Shrivision Homes Private Limited vs Soumitra Kumar Saha
2022 Latest Caselaw 1692 Kant

                             1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 3RD DAY OF FEBRUARY 2022

                         PRESENT

        THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

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

                  RERA .A NO.5 OF 2021

BETWEEN:

SHRIVISION HOMES PRIVATE LIMITED
NO.31, 2ND MAIN, T. CHOWDAIAH ROAD
SADASHIVANGAR, BENGLURU 560080
REPRESENTED BY ITS AUTHORISED SIGNATORY
SRI. NAVEEN KUMAR J.
                                          ... APPELLANT

(BY SRI. JOSEPH ANTHONY, ADV.,)


AND:

1.   SOUMITRA KUMAR SAHA
     S/O PRAFULLA KUMAR SAHA
     AGED ABOUT 49 YEARS
     RESIDING AT No.B-214
     EUPHORIA APARTMENT, IBLUR
     OFF OUTER RING ROAD AND
     SARJAPUR ROAD CROSS
     BENGALURU - 560 102.

2.   THE ADJUDICATING OFFICER
     THE KARNATAKA REAL ESTATE
     REGULATORY AUTHORITY
     2ND FLOOR, SILVER JUBILEE BLOCK
     UNITY BUILDING, CSI COMPOUND
                              2



    3RD CROSS, MISSION ROAD
    BANGALORE 560027.

                                          ... RESPONDENTS
(BY SMT. MANVI, ADV., A/W
    SRI. RAJENDRA S, ADV., FOR R1
    SRI. ROBERT D. SOUZA, ADV., FOR R2)
                            ---

      THIS RERA .A IS FILED UNDER SECTION 58 OF THE REAL
ESTATE (REGULATION AND DEVELOPMENT) ACT, 2016, PRAYING
TO CALL FOR RECORDS PERTAINING TO K-REAT APPEAL No.74
OF 2020 ON THE FILE OF THE RESPONDENT NO.1 AND ISSUE AN
ORDER OR DIRECTION TO SET ASIDE THE IMPUGNED JUDGEMENT
DATED 19.3.2021 (ANNEXURE-A) OR IN THE ALTERNATIVE,
REMAND THE MATTER TO THE FILE OF K-REAT, THEREBY
DIRECTING THE K-REAT TO PERMIT THE APPELLANT HEREIN TO
ADVANCE ARGUMENTS AND PROSECUTE THE SAID APPEAL
WITHOUT THE REQUIREMENT TO MAKE THE DEPOSIT OF SEVENTY
PER CENT (70%) OF THE AMOUNT AS AWARDED BY RESPONDENT
NO.2 TO RESPONDENT NO. & ETC.

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

                       JUDGMENT

This appeal is admitted on the following substantial

question of law:

Whether Section 43(5) and the proviso thereto mandates a promoter/developer preferring an appeal under Section 44 of the Act to only advance arguments and further prosecute the appeal upon the payment of the seventy per cent (70%) of the amount awarded by the Ld. Adjudicating Officer (Respondent No.2 herein) under the provision of the Act?

2. When the matter was taken up today, learned

counsel for the parties fairly submitted that the aforesaid

substantial question of law has been answered by the

Supreme Court in 'NEWTECH PROMOTERS AND

DEVELOPERS PVT. LTD. Vs. STATE OF UP AND OTHERS'

2021 SCC ONLINE SC 1044. It is further submitted by the

learned counsel for the appellant that the appellant be

granted four weeks time to deposit the amount as directed

by the Appellate Tribunal and the appeal be remitted for

hearing on merits. The aforesaid submission has not been

fairly opposed by the learned counsel for the respondent

No.1.

3. In view of the aforesaid judgment of the Supreme

Court, the substantial question of law is answered against the

appellant and in favour of the respondent No.1. However, in

the facts of the case, judgment dated 19.03.2021 passed by

the Appellate Tribunal is set aside and it is directed that in

case appellant deposits the amount as directed by the

Appellate Tribunal within a period of four weeks from today,

the Tribunal shall hear the appeal on merits expeditiously.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

RV