Partly allowed

Shahrukh Adi Khan and Anr. v. Skylink Hospitality LLP and 4 Ors.

Bombay HC5 Dec 2023SJ/13/2023

Case brief

AI extract

What is this about?

In a suit for refund of amount paid for a flat, the Defendants raised jurisdictional objections under the RERA Act and challenged the suit's maintainability as a summary suit. The Court held triable issues existed and granted conditional leave to defend subject to security deposit.

What did the court decide?

Leave to defend granted subject to deposit of Rs. 1,34,09,392/- within four weeks; suit transferred to Commercial Causes list upon compliance.

Shahrukh Adi Khan and Anr. Vs Skylink… — Contract and Commercial Disputes | Bombay HC (2023)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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SUMMONS FOR JUDGMENT NO.13 OF 2023
IN

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SUMMARY SUITS NO.7 OF 2023

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Shahrukh Adil Khan and Anr.…Plaintiffs
 V/s.
Skylink Hospitality LLP and Ors.…Defendants.

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Mr.Pramod Bhosale with Mr. Praful Valvi, Mr. Mangesh Padvi i/b Ms.
Devika Nigade, Advocates for the Plaintiffs.

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Ms.Hrushi Narvekar with Ms. Sakshi Sabooo i/b DSK Legal, Advocates for
the Defendants No.1 & 5.

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 CORAM: ABHAY AHUJA, J.
 RESERVED ON : 26th OCTOBER, 2023
PRONOUNCED ON : 5th DECEMBER, 2023

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ORDER:

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1. This suit has been filed by the Plaintiffs as a Summary Suit for

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recovery of an amount of Rs. 1,64,09,392/- along with interest at the rate

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of 12% p.a. from the date of the suit till payment and/or realization and

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costs of the suit.

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2. The Plaintiffs’ case in the plaint is as under :

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(a) The Plaintiffs are senior citizens who had paid monies to the
Defendants for a house in Mumbai to be used for residence purposes
after retirement and paid an amount of Rs.83,84,543/- to the
Defendants pursuant to a booking form and an allotment letter for a
flat on the 11th floor of a project by the name of Mirabilis Plug and
Play Homes jointly developed by Defendants no.1, 4 and 5. The
Plaintiffs were shown a proposed plan of a proposed flat on the 11th
floor having a carpet area of 97.17 square meters equivalent to 1046
square feet in the “B” Wing of the building known as Mirabilis
proposed to comprise two wings with common podium on a portion
of land bearing Survey No.368, Hissa No.42(Part) of Village
Kolekalyan, Santacruz (East), Mumbai–400055 and the total
consideration would be Rs.4,14,21,600/-. As per the allotment letter,
the possession of the flat was to be given earliest by 30th June 2019
and latest by 31st December 2019. It is the case of the Plaintiffs that
they were promised that the agreement would be executed in due
course, however, on one pretext or the other, the Defendants kept on
delaying the execution and registration of the agreement, despite
repeated assurances from time to time.

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(b) On 29th July 2017, an email was received from the Defendants that
on account of certain external factors beyond their control, there was
a delay in completion of the project which would be concluded by
31st December 2020 and the monetary loss faced by the Plaintiffs
would be compensated at the rate of 8.5% per annum.

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(c)On 14th August 2017, the Plaintiffs sent an email as to the calculation
of cut off compensation as well as regarding the intermediate
milestones for completion and hand over of the flat on 31st December
2020. The said email was replied to by the Defendants and the cut
off date was stated as July 2017 and that the compensation amount
would be adjusted against the next demand. Thereafter, on 16th
March 2018 the office of the Defendants informed the Plaintiffs by
email that there was a delay in starting the project as the same was
Slum Rehabilitation Area (SRA) Project and that for the security of
Plaintiffs’ monies, the Defendants would initiate the refund process of
stamp duty and registration amount that was paid to the government.
On 29th March 2018 the Defendants’ office sent a refund form for
stamp duty registration which was given by the Plaintiffs.

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(d) On 20th August 2018 the Plaintiffs enquired about the status of the

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refund and also requested for information about the status of
construction on site which was replied with the information that the
Plaintiffs had to visit the Registration office and that the excavation
had started. Thereafter, the Plaintiffs were informed that sudden
changes were made in the plans and there was a delay in the project.
The Plaintiffs sent an email dated 20th August 2018 requesting a
detailed report on the changes made to the original building plans for
both Mirabilis and SRA and also if the Defendants had permission for
10 floors or 14 floors. Although the Plaintiffs were informed that the
plans and details would be shared in seven to ten days, no such
information was furnished to the Plaintiffs. Thereafter, on 30th
November 2018, the Plaintiffs sent another email stating that they
did not want to continue with the project and wanted to withdraw
from the project with immediate effect and requested the Defendants
to commence the procedure of return of the principal amount with
interest.

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(e) On 1st December 2018 the Defendants’ office sent an email
forwarding a cancellation letter to be filled. Be email dated 3rd
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December 2018, the Plaintiffs informed that the cancellation form did

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not cover refund of interest amount and to confirm that the same
would be refund as well.

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(f)The Plaintiffs submit that after continuous follow up for updates from
the Defendants’ office on several occasions, the Defendants sent an
email dated 17th January 2019 to the Plaintiffs stating that they will
pay interest at the rate of 8.5% from receipt of payment till payment
is made. The Defendants also requested to grant time till March to
give refund to the Plaintiffs. The Plaintiffs submit that the
Defendants thus admitted their liability to pay the amounts along
with interest.

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(g) By an email dated 18th January 2019, the Plaintiffs granted time till
10th March 2019 for refund of the amounts to which there was a
prompt reply that the Defendants would update as soon as the refund
amount was ready. However, there was no update on the refund
amounts. That, thereafter, the Plaintiffs sent emails on 4th March
2019, 27th March 2019 requesting the Defendants to update the
status of refund. Thereafter, the Defendants sent an email on 28th

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March 2019 stating that the payment would be made by May 2019
and the Defendants would pay interest at 9% per annum. By an
email dated 22nd May 2019, the Defendants once again informed the
Plaintiffs that payment of refund was still under process and the
same would be refunded only in July 2019 along with interest at the
rate of 9% as confirmed earlier. According to the Plaintiffs, this was
yet another admission of liability on behalf of the Defendants.

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(h) That thereafter, since no amounts were refunded by the Defendants,
the Plaintiffs sent emails dated 15th August 2019 and 6th September
2019 reminding the Defendants that over a year had passed without
any payment and the Plaintiffs had been patiently waiting for the
refund.

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(i) On 14^th September 2019, the Defendants raised certain excuses for non-payment of amounts and requested further ninety days to make the payment. Plaintiffs sent emails dated 13^th October 2019 and 27^th November 2019 reminding the Defendants to make payment at the end of ninety days viz. by December 2019.

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(j)By an email dated 28th November 2019, the Defendants informed
that they were working towards the repayment schedule. It is the
case of the Plaintiffs that despite of giving sufficient time to the
Defendants to refund the amounts, the Defendants failed to refund
the monies to the Plaintiffs and instead of making payment addressed
an email dated 18th December 2019 seeking extension of time by
stating that they were unable to make the payment of amount as per
the schedule mentioned therein and the entire amount would be paid
by 30th April 2020. By an email dated 31st January 2020, the
Defendants requested further extension to make payment as per the
schedule stating that the entire amount would be paid by 25th June
2020. The Defendants had also annexed post dated cheques but the
Plaintiffs have not yet received any cheques which was
communicated to the Defendants by an email dated 11th March 2020.

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(k) It is submitted that, in the meantime, the Plaintiffs kept on co-
operating with the Defendants and requesting for refund of the
monies. By an email dated 21st November 2020, the Defendants’
office attached worksheet for refund with interest. However, no
payment was received.

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(l)Thereafter, the Plaintiffs, through one of their common friend
Mr.Jimmy, contacted the Defendant no.3, being the Chairman and
majority shareholder of the Defendant no.4, who assured that he will
take care of the issue of the Plaintiffs and also replied to Jimmy that
he is sorting out the issue. It is submitted that based on the said
assurance, Plaintiffs did not take any legal steps for recovery of the
said amounts.

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(m)By an email dated 26th March 2021, the Defendants once again
sought time to make the payment and that they would be able to
start repayment in installments only from 27th April of the next
financial year. It is submitted that, thereafter, the Plaintiffs patiently
waited till 27th April 2021 for their first installment, however, no
monies were paid. The Plaintiffs also sent an email dated 7th May
2021 enquiring about the status of the cheques as all the earlier
cheques were withdrawn by the Defendants. It is submitted on
behalf of the Plaintiffs that after numerous efforts on several
occasions, the Plaintiffs were handed over cheques of the amounts,
however said cheques bounced with the remark that the payment
was stopped by the drawer. The Plaintiffs’ case is that the

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Defendants have cheated the Plaintiffs and harassed the Plaintiffs
which is causing tremendous mental stress to the Plaintiffs. The
Plaintiffs also submit that they have undergone tremendous stress
and pressure due to the action of the bouncing of the cheques.

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(n) It is submitted that, thereafter, the Plaintiffs issued a notice dated
19th January 2023 jointly calling upon the Defendants to refund the
monies of the Plaintiffs.

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(o) It is submitted that, based on the assurances and statements made by
the Defendants, the Plaintiffs, at the relevant time, did not initiate
any legal proceedings against the Defendants. That, the Defendants
also met the Plaintiffs personally on several occasions and requested
for further time. That, despite passage of substantial time, the
Defendants did not pay the entire amount. It is submitted that the
Defendants through several emails have admitted that the amounts
were received by them and that they would return the monies,
thereby admitting the liability.

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(p) That, since despite several notices, the Defendants failed to make payment of the outstanding dues to the Plaintiffs, being convinced

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that the Defendants were not ready and willing to fulfill their
promises, after the Plaintiffs having called upon the Defendants to
jointly and severally pay the sum of Rs.83,84,543/- plus interest of
Rs.50,24,849/- at the rate of 9% per annum from the date of
payment till 21st March 2023, the Plaintiffs were constrained to file
this suit as a summary suit on the basis of acknowledgment of
liability by the Defendants for Rs.1,34,09,392/- and the
compensation for the mental stress and agony including the health
issues calculated at Rs.30,00,000/- by the Plaintiffs, totalling to
Rs.1,64,09,392/- along with further interest at the rate of 12% per
annum from the date of filing of the suit till realization, as per the
particulars of the claim at Exhibit MM.

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3.The Defendants No.1 and 5 have entered appearance, whereafter a
Summons for Judgment was taken out by the Plaintiffs. To the Summons
for Judgment, Defendants No.1 and 5 have filed a reply raising
preliminary objection as to the maintainability of the suit and also that
this Court lacks jurisdiction to entertain the suit and grant the reliefs
contained therein.

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4. It is submitted that the Plaintiffs have failed to make a specific

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averment in the Plaint stating that the same has been filed under Order
XXXVII of the Code of Civil Procedure, 1908 (CPC) despite that being a
mandatory requirement under Order XXXVII Rule 2(a) of the CPC and has
also failed to make a specific averment that no relief which does not fall
within the ambit of Order XXXVII of the CPC has been claimed in
accordance with Order XXXVII Rule 2(b). That, to the contrary, the
Plaintiffs have claimed compensation of Rs.30,00,000/- on account of
“mental stress and agone including health issues” which is entirely outside
the object and scope of Order XXXVII of the CPC. Since the provisions of
Order XXXVII of the CPC are mandatory in nature and not merely
directory, the non-compliance of Order XXXVII Rules 1 and 2 would result
in the suit falling outside the ambit of Order XXXVII of the CPC, as a
consequence of which the Summons for Judgment would not be
maintainable.

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5. It is further submitted that this Court does not have jurisdiction to entertain the present suit as the same is barred by Section 79 of the Real Estate (Regulation and Development) Act, 2016 (the “RERA Act”).

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6.In the case at hand, it is observed that issue of jurisdiction has been
raised by the Defendants. Section 79 bars the jurisdiction of a Civil Court
to entertain any suit or proceeding in respect of any matter which the
Authority or the adjudicating officer or the Appellate Tribunal is
empowered by or under the Act. The issue of jurisdiction itself becomes
the triable issue.

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7.Mr. Hrushi Narvekar, learned Counsel for the Defendants no.1 and
5 submits that the suit being barred under Section 79 of the RERA Act, the
Plaint be rejected under Order 7 Rule 11 (d) of the CPC as being barred by
law, although no separate Application has been preferred on behalf of the
said Defendants.

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8.It is submitted that the Plaintiffs are allottees under Section 2(d) of
the RERA Act and the project in which the flat has been allotted is covered
within the ambit of Section 2(zj) and 2(zn) of the RERA Act and therefore
the grievances for refund of the amount paid towards the allotment would

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lie before the Maharashtra Real Estate Regulatory Authority (the
“MahaRERA”) and not a Civil Court.

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9.Learned counsel would submit that therefore any grievance for
refund of amount paid towards the allotment would lie before the Maha
RERA Tribunal and not a Civil Court. Learned Counsel submits that
Section 79 of the RERA Act provides for a specific bar on the jurisdiction
of Civil Courts to entertain any suit or proceeding in respect of which the
authority is empowered by or under RERA Act to determine. The Plaintiffs
are allottees under the RERA Act and hence barred from invoking
jurisdiction of a Civil Court. The Project as mentioned above is registered
with MAHARERA and there is special mechanism under the RERA Act for
redressal of grievances. Therefore, the Plaintiffs are barred from
approaching this Court seeking reliefs. That only the authority or
adjudicating officer under the RERA Act has jurisdiction to entertain and
adjudicate. Learned Counsel refers to Order VII Rule 11 (d) of the CPC
and submits that since the Suit is barred under Section 79 of the RERA
Act, the Plaint deserves to be rejected under the said provisions of the
CPC. Learned Counsel has sought to take this Court through the various
provisions of the RERA Act including following Sections, in support of his
contentions:-

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“2(c)“agreement for sale” means an agreement entered into
between the promoter and the allottee;

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2(d) “allottee” in relation to a real estate project, means the
person to whom a plot, apartment or buildings, as the case
may be, has been allotted, sold (whether as freehold or
leasehold) or otherwise transferred by the promoter, and
includes the person who subsequently acquires the said
allotment through sale, transfer or otherwise but does not
include a person to whom such plot, apartment or building,
as the case may be, is given on rent;

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2(k) “carpet area” means the net usable floor area of an
apartment, excluding the area covered by the external walls,
areas under services shafts, exclusive balcony or verandah
area and exclusive open terrace area, but includes the area
covered by the internal partition walls of the apartment;

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2(n) “common areas” mean-

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(i)the entire land for the real estate project or where the
project is developed in phases and registration under this Act
is sought for a phase the entire land for that phase;

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(ii)the staircases, lifts, staircase and lift lobbies, fire
escapes, and common entrances and exists of buildings;

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(iii)the common basements, terraces, parks, play areas,
open parking areas and common storage spaces;

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(iv)the premises for the lodging of persons employed for
the management of the property including accommodation
for watch and ward staffs or for the lodging of community
service personnel;

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(v)installations of central services such as electricity, gas,
water and sanitation, air-conditioning and incinerating,
system for water conservation and renewable energy;

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(vi)the water tanks, sumps, motors, fans compressors,
ducts and all apparatus connected with installations for
common use;

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(vii)all community and commercial facilities as provided in
the real estate projects;

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(viii)all other portion of the project necessary or convenient
for its maintenance, safety, etc., and in common use;

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18.Return of amount and compensation
(1)If the promoter fails to complete or is unable to give

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possession an apartment, plot or building, -

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(a)in accordance with the terms of the agreement
for sale or, as the case may be, duly completed by the
date specified therein; or

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(b)due to discontinuance of his business as a
developer on account of suspension or revocation of
the registration under this Act or for any other reason,
he shall be liable on demand to the allottees, in case
the allottee wishes to withdraw from the project,
without prejudice to any other remedy available, to
return the amount received by him in respect of that
apartment, plot, building, as the case may be, with
interest at such rate as may be prescribed in this behalf
including compensation in the manner as provided
under this Act:

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Provided that where an allottee does not intend to withdraw
from the project, he shall be paid, by the promoter, interest
for every month of delay, till the handing over of the
possession, at such rate as may be prescribed.

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(2)The promoter shall compensate the allottees in case of
any loss caused to him due to defective title of the land, on
which the project is being developed or has been developed,
in the manner as provided under this Act, and the claim for
compensation under this sub-section shall not be barred by
limitation provided under any law for the time being in force.

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(3)If the promoter fails to discharge any other obligations
imposed on him under this Act or the rules or regulations
made thereunder or in accordance with the terms and
conditions of the agreement for sale, he shall be liable to pay
such compensation to the allottees, in the manner as provided
under this Act.

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31. Filing of complaints with the Authority or the adjudicating officer

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(1)Any aggrieved person may file a complaint with the
Authority or the adjudicating officer, as the case may be, for
any violation or contravention of the provisions of this Act or

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the Rules and Regulations made thereunder against any
promoter allottee or real estate agent as the case may be.
Explanation.- For the purpose of this sub-section “person”
shall include the association of allottees or any voluntary
consumer association registered under any law for the time
being in force.

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(2)The form, manner and fees for filing complaint under
sub-section (1) shall be such as may be [substituted for the
words “specified by regulations” by the Real Estate
(Regulation and Development) Removal of Difficulty Order
2016(w.e.f. 28.10.2016)]

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79. Bar of jurisdiction

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No civil court shall have jurisdiction to to entertain any suit
or proceeding in respect of any matter which the Authority or
the adjudicating officer or the Appellate Tribunal is
empowered by or under this Act, to determine and no
injunction shall be granted by any court or other authority in
respect of any action taken or to be taken in pursuance of any
power conferred by or under this Act.”

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10.Learned Counsel submits that once there is a relationship of allottee
and promoter, the proper course of action would be to take recourse
under Section 18 and 31 of the RERA Act for return of the amounts paid
to the promoter. Learned Counsel would submit that the entire machinery
under the RERA Act is to facilitate resolution of the disputes such as the
one between the Plaintiffs and the Defendants herein. Learned Counsel
submits that the orders passed by the authorities are appealable before the
Appellate Tribunal under the RERA Act and the orders passed by the

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Appellate Tribunal are executable as a decree and are also appealable to
the High Court as a second appeal on grounds specified in Section 100 of
the CPC. Learned Counsel also submits that the claim for compensation of
Rs.30,00,000/- claimed by the Plaintiffs on account of mental stress and
agony including health issues can be adjudicated under Section 71 of the
RERA Act, which empowers the authority to adjudge compensation and
certainly not as a claim on a summary suit. Learned Counsel would submit
that the adjudicating officer has also to take care of the various factors as
specified in Section 72 of the RERA Act, while adjudging the quantum of
compensation or interest. Learned Counsel submits that therefore the
RERA Act is a complete Code to adjudicate the amounts claimed by the
Plaintiffs in this suit having a complete machinery from the authority to
appeal before the Appellate Tribunal as well as this Court and therefore,
the bar of the jurisdiction of a Civil Court under Section 79 to entertain
any suit or proceeding in respect of any matter which the authority or the
adjudicating officer or the Appellate Tribunal is clearly justified. Learned
Counsel therefore submits that this suit be dismissed on this ground alone.

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11.Mr.Narvekar has relied upon the following two decisions in support
of his contentions, that when there is an express bar on the jurisdiction of
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this Court, then this Court cannot entertain or try the claim of the
Plaintiffs:-

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1.Joydeep Roy and Another Vs. Srijan Residency LLP and Ors1
2.Dhulabhai ETC Vs. State of Madhya Pradesh and Anr2

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12.Learned Counsel for the Defendants no.1 and 5 further submits that

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the allotment letter is an agreement for sale as defined under Section 2 (c)
of the RERA Act. Learned Counsel seeks to rely upon a Judgment of the
Maharashtra Real Estate Appellate Tribunal, Mumbai in the case of
Mrs.Jyoti K. Narang & Anr. vs. CCI Projects Pvt.Ltd.3 to submit that a
document of which is styled as an allotment letter is an agreement for
sale and purchase between the parties and intention of the parties is to be
gathered from the terms and conditions of the transactions incorporated
in the document of the transaction which is important and substantial to

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decide the nature of the transaction and not the title of the document of
the transaction.

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13.On the other hand, Mr.Pramod Bhosale, learned Counsel for the
Plaintiffs would submit that the letter of allotment dated 6th June, 2016

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1 2023 SCC OnLine Cal 3408

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2 1968 SCC OnLine SC 40

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has been cancelled and therefore, there is no relationship between the
Plaintiffs and the Defendants as allottee and promotor. Learned Counsel
draws the attention of this Court to the communications between the
Plaintiffs and the Defendants at pages 91 (Exhibit-M) and 93 (Exhibit-N)
as well as page 76 (Exhibit-G), page 107 (Exhibit-U) and page 109
(Exhibit-V) to submit that the Plaintiffs had due to the long delay and
uncertainty of delivery of possession of the subject flat, withdrawn from
the project and requested for return of the principal amount along with
the interest, which request was acceded to by the Defendants by
furnishing a cancellation request form which was filled up and sent to the
Defendants, after which the Defendants have acknowledged the receipt of
the same and also admitted that the refund was under process and would
be paid by July, 2019 along with interest.

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14.Learned Counsel further submits that in pursuance of aforesaid, the
Defendants have also issued cheques to the Plaintiffs, which have been
dishonoured. That thereafter being left with no option, the Plaintiffs had
issued a legal notice to the Defendants for recovery of the amounts but
since despite the same, the payments were not made, the Plaintiffs were
constrained to file the subject summary suit.

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15.Learned Counsel would submit that the present suit is based on a
clear admission of liability of the Defendants to pay the amounts to the
Plaintiffs along with interest. The said summary suit is not filed by the
Plaintiffs in their capacity as allottee of the subject flat as the said
allotment had already been cancelled and the suit has been filed
thereafter. Learned Counsel refers to the paragraph 5 of the rejoinder and
submits that the Defendants have not only admitted the contents of the
summary suit but also issued cheques which were dishonoured as
“payment was stopped by the drawer”.

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16. Without prejudice to above, Mr.Pramod Bhosale, for the Plaintiffs
would submit, drawing the attention of this Court to Section 18 of the
RERA Act, that in case an allottee wishes to withdraw from the project,
the allottee has an option to either go under the RERA Act or to avail of
any other remedy for return of the amount, which option the Plaintiffs
have exercised by filing the present summary suit. Learned Counsel would
also submit without prejudice to above contentions that with respect to
the claims of the Plaintiffs regarding compensation for mental stress and
agony including health issues, Plaintiffs are willing to drop the same to
maintain the same as a summary suit.

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17. Mr.Pramod Bhosale, learned Counsel for the Plaintiffs relies upon
the decision of the Division Bench of this Court in the case of Rajesh
Laxmichand Udeshi @ Bhatia Vs. Pravin Hiralal Shah4 to submit that the
suit as filed can be maintained as a summary suit. The learned Counsel
relies upon the paragraph 8 of the said decision in support, however,
submitting that he is willing to forego the claim of compensation with
respect to the agony suffered by the Plaintiffs.

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18.I have heard Mr.Bhosale, learned Counsel for the Plaintiffs and
Mr.Narvekar, learned Counsel for the Defendants no.1 and 5 and with
their able assistance considered the rival contentions.

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19.The Plaintiffs have made a claim of Rs.1,64,09,392/- which includes
the amount of Rs.83,84,543/- which the Plaintiffs had paid to the
Defendants plus Rs.50,24,849/- being the interest at the rate of 9% per
annum as purportedly admitted by the Defendants, in addition
Rs.30,00,000/- as compensation for mental stress and agony including
health issues. The Plaintiffs had withdrawn from the project and requested

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for return of the principal amount along with interest. According to the
Plaintiffs, on 30th November 2018, they cancelled the booking and asked
for refund. The Defendants furnished a cancellation request form which
was filled up and sent to the Defendants. The Defendants acknowledged
the receipt of the same and also agreed to refund. On behalf of the
Plaintiffs, it is claimed that there is no relationship between the Plaintiffs
and the Defendants as allottee and promoter and therefore the provisions
of the RERA Act would not apply. The Plaintiffs have also claimed that
cheques that were issued by the Defendants to the Plaintiffs have been
dishonoured as the payment was stopped by the drawer and therefore also
the suit is not filed by the Plaintiffs in their capacity as allottees of the
subject flat and therefore also, the provisions of the RERA Act would not
apply. That, as per Section 18 of the RERA Act, if the allottee wishes to
withdraw from the project, the allottee has an option to either go under
the RERA Act or to avail of any other remedy for refund of the amount,
which option the Plaintiffs claim to have exercised by filing the present
summary suit.

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Nikita Gadgil

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SJ 13-2023 in SS7-23.odt

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20.On behalf of the Defendants, it has been firstly submitted that the
Plaintiffs have failed to make a specific averment in the Plaint stating that
the same has been filed under Order XXXVII of the CPC despite that being
a mandatory requirement under Order XXXVII Rule 2(a) of the CPC and
have also failed to make a specific averment that no relief which does not
fall within the ambit of Order XXXVII of the CPC has been claimed in
accordance with Order XXXVII Rule 2(b). That, the Plaintiffs have claimed
compensation of Rs.30,00,000/- on account of “mental stress and agony
including health issues” which is outside the object and scope of Order
XXXVII of the CPC. Therefore, the suit would not be maintainable as a
summary suit. It has also been argued that the said claim could be
adjudicated under Section 71 of the RERA Act, although on behalf of the
Plaintiffs it is submitted that the Plaintiffs are willing to drop the claim
with respect to the said compensation. Further, it has been laboriously
argued that pursuant to Section 79 of the RERA Act, this Court has no
jurisdiction as jurisdiction of Civil Courts is barred as the dispute is with
respect to the relationship of the Plaintiffs and the Defendants as allottee
and promoter for which the RERA Act is a complete Code, as has been
submitted on behalf of the Defendants by referring to various provisions of

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SJ 13-2023 in SS7-23.odt

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the RERA Act and that therefore, this Court reject the plaint under Order
VII Rule 11(d) of the CPC although admittedly no application has been
made in this behalf. The issue whether Section 18 of the RERA Act grants
an option to the allottee to prosecute remedies otherwise than provided in
the Act by way of a suit would also require consideration. Both the
learned Counsel have relied upon various judgments in support of their
contentions.

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21.In my view, the Defendants have raised triable issues which cannot
be decided in a summary manner but determined by the Court at the trial.
The above contentious issues including the one of jurisdiction would
require adjudication after considering the defence of the appearing
Defendants in a written statement filed by them.

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22.In paragraph 33 of the judgment in the case of B.L.Kashyap and
Sons Ltd. vs. M/s.JMS Steels and Power Corporation and Anr.5, the

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Hon’ble Supreme Court has observed that grant of leave to defend with or
without conditions is the ordinary rule and denial of leave to defend is an
exception. The defendant is ordinarily entitled to leave to defend unless

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5 (2022) 3 SCC 294 Nikita Gadgil

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SJ 13-2023 in SS7-23.odt

¶158

there be any strong reason to deny the leave. It gets perforce reiterated
that even if there remains a reasonable doubt about the probability of
defence, sterner or higher conditions could be imposed while granting
leave but denying the leave would be ordinarily countenanced only in
such cases where there is no triable issue or the Court finds the defence to
be frivolous or vexatious, which does not appear to be the case at hand.

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23.In view of the above discussion, I am inclined to grant conditional
leave to Defendants no.1 and 5. Accordingly, the following order is
passed:

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ORDER

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(i) Leave to defend the present suit is granted to the Defendants no.1 and 5 subject to their depositing a sum of Rs.1,34,09,392/- within a period of four weeks from the date of uploading of this order.

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(ii) If the aforesaid deposit is made within the stipulated period, this suit shall be transferred to the list of Commercial Causes and the Defendants shall file written statement within a period of four weeks from the date of deposit.

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Nikita Gadgil

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SJ 13-2023 in SS7-23.odt

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(iii)If this conditional order of deposit is not complied with within the
aforesaid period, the Plaintiffs shall be entitled to apply for an ex-
parte decree against the Defendants no.1 and 5 after obtaining a
Non-deposit Certificate from the Prothonotary and Senior Master of
this Court.

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