Dismissed

Lily Realty Pvt. Ltd., v. Yerasi Srilekha

Karnataka HC2 Dec 2022WP/18437/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka disposed of a writ petition filed by a developer challenging interim orders of the RERA adjudicating authority. Holding that an appeal under Section 43(5) is the appropriate remedy, the Court directed the petitioner to file an appeal before the Appellate Tribunal within two weeks.

What did the court decide?

Petition disposed; liberty to file appeal under Section 43(5) of the Act before the Appellate Tribunal within two weeks.

Lily Realty Pvt. Ltd., Vs Yerasi Srilekha — Writ and Judicial Review | Karnataka HC (2022)

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WP No. 18437 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2^ND DAY OF DECEMBER, 2022 BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 18437 OF 2022 (GM-RES)

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BETWEEN:

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LILY REALTY PVT. LTD., A COMPANY UNDER THE COMPANIES ACT, 2013, HAVING OFFICE AT FLOOR 3, PLOT NO. 254, A BAND BOX, DR. ANNIE BESANT ROAD, WORLI COLONY, MUMBAI-400 030,

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REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE MR. SHRIKANT BAGADE

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…PETITIONER

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(BY SRI. TEJAS S R., ADVOCATE)

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AND:

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YERASI SRILEKHA Digitally signed by WIFE OF KASI VISHWANATH, PADMAVATHI B K AGED ABOUT 27 YEARS, Location: HIGH COURT OF JEEVANS GRANDEUR, KARNATAKA C 210, BELATHUR ROAD, KUMBENA AGRAHARA, KRISHNARAJAPURA, BENGALURU-560 067.

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KASI VISHWANATH SON OF CHANDRASHEKAR REDDY, AGED ABOUT 29 YEARS,

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WP No. 18437 of 2022

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JEEVANS GRANDEUR, C 210, BELATHUR ROAD, KUMBENA AGRAHARA, KRISHNARAJAPURA, BENGALURU-560 067.

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PRADEEP KUMAR DHANDHANIA SON OF LATE SATYANARAYANAN DHANDANIA, AGED ABOUT 46 YEARS, FLAT NO. 1201, GINGER BLOCK, SALARPURIA GREENAGE, HOSUR ROAD, BOMMANAHALLI, NEAR OXFORD COLLEGE, BENGALURU-560 068.

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MONALISA DHANDHANIA WIFE OF PRADEEP KUMAR DHANDANIA, AGED NOT KNOWN, FLAT NO. 1201, GINGER BLOCK, SALARPURIA GREENAGE, HOSUR ROAD, BOMMANAHALLI, NEAR OXFORD COLLEGE, BENGALURU-560 068.

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MAHESH SUKUMAR FATHERS NAME NOT KNOWN AND AGE NOT KNOWN, CEDAR A901, GODREJ WOODSMAN, HEBBAL, BENGALURU-560 024.

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NITIN MITTAL FATHERS NAME NOT KNOWN AND AGE NOT KNOWN, NO. 9, MODEL HOUSE STREET, BASAVANAGUDI, BENGALURU-560 004.

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WP No. 18437 of 2022

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KRITI GOYAL FATHERS NAME NOT KNOWN AND AGE NOT KNOWN, NO.9, MODEL HOUSE STREET, BASVANAGUDI, BENGALURU-560 004.

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MANISH MALHOTRA AGED ABOUT 51 YEARS, FATHERS NAME NOT KNOWN, 204, PRAKRUTHI ENCLAVE ANNEXE, NO.10, 6TH MAIN, HAL 3RD STAGE, JEEVANBEEMANAGAR, BENGALURU-560 075.

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SUSHMA MALHOTRA FATHERS NAME NOT KNOWN, AGED ABOUT 80 YEARS, 204, PRAKRUTHI ENCLAVE ANNEXE, NO.10, 6TH MAIN, HAL 3RD STAGE, JEEVANBEEMANAGAR, BENGALURU-560 075.

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GURPRIT SINGH JOHAL FATHERS NAME NOT KNOWN, AGED ABOUT 44 YEARS, E-1102, MONT VERT GRANDE, SUTARWADI-PASHAN LINK ROAD, SUTARWADI, PASHAN, PUNE, MAHARASHTRA-411 021.

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SALONI BRAHAMACHARI WIFE OF ANKAN BRAMHACHARI, AGED ABOUT 35 YEARS, CHAMBER NO.23, R.K. GARG BLOCK, SUPREME COURT OF INDIA, BHAGWAN DAS ROAD, NEW DELHI-110 001.

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WP No. 18437 of 2022

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ANKAN BRAHAMACHARI FATHERS NAME NOT KNOWN, AGED ABOUT 41 YEARS, CHAMBER NO.23, R.K. GARG BLOCK, SUPREME COURT OF INDIA, BAGWAN DAS ROAD, NEW DELHI-110 001.

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VIJAY JOHN PAUL FATHERS NAME NOT KNOWN AND AGE NOT KNOWN, T0404A, PASHMINA WATERFRONT, NEXT TO HOTEL EVOMA, BHATTARAHALLI, BENGALURU-560 049,

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ALTERNATIVELY AT: HOUSE NO.317, FOURTH MAIN ROAD, OMBR LAYOUT, BANASWADI, BENGALURU-560 043.

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KARNATAKA REAL ESTATE REGULATORY AUTHORITY SECOND FLOOR, SILVER JUBILEE BLOCK 3RD CROSS ROAD, CSI COMPOUND, MISSION ROAD, SAMPANGI RAMA NAGARA BENGALURU-560 027.

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…RESPONDENTS

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(BY SRI. JOSEPH ANTHONY, ADVOCATE FOR R13,

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SRI. RAVISHANKAR, ADVOCATE FOR R3 AND R4,

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SRI. RAMA R.IYER, ADVOCATE FOR R5, R8 AND R9,

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SRI. B.S.SUDHINDRA, ADVOCATE FOR R11 AND R12,

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SRI. GAUTHAM DEV ULLAL, ADVOCATE FOR R14.

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SRI. V.V.GUNJAL, ADVOCATE FOR R6)

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WP No. 18437 of 2022

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 PRAYING TO CALL FOR THE RECORDS PERTAINING TO THE SAID COMPLAINTS NAMELY COMPLAINT NOS.9400,8069,8687,8887,8072,8078,8164,8521 AND 8254 FROM THE HONBLE KARNATAKA REAL ESTATE REGULATORY AUTHORITY AND ETC.,

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner – M/s. Lily Realty Pvt. Ltd. (hereinafter referred to as the ‘company’ for short) is before this Court, calling in question certain interim orders passed by the authority under the Real Estate (Regulation and Development) Act, 2016 (‘Act’ for short).

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Heard Sri. Tejas S.R., learned counsel appearing for the petitioner, Sri. Joseph Anthony, learned counsel appearing for respondent No.13, Sri. Ravishankar, learned counsel appearing for respondents No.3 and 4, Sri. Rama R. Iyer, learned counsel appearing for respondents No.5, 8 and 9, Sri. B.S. Sudhindra, learned counsel appearing for respondent

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WP No. 18437 of 2022

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No.14, Sri. V.V. Gunjal, learned counsel appearing for respondent No.6 and perused the materials on record.

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The submission at the time when the notice was issued and interim stay of all further proceedings was granted on 10.03.2022, 11.08.2022 and 18.08.2022, was that the adjudicating authority has not heard the petitioner and even if they are heard, the orders that are passed are in the nature of final relief, which are granted at the interim stage and therefore, the submission was, it is in violation of principles of natural justice and the writ petition would become maintainable in the peculiar facts of this case. This Court passed an interim order on 17.10.2022, owing to the submission made by the learned counsel appearing for the petitioner.

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The respondents have entered appearance and have filed their objections.

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Respondents No.3 and 4 would take this Court to

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the documents appended to the petition seeking to demonstrate that the petitioner was never present before the

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adjudicating authority on several occasions. Service to be

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effected on him had become a herculean task to the adjudicating authority, as the address at the office that they had indicated, had been demolished and no new address was furnished to the authority. Finally, they were served and after service, they have appeared and filed certain objections and the orders are passed by the authority owing to the absence and serious lapses on the part of the petitioner – Company. All the other advocates would toe the lines of the learned counsel appearing for respondents No.3 and 4.

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The learned counsel representing respondent No.13 would contend the promoter of the petitioner was directed to be present before the Court, it is only then they have rushed to this Court, raising pleas that are untenable.

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All the respondents would in unison contend that the writ petition is not maintainable in the form that it is presented, for the reason that, an appeal under Section 43(5) of the Act is a remedy available and all these contentions will

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have to be addressed before the Appellate Tribunal, as the writ

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petition, is not maintainable.

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I have given my anxious consideration to the

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submissions made by the respective learned counsel and have perused the material on record.

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The issue lies in a narrow compass. The entertainment of the petition would depend on one fact; whether the petitioner was afforded reasonable opportunity of hearing, prior to the passage of the orders, which is whether the orders were passed in, compliance with principles of natural justice.

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The order sheet appended to the objections filed by respondents No.3 and 4 would unequivocally indicate that the petitioner was afforded an opportunity of hearing, he was notified, he was present and has filed his objections. The objections have resulted in the impugned order. Therefore, it is not a case where the petitioner was not heard in the matter, he

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WP No. 18437 of 2022

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was infact heard. Therefore, the plea that it is in violation of principles of natural justice, is unsustainable.

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The other submission of the learned counsel for the petitioner is that common orders are passed without considering any of the objections filed by the petitioner. The learned counsel for the petitioner would seek to impress upon the fact that there are plethora of contentions advanced in the objections, as to why the project could not be implemented, those contentions are not considered. If this be the submission, the remedy is before the Tribunal in an appeal.

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A perusal at the orders in certain complaints would indicate that, the complainants had sought refund of the amount. The refund of the amount was therefore a final relief, this is ordered by way of an interim relief. This final relief could not have been granted by way of an interim order. This action of the adjudicating authority is challengeable by the petitioner, before the Tribunal. In few of the cases, possession is directed to be handed over to the complainants again by way

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of interim relief, which had to be given at the final stage. All these order undoubtedly appealable before the Tribunal.

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It is for the Tribunal to pass appropriate orders, in accordance with law.

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11. For the aforesaid reasons, following:

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ORDER

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i. The petition stands disposed reserving liberty to the petitioner to approach the Appellate Tribunal under Section 43(5) of the Act.

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ii. The petitioner shall file an appeal before the Appellate Tribunal, within a two weeks, from the date of receipt of a copy of this order.

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iii. In the event, if the petitioner would file an appeal, within a two weeks' with an application seeking certain directions, the Tribunal shall consider the same within a two weeks, thereafter and pass appropriate orders in accordance with law.

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iv. The appeal shall be preferred in terms of Section 43(5) of the Act. Till such time, the Tribunal

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WP No. 18437 of 2022

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considers the application within the time frame as is

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indicated. No precipitative action shall be taken against the petitioner.

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v. Filing of the appeal will not come in the way of the parties to the lis settling their dispute by Mediation or otherwise.

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Ordered accordingly.

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Sd/JUDGE

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Lily Realty Pvt. Ltd., v. Yerasi Srilekha

Case brief

What is this about?

What did the court decide?

Lily Realty Pvt. Ltd., v. Yerasi Srilekha

Case brief

What is this about?

What did the court decide?

What the court decided

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