MOTIF BUILDERS AND DEVELOPERS PVT. LTD. v. NONE

BY ADVS. A.MOHAMMED RAJIV NAMBISAN A N SERGI JOSEPH THOMAS(K/000962/89) SRI. C.M.NAZAR - SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 23393/23 3 JUDGMENT The petitioner impugns Ext.P9 order of the 4th respondent – Kerala Real Estate Appellate Tribunal, rejecting his Appeal under Section 43(5) of the Kerala Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as ‘the Act’ for short).

Sri. Millu Dandapani – learned counsel for the petitioner, pointed out that his client had earlier approached this Court through WP(C)No.949/2023, when the Kerala Real Estate Regulatory Authority (KRERA) had issued Ext.P6 order asking his clients to pay certain amounts to the party respondents, which had been disposed of by this Court through Ext.P8 judgment, directing the learned Tribunal to consider their application for waiver from the statutory pre-deposit and to allow them to cause deposit of only 30% of the impugned order. He conceded that his clients made a mistake in noting the date of posting of the Appeal before the learned Tribunal as being 26.06.2023, when it was actually listed on 20.06.2023; and consequently that Ext.P9 order had been issued in their absence because, the said Authority was also not aware of Ext.P8 judgment. WPC 23393/23 4 He submitted that Ext.P9, therefore, is contrary to the directions in Ext.P8 judgment, but took the blame upon his clients, saying that it was only on account of the mistake in noting the case before the Tribunal, that this confusion has arisen.

Sri. Millu Dandapani, nevertheless, argued that when Ext.P8 judgment had been delivered - which is also within the knowledge of the party respondents, they ought to have brought its directions to the notice of the learned Tribunal, but that they appear not to have done so, thus leading to the issuance of Ext.P9. He, therefore, prayed that Ext.P9 be set aside and the learned Tribunal be directed to reconsider the matter, adverting to Ext.P8 without any avoidable delay, particularly because, according to him, after the Appeal was dismissed, an Execution Petition has been filed by the party respondents qua Ext.P6 order of ‘KRERA’, which is still pending.

Sri.A.Muhammed – learned counsel for the 1st respondent and Sri.A.N.Rajiv Nambisan for respondents 2 and 3, submitted that no error can be attributed by the petitioners against the learned Tribunal because, it was solely since they had refused to appear WPC 23393/23 5 before it, that Ext.P9 order has been issued. They, therefore, left it to this Court to issue appropriate orders; however, praying that, even if the learned Tribunal is directed to reconsider the matter, it may be ordered to be done within specific time frames, because their clients are awaiting justice for the last several years.

The afore submissions of Sri. Millu Dandapani renders it luculent that no fault can be attributed against the learned Tribunal in having issued Ext.P9. The petitioners were not present before the learned Tribunal when the said order was issued; and obviously, therefore, the said Authority was unaware of Ext.P8. This Court is certain that, had it been otherwise, the learned Tribunal would have certainly acted in terms of the directions in Ext.P8.

However, in order to ensure that substantial justice is obtained to all parties and to preserve the purity of the system, I am certain that the learned Tribunal must reconsider the matter, adverting to Ext.P8 judgment, since, as rightly argued by Sri. Millu Dandapani, the party respondents were also aware of it on

20.06.2023, when the Tribunal took up the matter and disposed it of, leading to Ext.P9. WPC 23393/23 6 In the afore circumstances, without entering into the merits of any of the rival contentions, I allow this Writ Petition and set aside Ext.P9; with a consequential direction to the learned Tribunal to reconsider the application of the petitioners, in terms of Ext.P8 judgment; thus culminating in an appropriate order/necessary action thereon, after hearing the parties and following due procedure, as expeditiously as is possible. I request the learned Tribunal to complete the afore exercise, if possible, within a period of two months from the date of receipt of a copy of this judgment. As a necessary corollary direction, all further action pursuant to Ext.P10 will stand deferred until such time as the afore directions are complied with. RR Sd/- DEVAN RAMACHANDRAN JUDGE WPC 23393/23 7 APPENDIX OF WP(C) 23393/2023 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P3(a) Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 Exhibit P10 TRUE COPY OF THE JOINT VENTURE AGREEMENT HAVING THE 1ST PETITIONER AS THE 2ND PARTY AND THE 2ND AND 3RD RESPONDENTS AS THE 1ST PARTY DATED 07.10.2008 TRUE COPY OF THE AGREEMENT BETWEEN THE PETITIONERS AND THE 1ST RESPONDENT HEREIN DATED 17.11.2009 TRUE COPY OF THE APPLICATION SUBMITTED BY THE 2ND AND 3RD RESPONDENTS HEREIN FOR THE PETITIONERS BEFORE THE ALUVA MUNICIPALITY TRUE COPY OF THE THE RECEIPT ISSUED BY THE ALUVA MUNICIPALITY BEARING NO. 5893/22 DATED 05.05.2022 TRUE COPY OF THE COMPLAINT BEARING NO. 31 OF 2022 PREFERRED BY THE 1ST RESPONDENT BEFORE THE REAL ESTATE REGULATORY AUTHORITY. TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS IN COMPLAINT NO. 31 OF 2022 BEFORE THE REAL ESTATE REGULATORY AUTHORITY TRUE COPY OF THE ORDER DATED 26.08.2022 OF THE REAL ESTATE REGULATORY AUTHORITY IN COMPLAINT NO. 31 OF 2022 TRUE COPY OF THE I.A NO. 126 OF 2022 IN REFA 79 OF 2022. TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 06.06.2023 IN WP(C) NO. 949 OF 2023 TRUE COPY OF THE ORDER DATED 20.06.2023 IN REFA NO. 79 OF 2022 PASSED BY THE 4TH RESPONDENT TRUE COPY OF THE ORDER OF EXECUTION PETITION NO.3 OF 2023 IN COMPLAINT NO.31 OF 2022 OF THE KERALA REAL ESTATE REGULATORY AUTHORITY, THIRUVANANTHAPURAM, DATED 28.12.2023