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2020 Supreme(All) 1375
IN THE HIGH COURT OF ALLAHABAD
Rohit Ranjan Agarwal, J.
Buland Builtech Pvt. Ltd. - Appellants
Vs.
State of Uttar Pradesh and Ors. - Respondent
Rera Appeal No. 4 of 2020
Decided On : 26-11-2020
For the Appellant : Abhinav Prasad, Mohit Kumar and Saral Singh
For the Respondents: Krishna Mohan Asthana and Wasim Masood
Mandatory statutory deposit under Section 43(5) of the Real Estate (Regulation and Development) Act, 2016.
Headnote:
Real Estate Regulation and Development Act - Appeal against delay in possession - Section 43(5) - Section 21 - Summary of Acts and Sections: The court discussed the provisions of Section 43(5) of the Real Estate (Regulation and Development) Act, 2016, which requires the promoter to make a statutory deposit before the appeal is entertained. The court also considered the provisions of Section 21 regarding the constitution of the Authority. The judgment highlighted the requirement for the promoter to comply with the statutory deposit and the consequences of non-compliance.
Fact of the Case:
A complaint was filed due to delay in possession of a flat by the builder. The Real Estate Regulatory Authority directed for refund of entire money along with interest and imposed a penalty. The appellant filed an appeal, but failed to comply with the statutory deposit requirement under Section 43(5) of the Act.
Finding of the Court:
The court found that the appellant failed to comply with the statutory deposit requirement and also resiled from his willingness to make the deposit as per the court's order. The court dismissed the appeal due to non-compliance with the statutory provisions.
Issues: Delay in possession, non-compliance with statutory deposit requirement under Section 43(5) of the Act.
Ratio Decidendi: The court emphasized the mandatory requirement for the promoter to make the statutory deposit before the appeal is entertained, as per Section 43(5) of the Act.
Final Decision: The appeal was dismissed due to the appellant's failure to comply with the statutory deposit requirement.
ORDER :
Rohit Ranjan Agarwal, J.
1. This appeal under Section 58 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred as 'Act') has been preferred against the judgment dated 05.03.2020 passed by Real Estate Appellate Tribunal, Lucknow in Misc. Case No. 509 of 2019 and order dated 17.07.2018 passed by Real Estate Regulatory Authority, Moradabad, U.P. in Complaint Case No. 1220174612.
2. Facts in nutshell are that a complaint was filed by respondent No. 5 before U.P. Real Estate Regulatory Authority (for short 'Authority') on 19.12.2017, on the ground that respondent No. 5 had entered into a buyer builder agreement on 14.01.2014 and an allotment letter was issued, and a sum of Rs. 25 lacs was paid by respondent No. 5 to appellant and the possession of the flat was to be handed over by 14.01.2016. As possession of the flat was delayed by the builder for about 23 months, the complaint was lodged.
3. The Authority after putting the appellant to notice and hearing parties on 17.07.2018, directed for refund of entire money along with interest as being applied by the State Bank of India, M.C.L.R. + 1 % from the date of booking till refund of the amount and further imposed a penalty of Rs. 5 per square feet per month, from the date of possession till the date of refund of amount.
4. Aggrieved by this order, appellant filed an appeal before Real Estate Appellate Tribunal, Lucknow (for short "Appellate Tribunal") which was registered as Misc. Case No. 509/2019. The said appeal was presented before the Appellate Tribunal on 24.09.2019, after which number of dates were fixed granting opportunity to appellant to deposit the statutory amount as envisaged under proviso to sub-section (5) of Section 43 of the Act.
5. Despite opportunities given to appellant when no statutory deposit was made, the Appellate Tribunal proceeded to dismiss the appeal for non-compliance of provisions of Section 43(5) of the Act. The appellate tribunal also took note of the fact that on four occasions, cost was imposed upon the appellant, while granting time for complying the provisions of Section 43(5) of the Act, but the same was also not deposited by the appellant.
6. Sri Mohit Kumar, learned counsel appearing for the appellant submitted that as per calculation made by the chartered accountant of appellant-company, an amount of Rs. 4,10,550/- was deposited with the Tribunal and this fact has come in the order dated 04.02.2020 and thus, sufficient compliance has been made, the Tribunal erred in not deciding the appeal on merit and dismissing the same on ground of non-compliance of statutory provisions contained in Section 43(5) of the Act.
7. He also submitted that Section 21 of the Act envisages that the Authority shall consist of a Chairperson and not less than two whole time members to be appointed by appropriate Government, and in the present case, order passed by the regulatory authority was not in consonance with provisions of Section 21 and thus, the order stood vitiated.
8. Per contra, Sri Wasim Masood, learned counsel appearing for respondent No. 2 submitted that in view of the proviso to sub-section (5) of Section 43, statutory deposit has not been made by appellant-company and he has deposited only 30% amount of the penalty and not the total amount deposited by respondent No. 5 as contemplated under the Act.
9. When learned counsel for the appellant was confronted with this fact, he submitted that appellant is ready to deposit the entire amount with Authority in case complete detail was provided. On 02.11.2020 following order was passed:
"........Sri K.M. Asthana, learned counsel has put in appearance on behalf of respondent No. 3.
Today, when the matter was taken up, learned counsel appearing for appellant filed the affidavit of service, wherein it has been stated that steps to serve the respondent No. 5 has been taken by registered post on 27.10.2020. He has further contended that the appellant is ready to deposit the entire amount wit
