Karnataka High Court

Skygold Properties Pvt Ltd vs Sri Guru R on 19 February, 2025

Author: R Devdas

Bench: R Devdas

                                                  -1-
                                                               NC: 2025:KHC:7377
                                                            WP No. 20390 of 2024




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 19TH DAY OF FEBRUARY, 2025

                                               BEFORE
                               THE HON'BLE MR JUSTICE R DEVDAS
                           WRIT PETITION NO. 20390 OF 2024 (GM-RES)

                      BETWEEN:

                      SKYGOLD PROPERTIES PVT LTD
                      MR. AKASH A SUVARNA
                      MANAGING DIRECTOR
                      SRISHTI 42/A, 2nd BLOCK, 3rd STAGE,
                      BASAVESHWAR NAGAR,
                      BENGLAURU 560 079
                      REP. BY ITS MANAGING DIRECTOR
                      MR. AKASH A SUVARNA
                                                                    ...PETITIONER
                      (BY SRI. VENKATESH S ARBATTI., ADVOCATE)

                      AND:

                      1.   SRI GURU R
Digitally signed by        FF3, BALAJI NEST APARTMENT,
KRISHNAPPA
LAXMI YASHODA              HBR LAYOUT, 4th BLOVK,
Location: HIGH             HENUUR MAIN ROAD,
COURT OF                   NEAR GOOD YEAR ENGLISH SCHOOL
KARNATAKA
                           BENGALURU 560 043

                      2.   THE KARNATAKA REAL ESTATE
                           REGULATORY AUTHORITY
                           1/4, 2nd FLOOR, SILVER JUBLIEE BLOCK
                           BEHIND UNITY BUILDING,
                           CSI COMPOUND 3rd CROSS,
                           MISSION ROAD,
                           BENGALURU 560 027
                           REPRESENTED BY ITS CHAIRMAN
                           -2-
                                      NC: 2025:KHC:7377
                                   WP No. 20390 of 2024




3.   SPECIAL TAHSILDAR
     BENGALURU NORTH
     KANDAYA BHAVAN,
     GROUND FLOOR, K G ROAD,
     BENGALURU 560009
                                        ...RESPONDENTS
(BY SRI. SUBRAMANYA R., AVOCATE FOR
    SMT. LOCHANA S BABU., ADVOCATE FOR R1
    SRI. K.V. GIRISH., ADVOCATE FOR R2
    SRI. SHAMANTH NAIK., HCGP FOR R3)

     THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH BY WRIT OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER
DIRECTION IN THE NATURE OF WRIT, THE ORDER DTD.
14.05.2024 PASSED BY THE R-2 ON COMPLAINT NO.
01726/2023 PER ANNX-A AND ISSUE WRIT OF CERTIORARI OR
ANY OTHER APPROPRIATE WRIT OR ORDER DIRECTION IN THE
NATURE OF WRIT, THE ORDER DTD. 20.01.2020 PASSED BY
THE R-2 ON COMPLAINT NO.CMP/190808/0003534 PER
ANNX-C AND ETC.

    THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:


CORAM: HON'BLE MR JUSTICE R DEVDAS


                     ORAL ORDER

The petitioner, a developer is before this Court

aggrieved of the impugned order at Annexure-A, dated,

14.05.2024 and the subsequent attachment order dated

15.07.2024 at Annexure-H, issued in pursuance to the

impugned order dated 14.05.2024.

NC: 2025:KHC:7377

2. Learned Counsel for the petitioner submits that

earlier, the contesting respondent, a home buyer had filed

a complaint before the Karnataka Real Estate Regulatory

Authority in CMP No.190808/0003534. The petitioner

participated in the proceedings and the authority passed

an order on 20.01.2020, directing the petitioner herein to

pay interest at the rate of 9% per annum on the total

amount paid by the home buyer during the month of

August 2016 till 30.04.2017.

3. It is the contention of the first respondent-home

buyer that he had paid Rs.42 lakhs to the petitioner. The

petitioner was also directed to pay interest at the rate of

2% above the MCLR of SBI on the total amount paid by

the first respondent from 01.05.2017 to 10.09.2019. The

first respondent was directed to tender the balance

amount payable to the petitioner and the petitioner was

also directed to execute a sale deed within 60 days from

the date of the order. Costs of Rs.5000/- was also

imposed on the petitioner.

NC: 2025:KHC:7377

4. It is admitted that the petitioner did not pay the

amount as directed by RERA. However, it is contended

that there was a direction issued by the authority to the

first respondent herein to pay the balance amount and get

the sale deed executed within 60 days from the date of

the order. But, the first respondent also did not pay the

balance amount and did not come forward for execution of

the sale deed. Nevertheless, the first respondent filed one

more complaint in CMP UR 201202/0000007200, seeking

refund of the amount paid; interest paid to the bank; loss

of rent; interest on down payment; loss on customization

expenses; recovery of capital gain losses; recovery of

income tax and losses on home loan.

5. The authority passed an order on 19.09.2022

directing the petitioner herein to pay the entire amount

paid by the first respondent towards refund, with interest

within 60 days from the date of the order calculated at 9%

percent per annum from 06.07.2014 to 30.04.2017 and

2% above MCLR of SBI commencing from 01.05.2017 till

NC: 2025:KHC:7377

the date of realization. The first respondent was also

directed not to enforce the previous Award. It was also

held that the complainant is not entitled for delayed

compensation and he shall forgo his right to enforce the

Award passed in CMP.No.190808/0003534. However, the

first respondent took up the matter in appeal before the

Karnataka Real Estate Appellate Authority in appeal

(K-REAT) No.1 of 2023.

6. The appellate authority set aside the order passed

in the second complaint and granted liberty to the first

respondent to pursue the Execution Petition insofar as the

first Award is concerned. Nevertheless, the first

respondent filed one more complaint in number 01726 of

2023, seeking interest on delayed period from October,

2019 till the date of execution of the sale deed. Learned

Counsel for the petitioner submits that it is clear from the

impugned order that the order is an exparte order passed

in the absence of the petitioner. Moreover, the authority

could not have entertained the 3rd complaint having regard

NC: 2025:KHC:7377

to the orders passed by the appellate authority declining

some of the prayers made by the first respondent herein.

In that view of the matter, the learned Counsel submits

that the matter may be remanded back to the authority so

that the petitioner will have full opportunity to contest the

matter having regard to the facts narrated hereinabove

that a 3rd complaint has been filed by the first respondent

contrary to the provisions and the rights made available

for a home buyer under the provisions of the RERA Act.

7. Per contra, learned Counsel for the first

respondent would submit that there is an appeal remedy

available for the petitioner and therefore, the petitioner

should be directed to file an appeal to avail the appeal

remedy and this writ petition cannot be maintained.

8. Having heard the learned Counsel for the

petitioner, learned Counsel for the first respondent and on

perusing the petition papers, this Court is of the

considered opinion that the main grievance of the

petitioner is regarding the successive complaints being

NC: 2025:KHC:7377

filed at the hands of the first respondent. In that view of

the matter, the learned Counsel for the petitioner has

sought for a remand of the matter while setting aside the

impugned order so that the petitioner will be able to put

across his contentions regarding the maintainability of the

3rd complaint at the hands of the first respondent before

the authority.

9. In the case of Whirlpool Corporation Vs.

Registrar Of Trade Marks, Mumbai & Ors., (1998) 8

SCC 1, the Hon'ble Supreme Court has laid guidelines

while consideration of such contentions regarding

availability of alternative remedy. The facts as noticed

hereinabove will fall within the 3 conditions laid down in

the said judgment of the Hon'ble Supreme Court.

Therefore, the contention of the learned Counsel for the

first respondent regarding availability of alternative

remedy is rejected.

10. This Court is also of the considered opinion that

since it is an admitted fact that a 3rd complaint has been

NC: 2025:KHC:7377

filed by the first respondent, the question of

maintainability of such a complaint before the authority

was also required to be considered by the authority before

passing the impugned order. If an opportunity is made

available to the petitioner, he will be able to put across

such contention and the authority will have to reconsider

the question of maintainability of the 3rd complaint at the

hands of the first respondent before the authority.

11. In that view of the matter, this Court proceeds to

pass the following:

ORDER

1) The petition is partly allowed.

2) The impugned order dated 14.05.2024, on

complaint number 01726 of 2023, passed by

the Karnataka Real Estate Regular Regulatory

Authority, is hereby quashed and set aside.

3) The matter stands remanded back to the

authority to reconsider the complaint made at

the hands of the first respondent while

NC: 2025:KHC:7377

affording an opportunity of hearing to the

petitioner.

4) The petitioner is permitted to file statement of

objections in the complaint within a period of

2 weeks from the date of receipt of a copy of

this order.

5) The authority shall hear the parties and

thereafter, proceed to pass orders in

accordance with law, as expeditiously as

possible and at any rate within a period of 6

weeks from 10th of March 2025. The parties

are hereby directed to appear before the

Karnataka Real Estate Regulatory Authority,

Bench-4 on 10th of March 2025, without

waiting for further notice.

6) All contentions are kept open.

7) Any observations made during the process of

this order shall not prejudice the case of any