The court emphasized that the possession letter cannot take precedence over the registered agreement for sale, and any complaint in relation to alleged default would only accrue after the actual inaction is caused by the petitioner after the agreed date for handing over possession and execution of the sale deed.

JUDGMENT

Sharad Kumar Sharma, J. - This matter is heard through video conferencing.

2. Heard Shri Rajat Mittal, Advocate for the petitioner and Shri Nikhil Singhal, Advocate for the respondent.

3. The respondent on 07.02.2019 had filed a complaint before the Chairperson, Real Estate Regulatory Authority, Dehradun therein praying for grant of penalty and interest in respect of the premises, which has been ascertained, in accordance with the description given therein and also for the remittance of the interest, as prayed in the said application. The said complaint preferred on 07.02.2019; had been allowed and consequent thereto, the petitioner approached the Appellate Tribunal availing his remedy under Section 43 of the Real Estate (Regulation and Development) Act, 2016. In accordance to the proviso contained to subSection 5 of Section 43 of the Act, it contemplates a pre condition that prior to the entertainment of an appeal which is before the Appellate Tribunal, the appellant has to deposit at least 30% of the amount of penalty, which has been imposed by the Regulatory Authority. In furtherance thereto when the petitioner approached the Appellate Tribunal by filing an appeal, the Appellate Tribunal has passed by the impugned order dated 09.07.2020 which is under challenge in the present petition thereby directing the petitioner appellant i.e. developer to deposit a sum of Rs. 16.12 lakh, which is equivalent to the 50% of the interest levied by the impugned order under challenge before the Appellate Tribunal determined at the rate of annual interest of 9.55 on Rs. 150 Lakh for the period from April, 2018 to July, 2020.

4. Learned counsel for the respondent supports the impugned order and contends that since it is an appeal, preferred under Section 43 of the Act of 2016 and pre-condition of the proviso to sub section 5 is imperative and is mandatory for the purpose of entertaining the appeal preferred by the petitioner herein before the Real Estate Appellate Tribunal, no apparent error, as such could be said to have been committed by the Tribunal by directing to the petitioner / appellant to deposit the amount, as it is well within the frame work of law.

5. On the contrary, learned counsel for the petitioner would submit that the sole controversy would revolve around as to in what manner the alleged possession certificate dated 18.12.2017, has been issued vis- -vis its comparative reading with the registered agreement for sale dated 18.12.2017, pertaining to the aspect with regard to handing over of the possession of the disputed property is concerned that is to be determined. What he wants to submit is that in accordance with Clause I of the agreement for sale dated 18.12.2017, in fact the possession of the shops, which was agreed to be sold would be remitted to the respondent complainant on or before 10.06.2021. He further submits that in accordance with Clause 6, the actual physical possession, as per the said agreement which was agreed to be sold would be handed over on the execution of the sale deed. Relevant clauses are quoted here under:-

"1. That in pursuance of the said agreement and in consideration of Rs. 2,10,000,00 (Two Crore Ten Lakh only) against which the second party has paid a sum of Rs. 1,50,00,000/- (One Crore Fifty Lakh) to the first party in the following manner:

Rs. 15,00,000/- vide cheque no. 016664 dated 11.12.2017, Yes Bank, Rajpur Road, Dehradun.

Rs. 5,00,000/- vide cheque no. 508858 dated 11.12.2017, Yes Bank, Rajpur Road, Dehradun.

Rs. 25,00,000/- vide cheque no. 143688 dated 11.12.2017, Yes Bank, Rajpur Road, Dehradun.

Rs. 35,00,000/- vide cheque no. 096999 dated 11.12.2017, Yes Bank, Rajpur Road, Dehradun.

Rs. 30,00,000/- vide cheque no. 900599 dated 11.12.2017, Yes Bank, Rajpur Road, Dehradun.

Rs. 40,00,000/- vide cheque no. 798766 dated 11.12.2017, Yes Bank, Rajpur Road, Dehradun.

and the balance sale consideration Rs. 60,00,000/- (Sixty Lakh only) will be paid by the second party to the first pa