REAL ESTATE

RERA – APPEAL TO APPELLATE TRIBUNAL AGAINST THE

Date of filing .

Date of receipt by post .

Registration No .

Signature .

Authorized Officer .

IN THE _______________ REAL ESTATE APPELLATE TRIBUNAL AT _________

APPEAL NO. ___________ OF 20____

IN

COMPLAINT NO. __________________

____________________ .. Appellant
(Original Respondent)

V/s.

_____________________ & Others . Respondents

1
REAL ESTATE

1. PARTICULARS OF THE APPELLANT:

(i) Name of the Appellant : __________________

(ii) Address of Appellant : __________________

(iii) Address for service of all notices: __________________

2. PARTICULARS OF THE RESPONDENTS:

(i) Names of the Respondents. 1. __________________

2. __________________

3. __________________

4. __________________

5. __________________

(ii) Address of the Respondents. 1. __________________

__________________

2. __________________

__________________

3. __________________

__________________

4. __________________

__________________

5. __________________

__________________

(iii) Address for service of all

C/o. _____________

2
REAL ESTATE

__________________

2. __________________

C/o. _____________

__________________

3. __________________

C/o. _____________

__________________

4. __________________

C/o. _____________

__________________

5. __________________

C/o. _____________

__________________

3. JURISDICTION OF THE APPELLATE TRIBUNAL:

The Appellant declares that the subject matter of the appeal falls

within the jurisdiction of this Honourable Appellate Tribunal.

4. LIMITATION:

The Appellant declares that the appeal is within the limitation

specified in sub-section (2) of Section 44 of the RERA Act.

5. FACTS OF THE CASE:

5.1 By an Order dated_________, the Member/Adjudicating Officer,

_______RERA inter alia directed the Appellant to: (i) pay interest

3
REAL ESTATE

to the Respondents at the rate of _______% on the amounts

allegedly paid by them, (ii) compensation of Rs. ___________/-

towards cost of complaint, (iii) form association/society of the

allottees within two months, (iv) pay municipal property tax

within one month, and (v) upload the Commencement

Certificate (“CC”) within one month. A copy of the Order dated

____________ (“the impugned order”) is annexed as EXHIBIT

‘A’ hereto. The present Appeal is against the impugned order.

5.2 The Appellant is a developer carrying on the business of

development and construction of real estate. The Appellant has

undertaken inter alia redevelopment of land bearing

_____________ admeasuring _________ square meters of

__________________, _______________, _____________, owned by one

_____________________ (“the said society”) under the

Development Agreement dated _______________. It was agreed

under the said Development Agreement that the Appellant was

entitled to construct a building for the members of the said

society and also free sale flats as more particularly set out

therein.

5.3 The Respondents are the flat purchasers in respect of the free

sale flats and had entered into individual agreements with the

Appellant under the terms and conditions and for the

4
REAL ESTATE

consideration more particularly set out in the said agreements.

A few relevant clauses of the said agreements are as under: -

(i) Under clause ______, the Appellant was liable to give

possession of the flats to the flat purchasers on or before

____________ subject to the following conditions that the

Appellant shall be entitled to reasonable extension for

giving delivery of premises on the aforesaid dates if the

completion of the building is delayed inter alia on account

of:

(a) any notice, order, rule, notification of the

government and/or other public or competent

authority;

(b) any other reason beyond the control of the

Appellant;

(c) changes in rules, regulation, byelaws of various

statutory bodies and authorities affecting the

development and the project; and

(d) delay or default in payment of dues by the

purchaser without prejudice to the right of the

Appellant to terminate the said agreement.

Thus, the agreement for sale itself clearly provided the

circumstances in which delay in handing over the

5
REAL ESTATE

premises by the Appellant would be justified and the

same were expressly agreed upon by the Respondents.

(ii) Under clause ________ of the said agreements, the

Respondents as purchasers agreed that they shall be

admitted as members of the said society on payment of all

amounts due and payable by them to the Appellant on the

Appellant obtaining the Occupation/Completion

Certificate.

(iii) Under clause _____, it was agreed that under no

circumstances the Appellant was to hand over possession

of the flats to the flat purchasers until all amounts due

and payable are paid by the flat purchasers to the

Appellant.

The aforesaid clauses clearly show and demonstrate that (i) the

Respondents were agreeable to the delay in completion of

construction inter alia in the circumstances set out above, and

(ii) the Respondents were fully aware that a society already

existed and the Respondents agreed that they were to be

inducted as members in the existing society.

5.4 The agreements for sale were entered into between the Appellant

and the Respondents in or around ________ wherein the date of

completion of the project was mentioned as being ___________.

6
REAL ESTATE

5.5 The Appellant applied for and obtained the work

Commencement/permission (Note: - Specify permissions) on

_________________ and commenced construction. The Appellant

completed construction up to plinth level within the agreed

period of three months which was approved by the Officer of the

Sanctioning Authority pursuant to his visit on ______________.

5.6 Thereafter, while the Appellant was awaiting further approvals,

the Society insisted that the Appellant continue and complete

the redevelopment without waiting for the requisite and

necessary permissions/approvals. It was in these circumstances

that the Appellant continued with the redevelopment and

constructed up to ground plus _____upper floors. However, the

Sanctioning Authority issued a notice under Section ___________

to stop the construction work. Thus, the construction came to

a standstill and no further construction could be undertaken by

the Appellant.

5.7 In the meanwhile, on ________________, the Sanctioning

Authority issued a circular in respect of the procedure to be

followed for implementation of the modified provisions for

certain Development Regulations. In view thereof, the Appellant

had to make changes to and reframe the building plans and

obtain approval from the concerned authorities. However, due

to the said stop work notice issued by the Sanctioning

7
REAL ESTATE

Authority, despite having obtained approval of the modified

plans, the Appellant could not proceed with the construction in

accordance thereof.

5.8 In the aforesaid circumstances, the said society, through its

Chairman requested the Sanctioning Authority vide its letter

dated ____________ to regularize the unauthorized construction

and issue CC for the balance work as per approval. The said

society also undertook to make payment of the penalty for the

unauthorized construction. The Appellant also through its

Architect’s letter dated ______________ requested the Sanctioning

Authority to regularize the unauthorized construction and issue

Commencement Certificate for the balance work. Ultimately,

the Sanctioning Authority regularized the unauthorized

construction only on ______________.

5.9 It was in the aforesaid circumstances that while registering the

project under the provisions of the _________RERA, the

Appellant was compelled to revise the date of completion of the

project for reasons beyond the control of the Appellant and the

same was accordingly revised to ________________.

5.10 Further, the Respondents also committed defaults and/or

delayed in making payment of the consideration in terms of

their respective agreements to the Appellant. However, despite

the same, the Respondents shockingly filed the Complaint dated

8
REAL ESTATE

______________ before the Member/Adjudicating Officer,

________RERA inter alia complaining about delay in completion

of the project and claiming interest and compensation in terms

of the provisions of the RERA and for other reliefs.

5.11 In the meanwhile, due to the delay in payment committed by

Respondent No. _____, the Appellant terminated the agreement

entered into with Respondent No. ______ in accordance with the

terms of the said agreement. (NOTE: refer to relevant

correspondence including termination Notice)

5.12 Being aggrieved by the impugned Order dated _____________

passed by the Member/Adjudicating Officer (“the Learned

Member”), the Appellant has approached this Hon’ble Tribunal

on the following amongst other ground, each of which are taken

in the alternative and without prejudice to one another.

6. GROUNDS FOR APPEAL:

The Appellant respectfully submits as under: -

6.1 That the impugned order is bad in law, untenable, passed

without appreciating the documents and material on record and

is liable to be quashed and set aside.

6.2 The Learned Member failed to appreciate that under the

individual agreements entered into between the Appellant and

9
REAL ESTATE

the Respondents, the Appellant was not to be held accountable

for the delay and would be entitled to extension of time if the

delay was due inter alia to the following : (i) any notice, order,

rule, notification of the government and/or other public or

competent authority, (ii) changes in rules, regulation, bye-laws

of various statutory bodies and authorities affecting the

development and the project, and (iii) delay or default in

payment of dues by the purchaser without prejudice to the right

of the Appellant to terminate the said agreements and (iv) any

other reason beyond the control of the Appellant.

(i) Undisputedly, in view of the unauthorized construction

at the insistence of the said society stop work notice

was issued by the Sanctioning Authorities which

caused stoppage of balance construction.

Regularization of work was ultimately done by the

concerned authorities only in _____________. Thus, the

Appellant could not have commenced and/or

continued the construction for a period of above

________ years, which was due to the direction of the

sanctioning authority. The delay was clearly for the

reasons not attributable to the Appellant.

(ii) As set out hereinabove, the Appellant was required to

modify the building plans and have the same

10
REAL ESTATE

approved. There has been delay on this count also.

The delay on this count, clearly, is not attributable to

the Appellant. Thus, the delay in carrying out the

balance work was for reasons which cannot be

attributed to the Appellant. The Learned Member thus

erred in making the Appellant responsible for the delay

and directing payment of interest and other amounts.

(iii) In addition to the above, the Respondents have also

committed defaults and/or delayed in making payment

of the consideration to the Appellant in terms of their

respective agreements. It was specifically agreed by

the Respondents that till all the amounts due and

payable by them are not paid to the Appellant, the

Appellant was not liable to handover possession of the

flats.

The Learned Member erred in not appreciating the aforesaid

factors which are a matter of record. The delay in construction

is clearly for reasons not attributable to the Appellant. Despite

the same, the Learned Member, by the impugned order, held the

Appellant is responsible for the delay. The impugned order is

thus passed without appreciating the material on record and is

liable to be quashed and set aside.

11
REAL ESTATE

6.3 The Learned Member failed to appreciate that there is no delay

in handing over possession of the flats to the Complainants on

part of the Appellant. The Learned Member failed to appreciate

that the project has been registered under the _______RERA and

the revised date of completion is _______________. As such, the

Complaint of the Complainants is clearly pre-mature.

6.4 The Learned Member failed to appreciate that despite the

Complainants having agreed for condonation of delay in the

circumstances set out above, the filing of the Complaint by the

Complainants inter alia for payment of interest and other

monies clearly show that the Complaint was filed for extorting

monies from the Appellant.

6.5 The Learned Member erred in accepting without question the

averments made by the Respondents with regard to the

payments made by them. The Respondents have alleged that

they have made certain payments in cash. The Appellant has

categorically denied and disputed the payments allegedly made

in cash towards consideration. So also, the Appellant has

categorically denied the alleged cash receipts produced by the

Respondents. In the circumstances, the Learned Member ought

to have directed the parties to prove their respective case on this

issue by leading evidence. The Learned Member erred in not

12
REAL ESTATE

doing so and erred in simplicitor accepting the version of the

Respondents.

6.6 The Learned Member erred in not rendering reasons for

accepting the version of the Respondents with regard to the

alleged cash payments and rejecting the contentions of the

Appellant. To that extent, the impugned order is unreasonable

and a non-speaking order.

6.7 The Learned Member despite having held that the Appellant is

entitled to claim amounts after regularization has erred in not

directing the Respondents to make payment of the amounts in

terms of the said agreements and directing the Appellant to file

independent complaint for recovery of amounts.

6.8 The Learned Member erred in directing the Appellant to form an

association/society of the allottees within ___months despite the

fact that the society viz. __________________________________

already exists. The Learned Member failed to appreciate that

clause _____ of the agreement for sale inter alia provided that

the purchasers shall be admitted as members of the existing

society. The Learned Member failed to appreciate that the

redevelopment agreements clearly provide that the society would

admit third party purchasers as members upon sale of flats to

such third-party purchasers.

13
REAL ESTATE

6.9 The Learned Member erred in awarding interest and other

monies to the Respondents.

6.10 The Learned Member erred in granting compensation at Rs.

_________/- towards costs to the Respondents.

6.11 The Learned Member failed to appreciate that the balance

construction of the project is in progress. The Appellant is

ready and willing to complete the project by the revised

completion date. The imposing of interest and other amounts

would create a financial onus on the Appellant which may result

in further delay in completion of the project.

6.12 Even otherwise, the impugned order of the Learned Member is

erroneous, bad in law, untenable and passed without

appreciating the facts and material on record. The same is

therefore, liable to be quashed and set aside by this Hon’ble

Tribunal.

7. RELIEFS SOUGHT:

In view of the facts mentioned in paragraph ______ above, the

Appellant prays for the following reliefs:

(a) That this Hon’ble Tribunal be pleased to quash and set aside

the Order dated ______________ passed by the Learned Member/

Adjudicating Officer in Complaint No. _________________;

(b) For costs; and

14
REAL ESTATE

(c) For such further and other reliefs as this Hon’ble Tribunal may

deem fit and proper in the facts and circumstances of the case.

8. INTERIM ORDER:

Pending final decision on the appeal, the Appellant seeks issue of the

following interim order:

(a) That this Hon’ble Tribunal be pleased to stay the execution,

operation and effect of the impugned order dated ______________

(Exhibit “A” hereto) passed by the Learned Member/

Adjudicating Officer in Complaint No. ______________;

(b) For ad-interim reliefs in terms of prayer (a) above;

(c) For such further and other reliefs as this Hon’ble Tribunal may

deem fit and proper in the facts and circumstances of the case.

9. MATTER NOT PENDING WITH ANY OTHER COURT, ETC.:

The Appellant further declares that the matter regarding which this

appeal has been made, is not pending before any court of law or any

other Authority or any other Tribunal(s).

10. PARTICULARS OF THE FEE TERMS OF SUB-RULE A(1) OF RULE

(i) Amount :

(ii) Mode :

15
REAL ESTATE

11. LIST OF ENCLOSURES:

(i) An attested true copy of the order against which thee appeal is

filed;

(ii) Copies of the documents relied upon by the appellant and

referred to in the Appeal;

(iii) An index of the documents

VERIFICATION

I, ________________, son of ________________ the Appellant to hereby

verify that the contents of paragraphs ______ to _______ are true to my

personal knowledge and belief and that I have not suppressed any material

fats.

Place:

Date: Signature of the Appellant

16