Case Note & Summary
The judgment pertains to two connected matters: an Interim Application filed by the developer, Marvel Sigma Homes Pvt. Ltd., challenging the maintainability of a writ petition filed by an allottee, Rustam Phiroze Mehta, and a separate writ petition by the developer challenging a Recovery Certificate issued by the Maharashtra Real Estate Regulatory Authority (RERA). The allottee had filed a complaint before RERA under Sections 12, 14, 18, and 19 of the Real Estate (Regulation and Development) Act, 2016, seeking refund of the entire consideration of Rs.10,61,18,790/- paid for a unit in the developer's project 'Marvel Ribera', due to gross delay in possession. RERA allowed the complaint on 1st March 2018, directing the developer to pay Rs.14,05,57,705.46 with interest at 10.05% p.a. Upon failure to pay, the allottee initiated execution proceedings, and RERA issued a Recovery Certificate on 12th March 2020. The developer filed Writ Petition No.2657 of 2020 challenging the Recovery Certificate, and also filed an Interim Application in the allottee's pending writ petition (Writ Petition (L) No.3221 of 2020) questioning its maintainability on the ground of alternative remedy under Section 44 of the RERA Act. The Court considered the objections and held that the writ petition is maintainable as it raises substantial questions of law regarding the interpretation of Section 40(1) and the validity of the recovery certificate. The Court further held that RERA has the power to issue a recovery certificate under Section 40(1) for the refund amount, as the term 'amount' includes the refund ordered under Sections 18 and 19. The Court also clarified that the bar of civil court jurisdiction under Section 79 does not apply to execution proceedings, which are within RERA's exclusive domain. Consequently, the Court dismissed the Interim Application and upheld the Recovery Certificate, directing the developer to pay the decretal amount with interest.
Headnote
A) Real Estate Law - Maintainability of Writ Petition - Alternative Remedy - Section 44 of Real Estate (Regulation and Development) Act, 2016 - The Court held that the writ petition challenging the RERA order is maintainable despite the availability of an alternative remedy under Section 44, as the petition raises substantial questions of law regarding the interpretation of Section 40(1) and the validity of the recovery certificate. (Paras 1-10) B) Real Estate Law - Recovery Certificate - Power of RERA - Section 40(1) of Real Estate (Regulation and Development) Act, 2016 - The Court held that RERA has the power to issue a recovery certificate under Section 40(1) for the amount directed to be refunded to the allottee, as the term 'amount' in Section 40(1) includes the refund amount ordered under Sections 18 and 19 of the Act. (Paras 11-20) C) Real Estate Law - Bar of Civil Court Jurisdiction - Section 79 of Real Estate (Regulation and Development) Act, 2016 - The Court held that the jurisdiction of the Civil Court is barred only in respect of matters which the Authority or the Appellate Tribunal is empowered to determine, and the recovery certificate is a step in execution which is within the exclusive domain of RERA. (Paras 21-25)
Issue of Consideration
Whether the Writ Petition (L) No.3221 of 2020 filed by the allottee is maintainable in view of the alternative remedy available under Section 44 of the RERA Act, 2016, and whether the Recovery Certificate issued by RERA under Section 40(1) of the RERA Act, 2016 is valid.
Final Decision
The Court dismissed the Interim Application (ST) No.2044 of 2021 and upheld the Recovery Certificate issued by RERA. The Court held that the writ petition is maintainable and that RERA has the power to issue a Recovery Certificate under Section 40(1) of the RERA Act, 2016 for the refund amount. The developer was directed to pay the decretal amount with interest.
Law Points
- Maintainability of writ petition against RERA order
- Power of RERA to issue recovery certificate
- Alternative remedy under Section 44 of RERA Act
- 2016
- Jurisdiction of Civil Court barred under Section 79 of RERA Act
- Scope of Section 40(1) of RERA Act
