugned order deserves to be set aside.
ORDER
1. The order passed by the Chairman, Real Estate Appellate Tribunal, U.P. Lucknow dated 03.08.2018, filed along with the memo of appeal, is hereby set aside. The matter is remanded back to the learned Real Estate Appellate
