Wednesday, January 19, 2022
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Allahabad HC stays RERA Tribunal order against Hawelia Builders

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The Allahabad High Court has stayed the recovery order issued by the Real Estate Regulatory Authority (RERA) Tribunal, Lucknow against Hawelia Builders Private Limited.

A single-judge bench of Justice Ali Zamin passed the order while hearing a petition filed by Hawelia Builders Private Limited through its Director.

The counsel for the appellant submitted that the findings of the RERA is against the agreement entered into between the parties. As per agreement, the project was to be completed within a period of three years, allotment was made on December 12, 2014 and with reference to the date of allotment completion period is December 12, 2017.

As per agreement adding grace period completion period is June 12, 2018. The date of applying of the completion certificate shall be presumed as the date of completion and appellant applied for occupancy certificate on May 25, 2018, therefore, he was not on default in completing the project but the authority has misconstrued the document and came to a wrong finding that the project was to be completed by September 17, 2016.

The counsel for the respondents opposed by submitting that on the website date of start has been made September 17, 2013. In view of the date, the project was to be completed by September 17, 2016 and the tribunal came to a correct conclusion.

The counsel for the respondents further submitted that on December 29, 2018 many objections were raised therefore, completion certificate was not issued to the appellant.

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The Court observed that the following substantial questions of law is involved in the appeal :-

1.Whether the findings given by the tribunal are perverse, illegal and contrary to the records?

  1. Whether a manifest error has been committed by the tribunal by completely ignoring the specific terms and conditions of the registered agreement dated 12.12.2014 and the allotment letter dated 30.10.2014 while returning the finding on issue no. (iii), (iv)b, (v), (viii) in respect of the delay in handing over the possession?
  2. Whether the award of interest of the respondent nos. 4 and 5 by the Appellate Tribunal is wholly arbitrary, without jurisdiction and illegal?
  3. Whether the judgements and orders of the tribunal is vitiated in the eyes of law as the forums below have miserably failed to take into considerations that no claim would lie against the appellant in respect of delay in handing over the possession on account of the reasons which is beyond the control of the appellant as per clause 15 stipulated in the registered agreement dated 12.12.2014?
  4. Whether the Appellate Tribunal has erred in deciding the appeal in itself whereas the Tribunal has held that the RERA Authority has exceeded the relief prayed and thus the Tribunal ought to have remanded the matter for reconsideration to the authority in place of directing the issue in itself?
  5. Whether any person can be blamed with any liability for the wrong/ omission done by some other person (in the instant case by the development)?
  6. Whether the Tribunal erred in not considering that the penalties, interest and compensation under the RERA Act, would only apply, once the time period for completion mentioned by the developer, while registering under the RERA Act expires?
  7. Whether the complaint filed by the respondent nos. 4 and 5 is a malicious exercise to illegally retract from a contract and the Tribunal has erred in allowing the said nefarious exercise?
  8. Whether the period of complete lockdown due to Covid-19 Pandemic has been excluded while calculating and awarding the delay penalty upon the Appellant?

The Court Summoned the lower court record and fixed the next hearing of the petition on January 11, 2022.

“Till the next date of listing, the effect and operation of the impugned order dated February 19, 2021 passed by the Real Estate Appellate Tribunal, Lucknow in Appeal No 315 of 2019 (Col (Retd.) Om Prakash Mahto & Manju Mahto vs. M/s Hawelia Builders Pvt Ltd and in Appeal No 364 of 2019 (M/s Hawelia Builders Pvt Ltd vs. Col (Retd.) Om Prakash Mahto and Manju Mahto), shall remain stayed,”

-the order reads.

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