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NC: 2023:KHC:20901
RERA.A No. 20 of 2023
C/W RERA.A No. 25 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE G.NARENDAR
AND
THE HON'BLE MR JUSTICE C.M. POONACHA
RERA APPEAL NO. 20 OF 2023
C/W
RERA APPEAL NO. 25 OF 2023
IN RERA.A.NO. 20/2023
BETWEEN:
1.
M/S SOFTWARE ENGINEERS AND DOCTORS
HOUSING CO-OPERATIVE SOCIETY LTD.,
(A SOCIETY REGISTERED
UNDER THE KARNATAKA
CO-OPERTIVE SOCIETIES ACT, 1959),
EARLIER AT NO.514,
2ND CROSS, 5TH MAIN,
AMARJYOTHI LAYOUT,
(WEST WING), DOMLUR,
BANGALORE - 560071.
PRESENTLY HAVING ITS
OFFICE AT NO.422, 1ST FLOOR,
5TH MAIN, AMARJYOTHI LAYOUT,
(WEST WING), DOMLUR,
BANGALORE-560071,
REP. BY ITS SECRETARY
SRI. G.C. NAGARAJA.
Digitally signed
by NANDINI D
Location: High
Court of
Karnataka
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NC: 2023:KHC:20901
RERA.A No. 20 of 2023
C/W RERA.A No. 25 of 2023
2.
K. HARIKRISHNA,
SON OF LATE SRI. K.C. DEVE GOWDA,
AGED ABOUT 50 YEARS,
3.
G.C. NAGARAJA,
SON OF SRI CHIKKAPPA G.B.,
AGED ABOUT 40 YEARS,
4.
SMT. CHARULATHA JAIN,
WIFE OF LATE SRI P. SANJEEV,
AGED ABOUT 53 YEARS,
5.
K.V. SRINADHA VARMA,
SON OF SRI K. VENKATESHWARA RAJU,
AGED ABOUT 46 YEARS,
2 TO 5 EARLIER AT NO.514,
2ND CROSS, 5TH MAIN,
AMARJYOTHI LAYOUT,
(WEST WING), DOMLUR,
BANGALORE - 560071.
PRESENT ADDRESS:
NO.422, 1ST FLOOR, 5TH MAIN,
AMARJYOTHI LAYOUT,
(WEST WING), DOMLUR,
BANGALORE - 560071.
…APPELLANTS
(BY SRI. C G GOPALASWAMY., ADVOCATE)
AND:
1.
THE KARNATAKA REAL ESTATE
REGULATORY AUTHORITY,
OFFICE AT: NO.1/14, 2ND FLOOR,
SILVER JUBILEE BLOCK,
UNITY BUILDING BACKSIDE,
CSI COMPOUND,
3RD CROSS, MISSION ROAD,
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NC: 2023:KHC:20901
RERA.A No. 20 of 2023
C/W RERA.A No. 25 of 2023
BENGALURU-560027.
REPRESENTED BY ITS
SECRETARY.
2.
MS. ANANDITHA AJAY,
DAUGHTER OF SRI AJAY KUMAR,
AGED ABOUT 27 YEARS,
RESIDING AT 485 B,
16TH CROSS,
IDEAL HOMES TOWNSHIP,
RAJARAJESHWARINAGAR,
BANGALORE-560098.
…RESPONDENTS
(BY SRI. DEVAIAH I S., ADV. FOR R1,
SRI. R.ANIL KUMAR, ADV. FOR R2.)
THIS RERA.A IS FILED UNDER SECTION 58 (1) OF THE
REAL ESTATE (REGULATION AND DEVELOPMENT) ACT, 2016,
PRAYING TO CALL FOR RECORDS IN APPEAL NO. FR NO. (K-
REAT) 34/2023 IN THE REAL ESTATE APPELLATE TRIBUNAL AT
BENGALURU AND SET ASIDE THE ORDER DATED FEBRUARY
10, 2023, IN APPEAL NO. FR NO. (K-REAT) 34/2023 IN THE
REAL ESTATE APPELLATE TRIBUNAL AT BENGALURU ETC.
IN RERA.A.NO. 25/2023
BETWEEN:
1.
M/S SOFTWARE ENGINEERS AND DOCTORS
HOUSING CO-OPERATIVE SOCIETY LTD.,
(A SOCIETY REGISTERED
UNDER THE KARNATAKA
CO-OPERTIVE SOCIETIES ACT, 1959),
EARLIER AT NO.514,
2ND CROSS, 5TH MAIN,
AMARJYOTHI LAYOUT,
(WEST WING), DOMLUR,
BANGALORE - 560071.
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NC: 2023:KHC:20901
RERA.A No. 20 of 2023
C/W RERA.A No. 25 of 2023
PRESENTLY HAVING ITS
OFFICE AT NO.422, 1ST FLOOR,
5TH MAIN, AMARJYOTHI LAYOUT,
(WEST WING), DOMLUR,
BANGALORE-560071,
REP. BY ITS SECRETARY
SRI. G.C. NAGARAJA.
2.
K. HARIKRISHNA,
SON OF LATE SRI. K.C. DEVE GOWDA,
AGED ABOUT 50 YEARS,
3.
G.C. NAGARAJA,
SON OF SRI CHIKKAPPA G.B.,
AGED ABOUT 40 YEARS,
4.
SMT. CHARULATHA JAIN,
WIFE OF LATE SRI P. SANJEEV,
AGED ABOUT 53 YEARS,
5.
K.V. SRINADHA VARMA,
SON OF SRI K. VENKATESHWARA RAJU,
AGED ABOUT 46 YEARS,
2 TO 5 EARLIER AT NO.514,
2ND CROSS, 5TH MAIN,
AMARJYOTHI LAYOUT,
(WEST WING), DOMLUR,
BANGALORE - 560071.
PRESENT ADDRESS:
NO.422, 1ST FLOOR, 5TH MAIN,
AMARJYOTHI LAYOUT,
(WEST WING), DOMLUR,
BANGALORE - 560071.
…APPELLANTS
(BY SRI. C G GOPALASWAMY., ADVOCATE)
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NC: 2023:KHC:20901
RERA.A No. 20 of 2023
C/W RERA.A No. 25 of 2023
AND:
1.
THE KARNATAKA REAL ESTATE
REGULATORY AUTHORITY,
OFFICE AT: NO.1/14, 2ND FLOOR,
SILVER JUBILEE BLOCK,
UNITY BUILDING BACKSIDE,
CSI COMPOUND,
3RD CROSS, MISSION ROAD,
BENGALURU-560027.
REPRESENTED BY ITS SECRETARY.
2.
AJAY KUMAR,
SON OF LATE SRI P.V.SIVAN NAIR,
AGED ABOUT 53 YEARS,
RESIDING AT 485 B,
16TH CROSS, IDEAL HOMES TOWNSHIP,
RAJARAJESHWARINAGAR,
BANGALORE-560098.
…RESPONDENTS
(BY SRI. DEVAIAH I S., ADV. FOR R1,
SRI. R.ANIL KUMAR, ADV. FOR R2.)
THIS RERA.A IS FILED UNDER SECTION 58 (1) OF THE
REAL ESTATE (REGULATION AND DEVELOPMENT) ACT, 2016,
PRAYING TO CALL FOR RECORDS IN APPEAL NO. FR NO. (K-
REAT) 33/2023 IN THE REAL ESTATE APPELLATE TRIBUNAL AT
BENGALURU AND SET ASIDE THE ORDER DATED FEBRUARY
10, 2023, IN APPEAL NO. FR NO. (K-REAT) 33/2023 IN THE
REAL ESTATE APPELLATE TRIBUNAL AT BENGALURU ETC.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, G.NARENDAR J., DELIVERED THE FOLLOWING:
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NC: 2023:KHC:20901
RERA.A No. 20 of 2023
C/W RERA.A No. 25 of 2023
Heard the learned counsel for the appellants, learned
counsel for the Karnataka Real Estate Regulatory Authority
and the learned counsel for private respondent in both the
appeals.
The appeals are canvassed on a short point that
the appellate authority i.e., Karnataka Real Estate
Appellate Tribunal, Bengaluru, erred in rejecting the
appeals preferred by the appellants, for non-deposit of the
entire sum ordered by way of refund, interest and
compensation, questioning the correctness of the order of
the regulatory authority.
Learned counsel for the appellants would
contend that in terms of sub-section (5) of Section 43 of
the Real Estate (Regulation and Development) Act, 2016,
(hereinafter referred to as ‘the Act, 2016’ for short), it
would suffice and meet the rigors of law if the promoter
deposits 30% of the penalty amount or such higher
amount as may be directed by authority.
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Per contra, learned counsel for the private
respondents would contend that in terms of the judgment
rendered in the case of 'NEWTECH PROMOTERS AND
DEVELOPERS PVT. LTD. Vs. STATE OF UP AND
OTHERS1, the Hon’ble Apex Court has laid down the law
that insofar as the penalty alone, a discretion is vested in
the authority to entertain an appeal on deposit of 30% of
the amount imposed as penalty or such higher sum as
may be determined by the authority. On the other hand,
he would contend that in the event, there is an order to
refund the consideration amount deposited by the allottee
then in such a circumstance, the promoter is required to
deposit the entire amount ordered to be refunded
including the interest and compensation that may also be
awarded. In this regard, he would place reliance on the
ruling of the Hon’ble Apex Court in the case of Newtech
Promoters and Developers Pvt. Ltd. (supra).
1 2021 SCC ONLINE SC 1044
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In the above background, the question that
arises for our consideration is “whether the authority
under the Act, 2016, has a discretion to waive the deposit
of the entire sum ordered to be refunded or whether the
authority under the Act, 2016, has discretion to order
deposit of a sum lesser then the sum directed to be
refunded, including interest and compensation ?”.
6.
The answer to the above issues is not very far
to seek. Paragraph Nos.122, 127 and 128 of the judgment
rendered by the Hon’ble Apex Court clearly obviates any
discussion on the issue. Paragraph No.122 reads as
under:-
“122. Before we examine the challenge to the
proviso to Section 43(5) of the Act of making pre-
deposit for entertaining an appeal before the
Tribunal, it may be apposite to take note of Section
43(5) of the Act, 2016. Section 43(5) reads as
follows:—
“43. Establishment of Real Estate
Appellate Tribunal-
…….
(5) Any person aggrieved by any direction
or decision or order made by the Authority or
by an adjudicating officer under this Act may
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prefer
an
appeal
before
the
Appellate
Tribunal having jurisdiction over the matter:
Provided that where a promoter files an
appeal with the Appellate Tribunal, it shall
not be entertained, without the promoter
first having deposited with the Appellate
Tribunal at least thirty per cent of the
penalty, or such higher percentage as may
be determined by the Appellate Tribunal, or
the total amount to be paid to the allottee
including interest and compensation imposed
on him, if any, or with both, as the case may
be, before the said appeal is heard.
Explanation - For the purpose of this sub-
section “person” shall include the association
of allottees or any voluntary consumer
association registered under any law for the
time being in force.”
7.
Proceeding further, the Hon’ble Apex Court has
also reasoned the object behind the rigor of the provisions
of sub-section (5) of Section 43 of the Act. On a plain
reading, it is apparent that the Tribunal is vested with the
jurisdiction to partially waive the pre-deposit of the
amount imposed on the promoter by way of penalty only.
Insofar as the amounts made due fr
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