Nhdpl South Private Limited vs Sri Cony Louis D Silva
2022 Latest Caselaw 1587 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 2nd DAY OF FEBRUARY 2022

                        PRESENT

        THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

           THE HON'BLE MR. JUSTICE M.I. ARUN

                RERA .A. NO.18 OF 2021
BETWEEN:

NHDPL SOUTH PRIVATE LIMITED
(FORMERLY KNOWN AS NHDPL PROPERTIES
PRIVATE LIMITED, EARLIER KNOWN AS
NITESH HOUSING DEVELOPERS PVT LTD)
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT, AND HAVING REGISTERED
OFFICE AT NO. 110, LEVEL -1
ANDREWS BUILDING, NO. 8, MG ROAD
BENGALURU 560001
REP. BY ITS AUTHORIZED REPRESENTATIVE
SRI. SWAMY K B.
                                         ... APPELLANT
(BY SRI. SIDDHARTH SUMAN, ADV.,)

AND:

1.   SRI. CONY LOUIS D'SILVA
     AGED ABOUT 54 YEARS
     S/O SHRI. HEROLD MARCEL D'SILVA
     R/AT KRISHNA SHELTON
     FLAT NO.408, BLOCK A
     DWARKA NAGAR
     BAGALUR CROSS ROAD
     YELAHANKA, BENALURU 560063.

2.   THE ADJUDICATING OFFICER
     REAL ESTATE REGULATORY AUTHORITY
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    NO.1/14, GROUND FLOOR
    SILVER JUBILEE BLOCK
    UNITY BUILDING, CSI COMPOUND
    3RD CROSS, MISSION ROAD
    BANGALORE 560027
    REP. BY ITS SECRETARY.
                                             ... RESPONDENTS
(BY SRI. PRATEEK RATH, ADV., FOR R2
R2 SERVED)
                            ---

      THIS RERA .A IS FILED UNDER SECTION 58 OF THE
KARNATAKA REAL ESTATE (REGULATION AND DEVELOPMENT)
ACT, 2016, PRAYING TO CALL FOR THE RECORDS AND SET ASIDE
THE ORDER DATED 9.11.2020 PASSED BY THE KARNATAKA REAL
ESTATE APPELLATE TRIBUNAL, BENGALURU, IN APPEAL NO. (K-
REAT) NO.65/2020 I.E., ANNEXURE-A), WHEREUNDER, THE
APPEAL FILED BY THE APPELLANT WAS DISMISSED AND
CONSEQUENTLY THE APPEAL FILED BY THE APPELLANT BEFORE
THE KARNATAKA REAL ESTATE APPELLATE TRIBUNAL, BENGALURU
IN APPEAL NO. (K-REAT) 65/2020 BE RESTORED TO FILE & ETC.,

     THIS RERA .A COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:

                        JUDGMENT

In this appeal preferred under Section 58 of the Real

Estate (Regulation and Development) Act, 2016 hereinafter

referred to as 'the Act' for short, the appellant has assailed

the validity of the order dated 09.11.2020 passed by the Real

Estate Appellate Tribunal hereinafter referred to as 'the

Tribunal' for short by which the appeal preferred by the

appellant has been dismissed on the ground of non-

compliance with proviso to Section 43(5) of the Act. The

appeal is admitted on the following substantial question of

law:

"Whether the Tribunal committed an error of law in dismissing the appeal preferred by the appellant on the ground of non-compliance with proviso to Section 43(5) of the Real Estate (Regulation and Development) Act, 2016, without affording a reasonable opportunity to the appellant?"

2. Facts giving rise to filing of the appeal are that the

appellant and respondent No.1 had entered into an

agreement to sell as well as construction agreement for sale

of apartment measuring 1846 square feet on 02.04.2013.

Sometime in the year 2019, the respondent No.1 filed a

complaint before the Adjudicating Authority under the Act, in

which inter alia it was stated that the possession of the

apartment as agreed in the agreement has not been handed

over to the respondent. Therefore, the respondent No.1

sought relief of refund of money along with interest as well

as compensation. The Adjudicating Authority passed an

order dated 19.09.2019 in favour of the respondent No.1.

Being aggrieved, the appellant filed an appeal on 20.06.2020

before the Tribunal. However, the appeal preferred by the

appellant has been dismissed on 09.11.2020 for non-

compliance of proviso to Section 43(5) of the Act.

3. Learned counsel for the appellant submitted that the

Tribunal ought to have given reasonable opportunity to

deposit the amount. It is further submitted that the

appellant could not comply with the requirement contained in

proviso to Section 43(5) of the Act as the appellant was

suffering from financial crises. It is further submitted that

the appellant undertakes to comply with the requirement

contained in proviso to Section 43(5) of the Act within two

weeks from the date of receipt of copy of the order passed

today.

4. On the other hand, learned counsel for the

respondent submitted that sufficient opportunity has already

been granted to the appellant to deposit the amount.

5. We have considered the submissions made on both

sides. In view of the stand taken by the appellant herein to

comply with the requirement contained in proviso to Section

43(5) of the Act within two weeks from the date of receipt of

copy of the order passed today and in the peculiar facts of

the case, we answer the substantial question of law in the

affirmative and in favour of the appellant. Therefore, the

impugned order dated 09.11.2020 is hereby quashed and set

aside.

Needless to state that the appellant shall comply with

the requirement contained in proviso to Section 43(5) of the

Act within a period of two weeks from the date of receipt of

copy of the order passed today. On such deposit being

made, the Tribunal shall proceed to deal with the appeal filed

by the appellant in accordance with law.

Needless to state that all contentions are kept open.

With the aforesaid directions, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

RV