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TMI Blog2024 (7) TMI 1451X X X X Extracts X X X X X X X X Extracts X X X X ..... the allotee including interest and compensation imposed on him within the meaning of the Proviso has to be the amount which is payable on the date of passing of Order by MahaRERA. That such total amount does not and cannot mean the amount which is payable to the complainant in future. It must be borne in mind that the special exemption for deferring the payment of interest by Appellant is given only for the purpose of ensuring that the entire project is not put in jeopardy and that other flat/office purchasers do not suffer. This dispensation is not granted to protect any interest of the promoter. Such deferment would therefore not mean that promoter would get a licence to treat the Order passed by MahaRERA as imposing no obligation as on the date of passing of the Order. If the promoter decides to challenge MahaRERA s order, the protection of deferment of payment of interest cannot be applied while deciding the issue of pre-deposit under Proviso to Section 43 (5). There is determination of the amount by the Regulatory Authority, the liability on promoter is fastened and only the time for making the payment is postponed. Therefore it cannot be countenanced that no liability is fixe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PEAL NO. 731 OF 2023 WITH INTERIM APPLICATION NO. 366 OF 2024 WITH SECOND APPEAL NO. 727 OF 2023 WITH INTERIM APPLICATION NO. 18143 OF 2023 IN SECOND APPEAL NO. 727 OF 2023 WITH SECOND APPEAL NO. 734 OF 2023 WITH INTERIM APPLICATION NO. 18290 OF 2023 IN SECOND APPEAL NO. 734 OF 2023 WITH SECOND APPEAL NO. 737 OF 2023 WITH INTERIM APPLICATION NO. 18295 OF 2023 IN SECOND APPEAL NO. 737 OF 2023 WITH SECOND APPEAL NO. 736 OF 2023 WITH INTERIM APPLICATION NO. 18294 OF 2023 IN SECOND APPEAL NO. 736 OF 2023 WITH INTERIM APPLICATION NO. 364 OF 2024 WITH SECOND APPEAL NO. 733 OF 2023 WITH INTERIM APPLICATION NO. 18289 OF 2023 IN SECOND APPEAL NO. 733 OF 2023 WITH SECOND APPEAL NO. 735 OF 2023 WITH INTERIM APPLICATION NO. 18288 OF 2023 IN SECOND APPEAL NO. 735 OF 2023 WITH INTERIM APPLICATION (ST) NO. 3239 OF 2024 IN SECOND APPEAL NO. 735 OF 2023 WITH SECOND APPEAL NO. 732 OF 2023 WITH INTERIM APPLICATION NO. 18287 OF 2023 IN SECOND APPEAL NO. 732 OF 2023 Balaji Construction Company Versus Vikram B Shah And Balaji Construction Company Versus Achala Abhijit Patil and Anr. And Balaji Construction Company Versus Prashant Sukhadev Mahajan And Balaji Construction Company Versus Chintan Mahesh Sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be entitled to claim benefit of moratorium period as per Notifications/Order Nos. 13 and 14 dated 2 April 2020 and 18 May 2020. 3) Aggrieved by MahaRERA s Order dated 31 October 2022, Appellant has filed Appeals before the Appellate Tribunal. The Appellate Tribunal passed Order dated 2 March 2023 directing the Appellant to deposit the entire amount ordered by MahaRERA in compliance of the proviso to Section 43 (5) of RERA. Since Appellant did not deposit the amount as directed by Order dated 2 March 2023, Appellate Tribunal passed Order dated 10 April 2023 holding that the Appeals are liable to be dismissed and posted the Appeals for compliance/dismissal on 26 April 2023. It appears that on 26 April 2023, the Appeals were dismissed. 4) Appellant filed various Writ Petitions in this Court challenging the Order dated 26 April 2023 complaining that MahaRERA had not quantified the amounts payable under the Order dated 31 October 2022. This Court was therefore informed that the Appellant was unable to pre- deposit the amount under Section 43 (5) of RERA. This Court therefore disposed of the Writ Petitions directing the Appellate Tribunal to quantify the amount to be pre-deposited b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other amounts under the agreements and that as of now nothing is due or payable by Appellant to the Respondents. That MahaRERA has not directed Appellant to pay any amount to the Respondents and therefore Proviso to Section 43 (5) is not attracted in the present case. 8) Mr. Shah would further submit that in absence of determination of any amount payable by Appellant to the Respondents under the Order of MahaRERA, Proviso to Section 43 (5) becomes inapplicable to the facts of the present case. That Appellant has an excellent case on merits where it wants to agitate various issues such as validity of termination of agreements, conversion of project from residential to commercial, non-payment of amounts under the agreements by Respondents, illegal sales effected by some of the original allotees etc. That Appellant is prevented from arguing the said points on merits by the Appellate Tribunal by unnecessarily insisting on pre-deposit under Proviso to Section 43 (5), when in fact nothing is due and payable to the Respondents. Inviting my attention to regulation 25 (i) of Maharashtra Real Estate Appellate Tribunal Regulations, 2019. Mr. Shah would submit that Appellate Tribunal otherwis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e only in case of Appeal preferred by promoter. Therefore, what is payable by flat purchaser under the agreement to the promoter is irrelevant for the purpose of pre-deposit to be made under proviso to Section 43 (5). Inviting my attention to sub-section 1 of Section 18 of RERA, Mr. Bhadbhade would contend that the interest is already payable to the Respondents for delay in delivery of possession and if Appellant wants to avoid payments of that interest to Respondents, by filing Appeal before Appellate Tribunal, it must first deposit the amount of interest payable under Section 18 (1) as directed by MahaRERA. 11) Mr. Bhadbhade would then highlight the conduct of Appellant by submitting that the Appellant was agreeable to deposit the entire amount of interest and filed Writ Petition before this Court complaining that it was unable to do so on account of absence of quantification of the amount of interest payable under the Order of MahaRERA. That the Appellant cannot now turn about and question the liability to deposit the interest. Mr. Bhadbhade would pray for dismissal of the Appeals. 12) Mr. Khan, the learned counsel appearing for Respondents in Second Appeal No. 727 of 2023 would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation imposed on him, if any, or with both, as the case may be, before the said appeal is heard. 16) The requirement of making pre-deposit under Proviso to Section 43 (5) is applicable only in respect of an appeal filed by the promoter. When the flat purchaser/allotee files an appeal, there is no requirement of making any pre-deposit. Since the appeals in the present case are filed by the promoter, Proviso to Section 43 (5) gets attracted. According to the Appellant, the total amount to be paid to the allotee including interest and compensation imposed on him within the meaning of the Proviso has to be the amount which is payable on the date of passing of Order by MahaRERA. That such total amount does not and cannot mean the amount which is payable to the complainant in future. 17) No doubt, the objective behind introduction of Proviso to sub Section 5 of Section 43 is to ensure that the promoter does not engage the flat purchasers in endless litigation without any consequences. The Proviso to Section 43 (5) ensures that the promoter first deposits the entire amount payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... balance amount if any, by either party be paid at the time of possession. g. Needless to state here that the actual amount as provided under Section 18 of the RERA means the amount paid by the complainants towards the consideration of the said premises only, excluding the stamp duty, registration charges and taxes etc. paid to the government. h. With regard to the payment of interest to the complainants, the MahaRERA further directs that the respondent promoter is entitled to claim the benefit of moratorium period as mentioned in the Notifications/Orders Nos. 13 and 14 dated 2 April 2020 and 18 May 2020 issued by the MahaRERA and the Notification/Order which may be issued in this regard from time to time. 19) Thus, under Order dated 31 October 2022, the Appellant promoter is directed to pay interest to the Respondents for delayed possession from 1 April 2019 till the date of delivery of possession with occupancy certificate on actual amounts paid by them towards consideration of the premises. In ordinary course the directions to pay interest would come into effect forthwith. However, considering the facts and circumstances of the case where the promoter is not put under financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en upheld. Section 62(5) of the PVAT Act reads as follows: 62. First Appeal. - (1)-(4) (5) No appeal shall be entertained, unless such appeal is accompanied by satisfactory proof of the prior minimum payment of twenty five per cent of the total amount of tax, penalty and interest, if any. 134. To be noticed, the intention of the instant legislation appears to be that the promoters ought to show their bona fides by depositing the amount so contemplated. 135. It is indeed the right of appeal which is a creature of the statute, without a statutory provision, creating such a right the person aggrieved is not entitled to file the appeal. It is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in all judicial and quasi judicial litigations and it is always be circumscribed with the conditions of grant. At the given time, it is open for the legislature in its wisdom to enact a law that no appeal shall lie or it may lie on fulfillment of pre-condition, if any, against the order passed by the Authority in question. 136. In our considered view, the obligation cast upon the promoter of pre-deposit under Section 43(5) of the Act, being a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. 23) I am therefore of the view that, even if liability to pay interest is deferred by MahaRERA in the overall interest of the project, such deferment is granted only if the promoter is willing to be abide by the Order of the Regulatory Authority. Such deferment will have no effect on promoter s liability to make pre-deposit under Proviso to sub Section 5 of Section 43. Therefore, Appellant must deposit the amount quantified by the Appellate Tribunal as a pre-condition for entertainment of its Appeals. 24) Also of relevance in the present case is the conduct exhibited by the Appellant. After the Appellate Tribunal passed Orders dated 2 March 2023, 10 April 2023 and 26 April 2023 dismissing the Appeals for non- compliance with Proviso to Section 43 (5), Appellant approached this Court by filing Writ Petitions complaining that it is unable to make a pre-deposit in absence of quantification of amount by the Appellate Tribunal. In various Writ Petitions filed by Appellant, this Court passed Order dated 4 May 2023 which reads thus: 1. The present writ petitions impugn an order dated 26th April, 2023, by which, the Appeal filed by the Petitioner before the MAHARERA Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that mere deferment of liability to pay interest would not constitute an exception to Proviso under Section 43(5). 26) Reliance of Mr. Shah on the Judgment of the Apex Court in M/s. S. E. Graphites Private Limited (supra) does not assits the case of Appellant. The case before the Apex Court related to compliance with pre- condition of producing proof of payment of tax for entertainment of Appeal under the provisions of APGST Act 1957. The issue before the Apex Court was about adjustment of amount stated in the tax credit certificate issued in favour of the Appellant. The Apex Court has remanded the proceedings before the High Court for not answering the plea raised by the Appellant therein about adjustment of the amount reflected in tax credit certificate. The judgment of the Apex Court is thus inconclusive as to whether any adjustment was indeed required to be done in the facts of that case and an Order of remand to the High Court is made by the Apex Court. Even otherwise, in case before the Apex Court, the amount reflected in tax credit certificate was already paid and the issue was about its adjustment. In the present case, the liability to pay interest has crystal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r entertainment of Appeals before the Appellate Tribunal, even though its liability to pay such interest is not in praesenti but in future. This would however be subject to deduction of amount of interest in respect of COVID-19 pandemic period as per Notifications/Order Nos. 13 and 14 dated 2 April 2020 and 18 May 2020. 31) So far as the second question of law about deposit of 30% penalty under Proviso to sub-Section 5 of Section 43 is concerned, Mr. Shah has fairly conceded that what is directed to be paid by MahaRERA is not penalty but interest, which would be covered by the expression the total amount to be paid to the allotee . In the light of the above, the second question formulated can be answered holding that the entire amount awarded by MahaRERA (subject to minor modification) must be deposited and issue of deposit of any penalty does not arise in the present case. 32) I accordingly proceed to pass following Order: ORDER i) The Appeals filed by Appellant are partly allowed to the limited extent of directing the Appellate Tribunal to deduct the amount of interest payable during the moratorium period covered by Notifications/Order Nos. 13 and 14 dated 2 April 2020 and 18 May ..... X X X X Extracts X X X X X X X X Extracts X X X X
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