Full Text
Date of Decision: 05.09.2023
DR. SUSHMA SINGH ..... Petitioner
Through: Mr. Amarjit Singh Bedi, Mr. Varun Chandiok and Ms. Riya Seth, Advocates
Through: Mr. Ashim Vachher, Standing Counsel for DDA with Mr. Kunal Lakra, Advocate.
JUDGMENT
Allowed, subject to all just exceptions.
Accordingly, the present application stands disposed of.
1. This petition filed under Article 227 of the Constitution impugns the orders dated 17.04.2023, 19.07.2023 and 11.08.2023 passed by Real Estate Appellate Tribunal (‘REAT’ or ‘Appellate Tribunal’).
2. In the facts of this case, Real Estate Regulatory Authority (‘RERA’ or ‘Authority’) was pleased to allow the complaint bearing no. 38 of 2019 filed by the Petitioner herein. RERA by its judgement dated 20.09.2022 directed Respondent No. 1 to pay the Petitioner herein interest at 10% (MCLR + 2%) from the date of the promised possession i.e., on all deposits made to them till the date of actual possession of the shops.
2.1. It is stated that in November, 2022 aggrieved by the judgement dated 20.09.2022, Respondent No. 1 preferred an appeal before the Appellate Tribunal bearing Appeal No. 82/2022.
3. The learned counsel for the Petitioner states that the Appellate Tribunal in exercise of its powers under Section 43(5) of the Real Estate (Regulation and Development) Act, 2016 (‘the Act of 2016’) vide order dated 22.05.2023 directed Respondent No. 1 to deposit 100% of the amount awarded by the Authority.
3.1. He states, however, upon an unnumbered application being filed by the Respondent No. 1 on 17.07.2023 seeking clarification and review of the order dated 22.05.2023, the Appellate Tribunal without according any reasons permitted the Respondent No. 1 to deposit a reduced amount equal to 30% of the amount awarded by the Authority vide impugned order dated 19.07.2023.
3.2. The learned counsel for the Petitioner states that Respondent No. 1 has, however, till date, not even deposited the reduced amount in compliance with the order dated 19.07.2023.
3.3. He states that the amount due and payable as per the Authority’s order dated 20.09.2022 is about Rs. 37.50 lakhs approximately. He states that 30% of the said amount is Rs. 11,23,548.43/-.
3.4. He states, however, the Respondent No. 1 has only deposited an initial amount of Rs. 49,350/-.
3.5. He states that though the aforesaid non-compliance has been duly brought to the attention of the Tribunal by the Petitioner herein no directions have been issued to the Respondent No. 1 by the Tribunal.
3.6. He states in contrast, the Petitioner herein who despite being a successful judgement holder has been rendered remediless. He states that vide order dated 17.04.2023, the Appellate Tribunal has stayed the impugned order, thereby, denying the Petitioner herein an opportunity to seek execution of the order dated 20.09.2022.
3.7. He states that in this manner, the Respondent No. 1 has successfully overcome the Bar of Section 43(5) of the Act of 2016 as he has neither complied with the directions of REAT dated 22.05.2023 and/or 19.07.2023 while continuing to enjoy the stay granted by the Tribunal.
3.8. He further states that in terms of the mandate of Section 44(5) of the Act of 2016 an appeal is to be decided by the Tribunal within a period of sixty (60) days. He states in the facts of this case, the appeal was instituted in November, 2022 and notice was issued to the Petitioner herein on 21.11.2022, however, the matter has not been decided as the Respondent No. 1 is taking adjournments on one pretext or the other.
3.9. He therefore states that the order dated 17.04.2023, in so far as, it stays the operation of the order may kindly be vacated.
3.10. He has relied also upon the judgement of Madras High Court in T. Chitty Babu v. Union of India, 2020 SCC OnLine Mad 28019, to contend that the Appellate Tribunal cannot proceed to hear the matter in view of the admitted non-compliance of the condition of deposit and in this regard he places reliance on paragraphs 29 and 30 thereof, which reads as under: -
4. This Court has considered the submissions of the counsel for the Petitioner and perused the record.
5. This Court has been informed that the matter is listed before the Tribunal on 22.09.2023.
6. At the outset it would be relevant to extract the provision of Section 43(5) and Section 44(5) relied upon by the Petitioner. The said provisions read as under: Section 43(5) of the Act of 2016: “(5) Any person aggrieved by any direction or decision or order made by the Authority or by an adjudicating officer under this Act may 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.” Section 44(5) of the Act of 2016: “(5) The appeal preferred under sub-section (1), shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal within a period of sixty days from the date of receipt of appeal: Provided that where any such appeal could not be disposed of within the said period of sixty days, the Appellate Tribunal shall record its reasons in writing for not disposing of the appeal within that period.” (Emphasis supplied)
7. The said provisions of law make it amply clear that the appellant cannot maintain its appeal before the Appellate Tribunal without complying with the direction of deposit of the awarded amount. In the present case the Respondent No.1 has been granted stay of the order dated 20.09.2022 passed by RERA without ensuring the compliance of the condition of deposit directed by the Tribunal by its orders dated 22.05.2023and the subsequent order dated 19.07.2023.
8. In view of the facts noted hereinabove as well as the mandatory provision of the Act of 2016 and taking note of the fact that the Respondent no. 1 has not complied with the directions of the Tribunal issued on 22.05.2023 and subsequently on 19.07.2023, the Appellate Tribunal is requested to hear and decide the application filed by the Petitioner herein dated 14.02.2023 (filed as annexure P-12 to this petition) along-with the applications filed by the Respondent No. 1 dated 17.07.2023 (filed as annexure P-16 to this petition) on the next date of hearing i.e., 22.09.2023.
9. The Tribunal is requested to issue appropriate orders for securing the compliance of its direction of deposit of the awarded amount and pass consequential orders in case of non-compliance, within a period of two (2) weeks thereafter.
10. After the Respondent No.1 has deposited the awarded amount, the Appellate Tribunal may thereafter also consider hearing and disposing of the appeal itself in a time bound manner accordance with the mandate of Section 44(5) of the Act of 2016.
11. The Petitioner is at liberty to place this order before the Tribunal before the next date of hearing.
12. With the aforesaid directions the present Petition is disposed of reserving liberty to the Petitioner to approach this court if the applications referred to in paragraph 8 herein above remain undecided.
13. Pending applications stands disposed of.
14. The registry is directed to communicate this order to the registrar of the Appellate Tribunal for placing it before the bench on or before 22.09.2023. website or the Delhi High Court, www.delhihighcourt.nic.in, shall be treated as a certified copy of the order for the purpose of ensuring compliance. No physical copy of order shall be insisted by any authority/entity or litigant.