HARI ENTERPRISE Vs. GARISHMA MANUBHAI PRAJAPATI
LAWS(GJH)-2020-2-69
HIGH COURT OF GUJARAT
Decided on February 26,2020

Hari Enterprise Appellant
VERSUS
Garishma Manubhai Prajapati Respondents

JUDGEMENT

- (1.) Appearance of learned counsel Mr.Dharmesh Devnani for the respondent No.6-Gujarat Real Estate Regulatory Authority shall be recorded. Appearance of learned counsel Mr.Jaimin R. Dave and Mr.Shivam Parikh for the respondent No.1 shall be recorded.
(2.) These appeals under Section 58 of the Real Estate (Regulation & Development) Act read with Section 100 of the Civil Procedure Code seek to raise following substantial questions of law : Substantial questions of law raised in Second Appeal No. 75 of 2020 : "A. Whether the respondent no.5 erred in law by imposing dual conditions over the appellants more particularly when the appellants have satisfied all the parameters required for grant of interim relief in their favour and as both the conditions runs contrary to each other in eye of law? B. Whether the respondent no.5 has erred in law in passing the impugned order by ignoring the fact that the complaint by respondent no.1 before respondent no.6 was not maintainable in light of the fact that civil suit being Special Civil Suit No.600 of 2016 based in same of cause of action is unconditionally withdrawn by respondent no.1 as the same is barred by principle of res- judicata? C. Whether the respondent no.5 has failed to consider that the complaint by the respondent no.1 is barred by principle of estopple as the same was filed before the respondent no.6 pending civil suit, which is being suppressed by the respondent no.1 in her complaint? D. Whether the impugned order passed by respondent no.5 imposing condition on the appellants to furnish bank guarantee to the tune of Rs.40,00,000/- against the alleged claim of respondent no.1 of Rs.17,87,500/- is fair, just and proper, when the appellants have satisfied all parameters for grant of interim relief? E. Whether the respondent no.5 has erred in law by not considering the fact that the respondent no.4 has decided serious disputed question of facts about alleged transaction without adopting the procedure as contemplated under section 35 of the Gujarat Real Estate Act? F. Whether the respondent no.5 erred in law by passing impugned order by imposing conditions on the appellants having failed to appreciate the fact that there is no privity of contract between the appellants and the respondent no.1 in addition to the fact that the appellants are bona-fide auction purchasers of the property in question from Debt Recovery Tribunal? G. Whether the respondent no.5 and 6 have seriously erred in not realizing that the alleged transaction by the complainant with respondent no.2 is a clear case of fraud as seen from the record of the case? H. Whether the respondent no.5 could have imposed conditions on the present appellant no.1 who is acting bonafidely and respondent no.5 ought to have appreciated that the appellant no.1 is an auction purchaser and therefore, cannot be considered as defaulter as per Gujarat Real Estate (Regulation and Development) Act ? I. Whether the respondent no.5 and 6 have erred by exercising powers beyond the scope of Gujarat Real Estate (Regulation and Development) Act by going beyond the scope of the scheme 'Shayona Aagman' of appellant no.1? J. Whether the respondent no.5 and 6 have erred in interpreting the term 'as is what is and where is' as the same term refers with the title of the property of appellant no.1 and not with the scheme 'Shayona Aagman' of appellant no.1?" Substantial questions of law raised in Second Appeal No. 77 of 2020 : "A. Whether the respondent no.5 erred in law by imposing dual conditions over the appellants more particularly when the appellants have satisfied all the parameters required for grant of interim relief in their favour and as both the conditions runs contrary to each other in eye of law? B. Whether the respondent no.5 has erred in law in passing the impugned order by ignoring the fact that the complaint by respondent no.1 before respondent no.6 was not maintainable in light of the fact that civil suit being Special Civil Suit No.598 of 2016 based in same of cause of action is unconditionally withdrawn by respondent no.1 as the same is barred by principle of res- judicata? C. Whether the respondent no.5 has failed to consider that the complaint by the respondent no.1 is barred by principle of estopple as the same was filed before the respondent no.6 pending civil suit, which is being suppressed by the respondent no.1 in her complaint? D. Whether the impugned order passed by respondent no.5 imposing condition on the appellants to furnish bank guarantee to the tune of Rs.40,00,000/- against the alleged claim of respondent no.1 of Rs.17,87,500/- is fair, just and proper, when the appellants have satisfied all parameters for grant of interim relief? E. Whether the respondent no.5 has erred in law by not considering the fact that the respondent no.4 has decided serious disputed question of facts about alleged transaction without adopting the procedure as contemplated under section 35 of the Gujarat Real Estate Act? F. Whether the respondent no.5 erred in law by passing impugned order by imposing conditions on the appellants having failed to appreciate the fact that there is no privity of contract between the appellants and the respondent no.1 in addition to the fact that the appellants are bona-fide auction purchasers of the property in question from Debt Recovery Tribunal? G. Whether the respondent no.5 and 6 have seriously erred in not realizing that the alleged transaction by the complainant with respondent no.2 is a clear case of fraud as seen from the record of the case? H. Whether the respondent no.5 could have imposed conditions on the present appellant no.1 who is acting bonafidely and respondent no.5 ought to have appreciated that the appellant no.1 is an auction purchaser and therefore, cannot be considered as defaulter as per Gujarat Real Estate (Regulation and Development) Act ? I. Whether the respondent no.5 and 6 have erred by exercising powers beyond the scope of Gujarat Real Estate (Regulation and Development) Act by going beyond the scope of the scheme 'Shayona Aagman' of appellant no.1? J. Whether the respondent no.5 and 6 have erred in interpreting the term 'as is what is and where is' as the same term refers with the title of the property of appellant no.1 and not with the scheme 'Shayona Aagman' of appellant no.1?" Substantial questions of law raised in Second Appeal No. 55 of 2020 : "A. Whether the respondent no.5 erred in law by imposing dual conditions over the appellants more particularly when the appellants have satisfied all the parameters required for grant of interim relief in their favour and as both the conditions runs contrary to each other in eye of law? B. Whether the respondent no.5 has erred in law in passing the impugned order by ignoring the fact that the complaint by respondent no.1 before respondent no.6 was not maintainable in light of the fact that civil suit being Special Civil Suit No.599 of 2016 based in same of cause of action is unconditionally withdrawn by respondent no.1 as the same is barred by principle of res- judicata? C. Whether the respondent no.5 has failed to consider that the complaint by the respondent no.1 is barred by principle of estopple as the same was filed before the respondent no.6 pending civil suit, which is being suppressed by the respondent no.1 in her complaint? D. Whether the impugned order passed by respondent no.5 imposing condition on the appellants to furnish bank guarantee to the tune of Rs.40,00,000/- against the alleged claim of respondent no.1 of Rs.17,87,500/- is fair, just and proper, when the appellants have satisfied all parameters for grant of interim relief? E. Whether the respondent no.5 has erred in law by not considering the fact that the respondent no.4 has decided serious disputed question of facts about alleged transaction without adopting the procedure as contemplated under section 35 of the Gujarat Real Estate Act? F. Whether the respondent no.5 erred in law by passing impugned order by imposing conditions on the appellants having failed to appreciate the fact that there is no privity of contract between the appellants and the respondent no.1 in addition to the fact that the appellants are bona-fide auction purchasers of the property in question from Debt Recovery Tribunal? G. Whether the respondent no.5 and 6 have seriously erred in not realizing that the alleged transaction by the complainant with respondent no.2 is a clear case of fraud as seen from the record of the case? H. Whether the respondent no.5 could have imposed conditions on the present appellant no.1 who is acting bonafidely and respondent no.5 ought to have appreciated that the appellant no.1 is an auction purchaser and therefore, cannot be considered as defaulter as per Gujarat Real Estate (Regulation and Development) Act ? I. Whether the respondent no.5 and 6 have erred by exercising powers beyond the scope of Gujarat Real Estate (Regulation and Development) Act by going beyond the scope of the scheme 'Shayona Aagman' of appellant no.1? J. Whether the respondent no.5 and 6 have erred in interpreting the term 'as is what is and where is' as the same term refers with the title of the property of appellant no.1 and not with the scheme 'Shayona Aagman' of appellant no.1?"
(3.) It is unnecessary to address the merits of the appeals challenging the interim order as the ends of justice can be met by remanding the case to the appellate authority under RERA for expeditious hearing of the main matter in accordance with law as agreed by the parties during the course of hearing of this case. Accordingly directed.;


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