22nd April, 2025 (AK)

S.M.A.T. 3 of 2025 IA No: CAN 1 of 2025 YES Bank Limited Vs.

Mega Resources Limited and another Mr. Utpal Bose Ms. Suchismita Ghosh Mr. Maloy Kr. Seal ...for the appellant.

Mr. Jishnu Chowdhury Mr. Rajarshi Dutta Mr. D. Dutta ...for the respondent no.1.

Ms. Srijeeta Gupta ...for the respondent no.2.

1. Affidavit-of-service filed in court today be kept on record.

2. The present second miscellaneous appeal shall be heard on the following substantial questions of law:-

(i) Whether, in view of a registered mortgage having been created between the bank and the respondent no. 2/developer much prior to the disputed sales, the provisions of the RERA apply to the instant case in derogation of the provisions of the SARFAESI Act.

(ii) Whether, in view of the relationship between the bank and the respondent no. 2/developer being that of a creditor and a borrower within the contemplation of the SARFAESI Act and not in the capacity of promoter, allottee or real estate agent, the provisions of the RERA would apply in the present circumstances at all.

(iii) Whether both the fora below substantially erred in law in applying the principle laid down by the Hon’ble Supreme Court in the matter of the Union Bank of India vs. Rajasthan Real Estate Regulatory Authority of India and Ors. to hold that the provisions of the RERA prevail over those of the SARFAESI Act, in view of there being no conflict between the said two Acts insofar as the facts of the present case are concerned.

In Re: CAN 1 of 2025

3. We find from the impugned orders that the majority of the directives given thereunder are in the nature of restraint orders which, if we stay at the present moment, would tantamount to allowing the appeal before it is heard out on merits.

4. However, insofar as Clause (e) of the order of the first forum is concerned, by virtue of the same, the Bank has been directed to take all necessary steps to vacate the physical possession of the flat being Flat no.3B, Block-D on the third floor of the subject-matter property and deliver it to the complainant within seven days from the date of receipt of the said order of the authority through e-

mail.

5. Unless the said portion of the impugned order of the first forum is stayed, the appeal might be rendered infructuous and the appellant/Bank would suffer irreparable injury.

6. As such, we grant stay of operation of the portion of the impugned order of the first forum dated June 24, 2024, passed in Complaint No. WBRERA/COM000934, as affirmed by the appellate forum, to the extent that the Bank was directed to take all necessary steps to vacate the physical possession of the flat-in-question in favour of the complainant.

7. Accordingly, CAN 1 of 2025 is disposed of in the light of the above observations.

8. Since no affidavits have been called for, it is deemed that none of the allegations made in the application are admitted by the respondents.

9. We make it amply clear that nothing in the above order shall preclude the parties from proceeding with any litigation pending before any court/forum.

10. In view of the appearance of the respondents through the respective learned Advocates, service of notice of the appeal on the respondents is dispensed with.

11. In view of the short ambit of the appeal, the records of the fora below need not be called for at this juncture.

12. The appellant shall prepare and file the requisite number of informal paper books without comparing with the records within May 20, 2025.

13. Advance copies of the same shall be circulated on all the respondents.

14. Liberty to the parties to mention the appeal for hearing as and when the same is otherwise ready.

(Sabyasachi Bhattacharyya, J.)

(Uday Kumar, J.)