RIGHTS OF ALLOTTEE AFTER THE DECREE BY RERA

 

For informative and educative purposes only

 

Order XXI Rule 30 of the CPC lays down the mode of execution of a money decree. According to this provision, a money decree may be executed by the detention of judgment-debtor in civil prison, or by the attachment or sale of his property, or by both.

 

Section 40 "Recovery of interest or penalty or compensation and enforcement of order, etc" - The Real Estate (Regulation and Development Act, 2016)

(1) If a promoter or an allottee or a real estate agent, as the case may be, fails to pay any interest or penalty or compensation imposed on him, by the adjudicating officer or the Regulatory Authority or the Appellate Authority, as the case may be, under this Act or the rules and regulations made thereunder, it shall be recoverable from such promoter or allottee or real estate agent, in such manner as may be prescribed as an arrears of land revenue.

(2) If any adjudicating officer or the Regulatory Authority or the Appellate Tribunal, as the case may be, issues any order or directs any person to do any act, or refrain from doing any act, which it is empowered to do under this Act or the rules or regulations made thereunder, then in case of failure by any person to comply with the same shall be enforced, in such manner as may be prescribed.

 

Section 40 of the ‘Real Estate (Regulation and Development) Act, 2016’ lays down the mode of execution by providing that the RERA may order to recover the amount due under the Recovery Certificate by the concerned Authority as an arrear of land revenue.  Hence the request to RERA has to be to kindly conduct the recovery proceedings against the Corporate Debtor which should then get culminated in issuance of Recovery Certificate and passing of order under Section 40 of the ‘Real Estate (Regulation and Development) Act, 2016’ directing the concerned Authority to recover decretal amount of from the Corporate Debtor as an arrear of land revenue.

 

Advocate Kuldeep Kumar Kohli

V 3/11 DLF PHASE III

GURUGRAM

0124 4014318

0124 4990107

08860332404

KULDEEPKOHLI@KOHLILEGAL.COM

WWW.KOHLILEGAL.COM

It is a condition precedent for entertainment of the appeal filed by the promoter to deposit the requisite amount.

 

 

For informative and educative purposes only

The Hon’ble H-REAT in the recent case of-

CHD DEVELOPERS LTD.

 VERSUS

RAJESH KUMAR KHATKAR

HELD

“It is a settled principle of law that the provisions of proviso to section 43(5) of the Act are mandatory i.e. the Appellant will have to deposit 100% of the decretal amount be with the Appellate Authority before the Appeal is heard against an order of Honourable HRERA.  It is a condition precedent for entertainment of the appeal filed by the promoter to deposit the requisite amount. In the instant case, the appellant/promoter has not complied with the mandatory provisions of proviso to section 43(5) of the Act in spite, of sufficient opportunity. Consequently, the present appeal cannot be entertained and the same is hereby dismissed

 

All the best,

 

God bless u all

 

 

ADVOCATE KULDEEP KUMAR KOHLI

KOHLI AND KOHLI LAW ASSOCIATES

V-3/11, DLF PHASE III,

GURUGRAM, HARYANA – 122002

Ph:0124 401 4318

0124 4990107

Mail ID: contact@kohlilegal.com

WWW.KOHLILEGAL.COM

04.09.2021

 

 

The answer to the question whether a decree-holder would fall within the definition of ‘Financial Creditor’ has to be an emphatic ‘No’ as the amount claimed under the decree is an adjudicated amount and not a debt disbursed

 

For informative and educative purposes only

 

 A ‘decree-holder’ is undoubtedly covered by the definition of

‘Creditor’ under Section 3(10) of the ‘I&B Code’ but would not fall within the class of creditors classified as ‘Financial Creditor’ unless the debt was disbursed against the consideration for time value of money or falls within any of the clauses thereof as the definition of ‘financial debt’ is inclusive in character. A ‘decree’ is defined under Section 2(2) of the Code of Civil Procedure, 1908 (“CPC” for short) as the formal expression of an adjudication which conclusively determines the rights of the parties with regard to the matters in controversy in a lis. A ‘decree-holder’, defined under Section 2(3) of the same Code means any person in whose favour a decree has been passed or an order capable of execution has been made. Order XXI Rule 30 of the CPC lays down the mode of execution of a money decree. According to this provision, a money decree may be executed by the detention of judgment-debtor in civil prison, or by the attachment or sale of his property, or by both.

 

Section 40 of the ‘Real Estate (Regulation and Development) Act, 2016’lays down the mode of execution by providing that the RERA may order to recover the amount due under the Recovery Certificate by the concerned Authority as an arrear of land revenue. In the instant case, RERA has conducted the recovery proceedings at the instance of Respondent Nos.1 & 2 against the Corporate Debtor which culminated in issuance of Recovery Certificate and passing of order under Section 40 of the ‘Real Estate (Regulation and Development) Act, 2016’ directing the concerned Authority to recover amount of Rs.73,35,686.43/- from the Corporate Debtor as an arrear of land revenue. As already stated elsewhere in this Judgment, Respondent Nos.1 & 2 instead of pursuing the matter before the Competent Authority sought triggering of Corporate Insolvency Resolution Process against the Corporate Debtor resulting in passing of the impugned order of admission which has been assailed in the instant appeal. The answer to the question whether a decree-holder would fall within the definition of ‘Financial Creditor’ has to be an emphatic ‘No’ as the amount claimed under the decree is an adjudicated amount and not a debt disbursed against the consideration for the time value of money and does not fall within the ambit of any of the clauses enumerated under Section 5(8) of the ‘I&B Code’.

 

ADVOCATE KULDEEP KUMAR KOHLI

KOHLI AND KOHLI LAW ASSOCIATES

V-3/11, DLF PHASE III,

GURUGRAM, HARYANA – 122002

Ph:0124-401 4318

0124 4990107

Mail ID: contact@kohlilegal.com 

 WWW.KOHLILEGAL.COM

HREAT JUDGEMENT

 

                        

                            

FEDERATION OF RESIDENTS’ WELFARE ASSOCIATION

V-3/11 DLF Phase- III Gurugram-122001| 0124-4014318; 0124-4990107

 

01.09.2021

Dear Members,

 

The Hon’ble H-REAT court in the recent case of-

Shakti Singh                                                ...Appellant

Versus

M/s Bestech India Ltd.                            …. Respondent

Held that consequently, the impugned order passed by the Ld. Authority is modified to the extent that the respondent-promoter shall be allowed to forfeit an amount of Rs.14,11,108/- i.e. 10% of the total sale consideration of Rs.1,41,11,108/- out of the total amount of Rs.39,51,638/- deposited by the appellant. The respondent has already sent a cheque dated 29.04.2019 amounting to Rs.1,39,382/- for refund to the appellant. The respondent shall return the balance amount of (Rs.39,51,638/- minus 10% of the total sale consideration i.e.Rs.14,11,108/- minus the amount of Rs.1,39,382/- already paid to the appellant) i.e. Rs.24,01,148/- to the appellant with interest as per Rule 15 of the Rules i.e. at SBI highest marginal cost lending rate plus two per cent i.e. 9.3% per annum from the date of this order till realization.

All the best,

God bless u all

President,

Federation of Residents Welfare Association

V 3/11 DLF PHASE III

GURUGRAM-122002

HARYANA,

0124 4-14318,0124 4990107,08860332404.

 

 

PRESIDENT

FEDERATION OF RESIDENTS WELFARE ASSOCIATION

 

 

Ansal Raisina, Ansal Retreat Illegal Demolition.

 Dear Residents, Allottess,

I am Delighted to Share my views on-going Ansal Raisina Issue.

Ansal Raisina Illegal demolition.

 Dear Residents,Allottess 

Delighted to Share my Views on what constitutes an valid offer of Possession.

Valid offer of Possession and Offer Of Possesion.

Hon'ble HREAT Judgement

FEDERATION OF RESIDENTS’ WELFARE ASSOCIATION

V-3/11 DLF Phase- III Gurugram-122001| Phone: 0124-4014318; 0124-4990107

 

30.08.2021

Dear Members,

 

The Hon’ble H-REAT court in the recent case of-

Godrej Premium Builders Pvt. Ltd. V/s Avtar Singh

Held that impugned orders are without jurisdiction, so the appellants have a strong prima facie case in their favour. This Tribunal is satisfied that the entire purpose of filing the present appeal shall be frustrated by ordering the appellants to first deposit the awarded amount as a pre-condition for the entertainment of the present appeal. The case in hand is a deserving case where the appellants are entitled for the complete waiver of the condition of pre deposit as the impugned order being prima facie without jurisdiction.

All the best,

God bless u all

President,

Federation of Residents Welfare Association

V 3/11 DLF PHASE III

GURUGRAM-122002

HARYANA,

0124 4-14318,0124 4990107,08860332404.

 

PRESIDENT

FEDERATION OF RESIDENTS WELFARE ASSOCIATION