JUDGMENT :

Order on RERA Appeal Defective No. - 8 of 2022

(C. M. Application No. 1 of 2022)

This is an application for condonation of delay in filing the appeal supported with affidavit.

Heard Shri Sikhar Srivastava, learned counsel for the appellant.

The reasons indicated in the affidavit filed in support of the application are sufficient.

Accordingly, the application is allowed and delay in filing the appeal is hereby condoned.

Order on memo of main appeal

1. Heard Shri Shikhar Srivastava, learned counsel for the appellant.

2. Learned counsel for the appellant contends that the issue involved in RERA APPEAL No. 26 of 2022, RERA APPEAL No. 27 of 2022 and RERA APPEAL No. 8 of 2022 are the same. As such, the Court proceeds to hear all the appeals together. For convenience, facts of RERA APPEAL No. 26 of 2022 are being taken.

3. The instant appeal has been filed under Section 58 of Real Estate (Regulation and Development) Act, 2016 (hereinafter referred as 'Act 2016') against the order dated 09.03.2022 passed by the Uttar Pradesh Real Estate Appellate Tribunal, Lucknow (hereinafter referred as 'Tribunal') in Appeal No. 85 of 2020 in re: U.P. Awas Vikas Evam Parishad vs. Nishtha Bhatnagar.

4. The appeal has been filed by framing the following substantial questions of law which for the sake of convenience are reproduced below :

"(i) Whether a complaint by an allottee can be entertained under the provisions of Section 71 of Real Estate (Regulation and Development) Act, 2016 after the execution of a sale deed and handing over of possession by the Promoter including the appellant as defined under Section 2(zk) of the Real Estate (Regulation and Development) Act, 2016, to the allottee?

(ii) Whether delay interest on the deposited amount can be given to allottees, once they have accepted the terms of the conveyance deed and taken possession of the flat/residential unit without any protest?

(iii) Whether the allottee is entitled to interest, if he has been handed over possession of the flat with delay, but on the agreed commercial price?

(iv) Whether the allottee would be entitled to interest w.e.f. the date of enforcement of Act or from the proposed date of completion of project?"

5. Section 58 of the Act 2016 restricts the right of second appeal on the grounds specified in Section 100 of Code of Civil Procedure, 1908. Section 100 of the Code of Civil Procedure, 1908 reads as follows :

"100. Second Appeal.-

(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this Section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the Respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this Sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."

6. Thus, it is apparent that keeping in view Section 100 of the CPC read with Section 58 of the Act 2016 the second appeal can only be filed where a substantial question of law is involved meaning thereby that the existence of substantial question of law is the sine qua non for the exercise of jurisdiction under Section 58 of the Act 2016.

7. The principles for deciding when a question of law becomes a substantial question of law, have been enunciate