(A.M. Khanwilkar and Dinesh Maheshwari, JJ.)
Nirman Realtors and Developers Pvt. Ltd. ________________ Appellant;
v.
Shabnam Ansari and Others ______________________ Respondent(s).
Civil Appeal No. 1091 of 2021 (Arising out of SLP(C) No. 5077 of 2021), decided on April 5, 2021
The Order of the court was delivered by
Order
1. Leave granted.
2. This appeal takes exception to the judgment and order dated 05.03.2021 passed by the High Court of Judicature at Bombay in Second Appeal (ST) No. 2576 of 2021.
3. Heard learned counsel for the parties.
4. The short issue in this appeal is the amount to be deposited by the appellant by way of pre-deposit under Section 43(5) of the Real Estate (Regulation and Development) Act, 2016.
5. According to the Maharashtra Real Estate Appellate Tribunal, the appellant was obliged to pay 30 per cent of payable amount of Rs. 4,30,49,763/- (Rupees Four Crore Thirty Lakhs Forty-Nine Thousand Seven Hundred Sixty-Three only) on or before 15.02.2021 vide order dated 20.01.2021. That order has been confirmed by the High Court.
6. The argument is that there had been seven separate transactions in respect of concerned flats, between the parties. Further, considering the consent terms executed between the parties in respect of at least 4 (four) flats out of the total 7 (seven) flats, the delivery of possession is scheduled as on or before 01.12.2024. That presupposes that no amount is due and payable in respect of those 4 (four) flats. Hence, no liability can be fastened on the appellant at least in respect of those 4 (four) flats as of now. In other words, for the time being, the appellant is liable to honour the commitment only in respect of 3 (three) flats and can be said to have committed default in that regard. That is the subject matter of appeal before the Appellate Tribunal.
7. As of now, prima facie, admitted liability of the appellant is in respect of 3 (three) flats as aforesaid. The aggregate value of the said liability with accrued interest works out to Rs. 2,15,60,000/- (Rupees Two Crore Fifteen Lakhs Sixty Thousand Only). Therefore, 30 per cent of that amount is Rs. 65,00,000/- (Rupees Sixty-Five Lakhs only) rounded off figure – which the appellant ought to pay as pre-deposit at the time of filing of appeal before the Appellate Tribunal in terms of Section 43(5) of the Act.
8. The argument of the respondent that the liability of the appellant is in respect of all the 7 (seven) flats is a matter which can be considered in the appeal.
9. In terms of this order, the appellant shall pay Rs. 65,00,000/- (Rupees Sixty-Five Lakhs only) towards pre-deposit amount to maintain the appeal before the Appellate Tribunal. That be paid within four weeks from today. With this direction, the application filed by the respondent to call upon the appellant to deposit entire amount, also stands disposed of. For, we are inclined to direct expeditious disposal of the appeal before the Appellate Tribunal.
10. Accordingly, this appeal partly succeeds to the above extent.
11. Needless to observe that all contentions available to both sides are left open for being decided in the proposed appeal on their own merits. We have not expressed any opinion either way on the grounds available to both sides in the stated proceedings.
12. We direct the Appellate Tribunal to expeditiously dispose of the appeal preferably within three months from deposit of the amount in terms of this order by the appellant.
13. Pending applications, if any, stand disposed of.
Petition(s) for Special Leave to Appeal (C) No(s). 5077/2021
Nirman Realtors and Developers Pvt. Ltd ________________ Petitioner
v.
Shabnam Ansari & Ors ____________________________ Respondent(s)
(FOR ADMISSION and I.R. and IA No. 44488/2021-PERMISSION TO PLACE ADDITIONAL FACTS AND GROUNDS)
Date: 05-04-2021 This petition was called on for hearing today.
(Before A.M. Khanwilkar and Dinesh Maheshwari, JJ.)
For Petitioner(s) Mr. Annuj N. Narula, Adv.
Mr. Rohan Thawani, Adv.
Mr. Iqram Singh, Adv.
Ms. Pooja Dhar, AOR For Respondent(s)
Mr. Shyam Divan, Sr. Adv.
Mr. Cherag Balsara, Adv.
Mr. Udayaditya Banerjee, AOR
Ms. Leena Shah, Adv.
UPON hearing the counsel the Court made the following
ORDER
14. Leave granted.
15. The appeal is partly allowed in terms of the signed order.
16. Pending applications, if any, stand disposed of.
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