MSA Nos.4 v. Gaj Raj Sahrawat & Ors.

submissions made for the parties: - 2(i). The appellant-Company is engaged in the business of Real Estate Development. For developing group housing project over the land situated in Damrog, District Solan, HP, the appellant got its project registered under the provisions of the Act. The said registration of the project was valid till 10.05.2024. According to the appellant, its aforesaid housing project consisted of three blocks, i.e. Blocks ‘A’, ‘B’ and ‘C’; 80% of the construction in Block-A was completed by constructing 36 flats; Construction of Blocks-B and C could not start. 2(ii). Respondent No.1 lodged a complaint on

31.03.2021 before Real Estate Regulatory Authority (RERA), Himachal Pradesh with the allegation that he had booked a specific flat in Block-A and had paid an advance amount of Rs.70,000/- on 31.05.2006 by cheque at the time of submitting the application form. That he had made total payment of Rs.8,90,500/- against 4 Rs.14,00,000/-. The remaining amount was to be paid at time of offer of possession by the appellant. Complainant’s grievance was that possession had not been handed over to him. He sought refund of the amount paid by him alongwith interest, besides claiming compensation under several heads. 2(iii). RERA, Himachal Pradesh adjudicated complaint on 06.09.2021 and issued following directions:- “21. Relief:- facts, issues in view the Act the abovementioned Keeping Authority in exercise of power vested in under various provisions following orders/directions: “i. The Complaint is allowed and the Respondent promoters are directed to refund a sum of Rs. Eight Lakh and Ninety Thousand (Rs. 8,90,000/-). along with interest at the BI highest marginal cost of lending rate plus 2% as prescribed under Rule 15 of the Himachal Pradesh Real Estate (Regulation & Development) Rules, 2017. The present highest MCLR of SBI is 7.3 % hence the rate of interest would be 7.3 %+2 % i.e.9.3%. It is clarified that the interest shall be payable from the dates on which different payments were made by the Complainant to the respondent till date the amount and interest thereon is refunded . ii. The refund along with interest is to be paid by the respondent promoter to the complaint within 60 days from the date of this order. iii. That in view of Section 61 of the Act which prescribes the maximum penalty that could be imposed for the contravention of any other provision of the Act other than Section 3 and 4, as five percent of the total cost of the project. The Authority, considering all facts of the case, deems appropriate to impose a penalty of Rs. Three Lakh in case the respondent promoter fails to comply 5 with the present order/directions passed by this Authority within stipulated period of sixty days. iv. It is further ordered that no withdrawal from the bank account of the projects to be made till payment as ordered is made to the complainant and penalty is deposited into the account of Authority. Further, there shall not be any alienation of any movable and immovable assets of this project till compliance of this order. v. The respondent promoter is directed to intimate the details of their bank accounts pertaining to this project within fifteen days. vi. The complainant shall be at liberty to approach the Adjudicating Officer for compensation under Section 71 of the Act ibid.” By the aforesaid order, RERA allowed the complaint and directed the appellant/promoter to refund to respondent No.1 a sum of Rs.8,90,00/- (Rupees Eight Lakh Ninety Thousand only) along with interest. The rate of interest applied was 7.3% + 2%, i.e. 9.3% (highest marginal cost of lending rate as per SBI Guidelines plus 2% as per Rule 15 of the Himachal Pradesh Real Estate (Regulation and Development) Rules, 2017). The interest was held payable from the dates on which different payments were made by respondent No.1 to the appellant till the actual date of payment and refund of interest thereon. The appellant was further directed to refund the above amount alongwith interest to respondent No.1 within 60 days from the date of the order. Further, in view of Section 61 of the Act, penalty of Rs.3 Lakh was imposable upon the appellant 6 upon its failure to comply with the order within the stipulated period of 60 days. RERA, Himachal Pradesh also ordered that no withdrawal from appellant’s bank account of the projects would be allowed till payment in terms of the order is made by it to respondent No.1 and penalty is deposited into the account of the Authority (RERA). Appellant was further restrained from alienating movable and immovable assets of the project till compliance of the order. Appellant was also directed to furnish the details of its bank accounts pertaining to the project within 15 days. 2(iv) Against the aforesaid order dated 06.09.2021, passed by the RERA, Himachal Pradesh, the appellant instituted CWP No.7152 of 2021 (CWP Nos. 7153 & 7154 of 2021 in the other two appeals) before this Court, which was dismissed as withdrawn on 17.11.2021 as under:- “ Learned counsel for the petitioner(s), states that she is under instructions not to press these petitions. Her statement is taken on record. Consequently, the instant potions are dismissed as not pressed, so also the pending application(s), if any.” 2(v) Subsequently, the appellant preferred appeal under Section 44 of the Act alongwith three applications viz (i) application for condonation of delay in refiling the 7 appeal; (ii) Condonation of delay in filing the main appeal and; (iii) Waiver of condition of pre-deposit as required under proviso to Section 43(5) of the Act. The applications moved by the appellant came for consideration before the learned Tribunal on

13.05.2022. The appellant urged before the learned Tribunal that under direction No. iv of the impugned order dated 06.09.2021, RERA had restrained withdrawing from its bank account, it had also been restrained from alienating its assets till compliance of the impugned order; There was no other project of the appellant. The appellant had no source to raise funds to make pre-deposit, hence, condition of pre-deposit be waived in its favour. Learned Tribunal did not find any substance in the contentions of the appellant. It held that no provision in the Act empowers the Tribunal to alter/waive/modify the conditions of pre-deposit. That M/s Technimont Pvt. Ltd. Vs. State of Punjab2 categorically holds that the Appellate Tribunal has no jurisdiction to waive the condition of pre- deposit. Union Bank of India Vs. Rajat Infrastructure 2 (2021) 12 SCC 477 8 Pvt. Ltd and others3 and Kotak Mahindra Bank Pvt. Limited Vs. Ambuj A. Kasliwal & Ors4 were also relied upon on the same proposition. Learned Appellate Tribunal also considered the decision rendered by the Division Bench of Punjab & Haryana High Court in Ramprastha Promoters and Developers Pvt. Ltd. Vs. Union of India and Ors5, which in turn had relied upon the law laid down in M/s Newtech Promoters & Developers Pvt. Ltd. Vs. State of UP & Ors.Etc.6 to hold that Section 43(5) mandates a pre- deposit for preferring an appeal. It is only under Article 226 of Constitution of India, a High Court exercising its jurisdiction in an appropriate case, can alter/modify/waive the requirement of mandatory pre-deposit. After considering the factual & legal pleas urged by the appellant and considering that even after expiry of the period allowed under the impugned order passed by the RERA on

06.09.2021, the requisite amount had not been deposited by the appellant-promoter as also the other factors governing the issue, the learned Tribunal dismissed the application filed by the appellant for waiver of condition of