M/S M.I. Builders Pvt. Ltd., Lko. Thru. Authorized Signatory Syed Mohd. Qadar Ali vs Anju Verma Singh

Court No. - 8

Case :- RERA APPEAL No. - 19 of 2025

Appellant :- M/S M.I. Builders Pvt. Ltd., Lko. Thru. Authorized Signatory Syed Mohd. Qadar Ali Respondent :- Anju Verma Singh Counsel for Appellant :- Paavan Awasthi,Mohd. Ashad Counsel for Respondent :- Neeraj Kumar Saxena,Ayushi Singh,Gaurav Saxena,Jayaditya Rai,Jushi Saxena,Rajni Saxena,Rishi Saxena

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Hon'ble Jaspreet Singh,J.

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Heard learned counsel for the appellant and Sri Rishi Saxena learned counsel for the sole respondent.

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The instant appeal has been preferred under Section 58 of the Real Estate (Regulation and Development) Act 2016 against the order dated 16.01.2025 passed by Real Estate Appellate Tribunal in Appeal No.345 of 2022 whereby the appeal preferred by the private respondent was allowed and direction has been issued to the appellant, herein, to handover the possession of Flat no.302, 3 BHK located in Dove Tower, 3rd Floor in MI Central Park Phase-I within 45 days from the payment of outstanding dues which was required to be paid by the respondent herein as on 13.01.2021 after completing the necessary formalities.

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Submission of learned counsel for the appellant is that initially an agreement was entered between the appellant and the respondent on 04.10.2016 relating to Flat no.302, 3 BHK, Dove Tower 3rd Floor having a super area of 1950 sq. ft located at MI Central Park Phase 1 which was allotted to the respondent.

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It is urged that Clause 5 of the said agreement clearly indicated that payment of the installments on time was the essence of booking/allotment and in case, if allottee failed to adhere the financial discipline, it was liable to attract at 24% interest p.a. It also provided that in case, if the amount is not received within 90 days from the due date of the installment or violation of any terms and condition of the agreement itself, it conferred the appellant with the power to forfeit the amount or cancel the allotment. It is urged that total cost of the flat determined at the relevant point of time was Rs.55,51,786/-. Against the same, the respondent had paid a sum of Rs.20 lacs and balance Rs.35,51,786/- plus tax was to be paid by the respondent. It is further submitted that the possession was to be given to the allottee within 36 months of the date of signing of the agreement which would expire sometime in December, 2019.

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It is the case of the appellant that despite reminder being sent to

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the respondent, they did not pay outstanding dues rather they were not keen to adhere to the terms and conditions as contained in the agreement to sell and since the readiness and willingness of the respondent was doubtful, the appellant sent certain demand notice through email and finally a final notice dated 09.08.2021 was issued to the respondent calling upon him to pay the outstanding sum, failing which, his allotment would be cancelled.

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It is urged that in furtherance of the said notice dated 09.08.2021, the respondent vide its reply dated 12.08.2021, for the first time indicated that they were ready to deposit the amount under protest, however, since they required certain documents for facilitating a loan hence the appellant was called upon to provide the N.O.C as well as the tripartite agreement which would facilitate the sanctioning of the loan by the bank concerned in favour of the respondent.

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It is also urged that since at no point of time earlier than 12.08.2021, the respondent had indicated that they required the tripartite agreement and the conduct of the respondent was such that all through out they had been disputing the demand as well as the fact relating to the completion of the project/flat in question. In such circumstances, the appellant was not keen to provide the tripartite agreement, however, as far as the N.O.C is concerned, the same was already available on the website of RERA. In such circumstances, since no outstanding amount was paid, consequently, by means of order dated 18.08.2021, the allotment of the respondent was cancelled. It is stated that later, a sale deed had been executed in the month of February, 2024 and as such the directions given by the Real Estate Appellate Tribunal do not take note of the subsequent developments, in fact, the issue of cancellation of allotment which was decided by the appellate tribunal is also against the weight of the material on record.

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It is also urged by the learned counsel for the appellant that the order which has been passed by the REAT appears to be in the nature of specific performance and such a part is only conferred upon the regular course and cannot be exercised by the RE or the RERA authorities.

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Sri Rishi Saxena learned counsel for the respondent has refuted the aforesaid submissions and it has been urged that all throughout the respondent had been requiring the appellant to provide a completion certificate. The appellant had taken a wavering stand in as much as they had first tried to build up their case that they had deemed N.O.C, however, it is only at a later stage that the N.O.C was granted and without having the

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N.O.C in question, there was no occasion for the appellant to state that they were ready to offer the possession and demand the balance sale consideration from the respondent. It is further submitted that a deliberate endeavour was made by the appellant to deprive the respondent of his allotment and that is for the said purpose that during the pendency of the proceedings the allotment was cancelled.

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It is further urged that the issue that the sale deed has been executed in favour of the third party was not the subject matter before the RERA nor it was brought on record before the Real Estate Appellate Tribunal. It is in the aforesaid circumstances, where the appellate tribunal has recorded a finding that the respondent was ready to deposit the amount even though under protest, this did not permit the appellant herein to cancel the allotment. In the aforesaid circumstances, the direction given by the appellate tribunal cannot be faulted and no question of law arises in the instant second appeal which deserves to be dismissed.

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Having heard the submissions of learned counsel for the parties, this Court is of the opinion that matter requires consideration.

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The appeal under Section 58 of the RERA Act is admitted on the following questions:

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(i) whether the respondent was ready to comply with his obligation in terms of agreement dated 04.10.2016.

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(ii) whether the appellant had the necessary N.O.C regarding completion of the project to enable it to offer possession to the respondent and demand the outstanding sum in terms of the agreement dated 04.10.2016.

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(iii) whether the appellant were justified in cancelling the allotment during pendency of the proceedings before the RERA authorities as well as the appellate tribunal.

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(iv) whether RERA or the REAT have power to enforce the agreement entered between the parties even though it would in certain circumstances would amount to specific performance.

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Since the respondent has already put in appearance, no fresh notice is required, however, it will be open for the respondent to bring any document on record along with their counter affidavit which was part of the record of RERA or REAT.

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List this matter for hearing in the week commencing 26.05.2025.

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As an interim measure, it is provided that the parties shall maintain status quo, provided the appellant shall deposit a sum of Rs.35 lacs within a period of six weeks from today before this Court which shall be kept in an account which shall be attracting maximum interest, subject to the final outcome of the instant appeal.

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In case, the amount is not deposited, the appellant shall not be entitled to the interim protection.

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Order Date :- 5.4.2025 Harshita

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Digitally signed by :- HARSHITA High Court of Judicature at Allahabad, Lucknow Bench

M/S M.I. Builders Pvt. Ltd., Lko. Thru. Authorized Signatory Syed Mohd. Qadar Ali v. Anju Verma Singh

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M/S M.I. Builders Pvt. Ltd., Lko. Thru. Authorized Signatory Syed Mohd. Qadar Ali v. Anju Verma Singh

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