# M/S, Supertech Realtors Pvt. Ltd.,New Delhi v. Amber Hasan Opp. Party

- **Citation:** (2023) 8 ILRA 857
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-10
- **Case number:** Rera Appeal (D) No. 85 of 2023
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-supertech-realtors-pvt-ltd-new-delhi-v-amber-hasan-opp-party-50616
- **Pages:** 7

## Headnote

Real ESt. Law - Real ESt. (Regulation and
Development) Act, 2016- Sections 19(10),
44(1), 58 - Clean Hands Doctrine, Offer of
Possession,
Allotment
Cancellation,
Project
Delay, Promoter's Liability, Regulatory Authority,
Appeal Limitation, Third Party Rights - Real ESt.
(Regulation and Development) Act, 2016 -
FACTS
The appellant-promoter M/S Supertech Realtors
Pvt. Ltd. allotted Flat No. 3201 in "Super Nova"
project to respondent-allottee Amber Hasan vide
allotment letter dated 18.12.2015 for Rs.
1,84,83,403/- with completion deadline of June
2017 (with 6 months grace period). The allottee
paid Rs. 1,14,34,893/- leaving balance amount
payable at possession stage. Despite obtaining
completion certificate on 18.07.2018, promoter
failed to offer proper possession. When allottee
inspected the flat and found defects, promoter
demanded outstanding payment through letter
dated 25.09.2018. RERA directed allottee to pay
within
90
days,
but
promoter
cancelled
858 INDIAN LAW REPORTS ALLAHABAD SERIES
allotment on 31.05.2020 before period expiry
and allegedly sold unit to third party. Appellate
Tribunal allowed allottee's appeal directing
proper offer of possession.
HELD
Promoter who cancels allotment before expiry of
authority-granted payment period and sells unit
to
third
party
without
disclosure
during
proceedings does not come with clean hands
and is disentitled to equitable relief. Mere
demand for outstanding payment without
proper offer of possession does not constitute
valid offer under real eSt. agreement. Payment
becomes due only upon proper offer of
possession as per agreement terms. Promoter
cannot cancel allotment before expiry of period
granted by regulatory authority on promoter's
own application. Such cancellation amounts to
frustrating the authority's order.

Appeal dismissed with cost.

Case Law Cited:

Ramjas Foundation Vs U.O.I., (2010) 14 SCC

## Text

8 All. M/S, Supertech Realtors Pvt. Ltd., New Delhi Vs. Amber Hasan
857
could establish any violation of basic
human rights of the public at large.

17. Furthermore, from the perusal of
the averments made in the present petition,
the petitioner in paragraph No.4 of the
same has simply stated that "he is a
resident of village Nagla Ajeet Gram
Panchayat
Garhi
Madusua,
Pragna
Patiyali, Tehsil Aliganj, District Etah, and
as such he is member of Gaon Sabha".
Except the aforesaid declaration, the
petitioner has not made any other averment
towards
his
credentials.
The
said
description is undoubtedly vague and
indefinite and cannot be accepted as a
disclosure of his credentials.

18. In view of the above, this Court
has no hesitation to note that the petitioner
has not disclosed any credential, much less
in consonance with the words 'should
precisely
and
specifically
state'
as
mandated in the aforesaid Sub-Rule (3-A),
Rule 1 of Chapter XXII of the Allahabad
High Court Rules (Rules of Court, 1952) as
amended in the light of the judgment
passed by the Hon'ble Supreme Court in the
case of Balwant Singh Chaufal (Supra).

19. Furthermore, from the perusal of
the averments made in writ petition as well
as the arguments advanced by the learned
counsel for the petitioner, this Court could
not find any element of public interest
involved in the present petition.

20. In view of the foregoing reasons,
the instant petition is not entertainable as a
public interest litigation and is accordingly,
dismissed.

21. Needless to say that it is always
open for the residents of the concerned
village including the petitioner to raise their
grievances before the concerned authorities
in accordance with law and the authorities
are duty bound to thoroughly look into the
genuine grievances of the aggrieved people
and ensure redressal of the same within the
legal framework.
----------
(2023) 8 ILRA 857
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.08.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Rera Appeal (D) No. 85 of 2023

M/S, Supertech Realtors Pvt. Ltd.,New
Delhi ...Applicant
Versus
Amber Hasan ...Opp. Party

Counsel for the Applicant:
Abhishek Khare, Aahuti Agarwal

Counsel for the Opp. Parties:
Akshat Srivastava

Real ESt. Law - Real ESt. (Regulation and
Development) Act, 2016- Sections 19(10),
44(1), 58 - Clean Hands Doctrine, Offer of
Possession,
Allotment
Cancellation,
Project
Delay, Promoter's Liability, Regulatory Authority,
Appeal Limitation, Third Party Rights - Real ESt.
(Regulation and Development) Act, 2016 -
FACTS
The appellant-promoter M/S Supertech Realtors
Pvt. Ltd. allotted Flat No. 3201 in "Super Nova"
project to respondent-allottee Amber Hasan vide
allotment letter dated 18.12.2015 for Rs.
1,84,83,403/- with completion deadline of June
2017 (with 6 months grace period). The allottee
paid Rs. 1,14,34,893/- leaving balance amount
payable at possession stage. Despite obtaining
completion certificate on 18.07.2018, promoter
failed to offer proper possession. When allottee
inspected the flat and found defects, promoter
demanded outstanding payment through letter
dated 25.09.2018. RERA directed allottee to pay
within
90
days,
but
promoter
cancelled
858 INDIAN LAW REPORTS ALLAHABAD SERIES
allotment on 31.05.2020 before period expiry
and allegedly sold unit to third party. Appellate
Tribunal allowed allottee's appeal directing
proper offer of possession.
HELD
Promoter who cancels allotment before expiry of
authority-granted payment period and sells unit
to
third
party
without
disclosure
during
proceedings does not come with clean hands
and is disentitled to equitable relief. Mere
demand for outstanding payment without
proper offer of possession does not constitute
valid offer under real eSt. agreement. Payment
becomes due only upon proper offer of
possession as per agreement terms. Promoter
cannot cancel allotment before expiry of period
granted by regulatory authority on promoter's
own application. Such cancellation amounts to
frustrating the authority's order.

Appeal dismissed with cost.

Case Law Cited:

Ramjas Foundation Vs U.O.I., (2010) 14 SCC

(Delivered by Hon'ble Alok Mathur, J.)

1. Learned counsel for the appellant
has opposed the report of the Stamp
Reporter wherein it was reported that the
appeal was delayed by 2-days.

2. The said report of the Stamp
Reporter was taken into consideration that
limitation was to be computed from the
date of passing of the order, i.e. 31.05.2023.
This aspect of the matter was considered by
this Court on 09.08.2023 and the following
order was passed:

"1. Heard Sri Abhishek Khare, learned
counsel for petitioner as well as Sri Akshat
Srivastava,
learned
counsel
for
respondents.

2. From perusal of the record, it
reveals that the Stamp Reporter has
reported that the appeal has been filed
beyond time by two days.

3. Learned counsel for petitioner has
contested the above facts and stated that
the report of the Stamp Reporter is based
on the date of order passed by Real Estate
Appellate Tribunal on 31.05.2023. It is
stated that the said order was uploaded on
06.06.2023 as an endorsement to that effect
has been made in the impugned order itself
as well as the the status report of the said
case indicating that the said order was
uploaded on 06.06.2023.

4. With regard to the limitation, he has
submitted that according to Section 58 of
the
Real
Estate
(Regulation
and
Development) Act, 2016 the appeal can be
filed within 60 days from the date of
communication of the decision or the order
of the Appellate Tribunal.

5. It is in the aforesaid facts, it is
stated that the period of limitation was
started from the date of uploading of the
said order i.e. 06.06.2023.

6. In light of the above, let a fresh
report be sought from the Stamp Reporter
considering the fact that the order was
uploaded on 06.06.2023.

7. List this case tomorrow i.e.
10.08.2023 in top ten case."

3. Today, when the matter has been
taken up, it is noticed that the Stamp
Reporter has reported that ?although no
date of communication of the service of the
impugned order, affidavit of service has
been annexed in the instant R.E.R.A.
Appeal by the learned counsel, therefore,
limitation could not be calculated from the
date of service and the same has been
calculated from the impugned order dated
31.05.2023, providing limitation period of
60 days.?
8 All. M/S, Supertech Realtors Pvt. Ltd., New Delhi Vs. Amber Hasan
859

4. This order has been passed despite
a clear finding recorded by this court on the
previous
date
vide
its
order
dated
09.08.2023, i.e., in the present case the
period of limitation was started from the
date of uploading of the said order dated
06.06.2023.

5. It is surprising that despite clear
directions issued by this Court the Stamp
Reporter has ignored the direction issued by
this court and failed to comply with the same.
It is not expected of the Officers of the
Registry to act in such a callous manner.

6. Let a report be sought from the
official concerned by the Joint Registrar
(Listing) and placed before me on the
Administrative side on 12.09.2023.

7. Considering the fact that the
limitation
has
to
be
computed
from
06.06.2023 and there is no dispute in this
regard amongst the parties, this court is of the
considered view that there was no delay in
filing the said appeal.

8. Heard Sri Abhishek Khare, learned
counsel for the appellant, Sri Akshat
Srivastava,
Learned
counsel
for
the
respondent, and perused the record.

9. The present appeal under section 58
of
the
Real
Estate
(Regulation
and
Development) Act, 2016 (hereinafter referred
as 'Act of 2016'), has been preferred by the
appellant being aggrieved by the order dated
31.05.2023 passed by the Real Estate
Appellate
Tribunal,
Lucknow,
thereby
rejecting the appeal preferred by the appellant
(Promoter).

10. It has been submitted by the
learned counsel for the appellant that the
appellant is a Private Limited Company,
involved in construction of infrastructure
development related activities and was
involved in a Project known in the style of
"Super Nova" situated at Plot No. 3, Sector94, Noida. The respondent was interested in
purchase of a Flat and accordingly he
moved an application to the appellant and
on 18.12.2015 an allotment letter was
issued and the respondent was allotted Flat
No. 3201 (Unit No.R203NEAST, Tower
A/Nova-East on 32nd Floor, measuring
2040 Sq. Ft.) for a total consideration of
Rs. 1,84,83,403 (Rs. One Crore Eighty
Four Lacs Eighty Three Thousand Four
Hundred and Three only). According to the
allotment-letter, the Unit was to be given to
the respondent by June 2017, with a grace
period of 6 months, which comes to
December
2017.
Admittedly,
the
respondent has already paid an amount of
Rs. 1,14,34,893/- (Rs. One Crore Fourteen
Lacs Thirty Four Thousand Eight Hundred
and Ninety Three only) to the appellant and
only the amount to be paid at the stage of
possession
remained
outstanding,
according to the Agreement between the
parties.

11. It has been submitted by the
learned counsel for the appellant that the
completion-certificate of the said Project
was also obtained from the New Okhla
Industrial
Development
Authority
by
means of letter dated 18.07.2018 and,
accordingly, as per provisions of Section
19(10) it is their case that the respondent at
this stage should have paid the entire
amount prior to seeking possession of the
said Flat. It has been stated that by means
of letter dated 25.09.2018 the respondent,
were asked to deposit the outstanding
amount of Rs. 82,72,533.00 (Eighty Two
Lacs Seventy Two Thousand Five Hundred
and Thirty Three only). The appellant has
860 INDIAN LAW REPORTS ALLAHABAD SERIES
styled the said letter as "Offer of
Possession", but a perusal of the aforesaid
letter clearly indicates that it was only a
notice for payment of the outstanding
amount. The appellant had also written to
the respondent stating that the now the
Project
is
at
possession
stage
and
formalities have to be completed and
directed them to pay the said amount within
15 days, but still there was no mention
regarding the date of offer of possession by
the appellant.

12. The respondent, on receipt of the
aforesaid letter, had replied to the appellant
by mail on 14.11.2018, stating that the
respondent had visited and inspected the
said Flat and there were numerous defects
and it was not in a position, where
possession of the same could have been
obtained
and
had
annexed
various
photographs in support of the contentions.

13. It is in the aforesaid circumstances
that the appellant (Promoter) was of the
view that despite occupancy-certificate
having been received by the respondent, he
was not paying the balance-amount and
consequently he preferred a complaint to
the Real Estate Regulatory Authority,
where he had made a prayer to direct the
allottee to pay the outstanding dues of Rs.
90,59,687/- (Ninety Lacs Fifty Nine
Thousand Six Hundred and Eighty Seven
only) alongwith penalty and to take
possession of the booked unit.

14. The respondent-allottee was put
under notice and the said complaint was
decided by means of order dated 02.03.2020.
While deciding the said application, an
inspection was conducted on the direction of
the Authority on 27.12.2019. In the said
inspection, it was found that the Project was
90% complete and despite the same, the
Authority disposed of the complaint by
directing the respondent-allottee to pay the
balance amount within 90 days of the said
order and the complainant was directed to see
that all the facilities and guarantees made by
him, were complete and made available to the
allottee and in case the allottee fails to make
the payment within a period of 90 days, the
complainant was given liberty to proceed
according to the terms of the Agreement.

15. The appellant on 31.05.2020
cancelled the allotment of the respondent. In
the said order it was categorically held stated
as under:

"In view of the above, we hereby cancel
your booking against Unit No. Nova
East/3201 at Supernova as per booking
form/allotment letter signed by you and the
amount standing to your credit against the
said booking stands forfeited as per terms
and conditions of the booking/company's
policy."

16. Though the appellant has contested
the fact that the said letter is merely a notice
of cancellation, but the perusal of the same
clearly indicates that in an unequivocal terms
allotment of the respondent has been
cancelled.

17. At this stage, it would be relevant to
mention that the order of the Authority dated
02.03.2020, while disposing of the complaint
of the appellant, had given liberty to the
respondent to make the entire outstanding
payment within a period of 90 days and,
admittedly, before expiry of the said period,
the appellant has proceeded to cancel the
allotment.

18. Once the allotment has been
cancelled, the respondent would have no
reason to pay the outstanding amount or to
8 All. M/S, Supertech Realtors Pvt. Ltd., New Delhi Vs. Amber Hasan
861
comply with the order of the Real Estate
Regulatory Authority.

19. The respondent-allottee, being
aggrieved by the order of the Real Estate
Regulatory Authority, filed an appeal under
section 44(1) of the Act of 2016 before the
Appellate Tribunal at Lucknow. It was
vehemently submitted in the appeal that the
Authority
has
illegally
directed
the
respondent to pay the remaining amount
prior to even seeing that the Project is
complete and in this regard it has been
submitted that there are various infirmities
in the Flat, as inspected by the allottee and
all these defects and infirmities were duly
pointed out to the Promoter, but without
addressing at any of the said issue
defects/discrepancies neither the Promoter
addressed the said infirmities nor has been
the
Regulatory
Authority
taken
due
cognizance of the same and, therefore, the
said order was illegal and arbitrary. It was
further submitted that the Promoter himself
has violated the terms of the order in as
much as the said offer has been cancelled
even prior to the time provided to make the
payment and in fact he has frustrated the
efforts of the allottee to comply with the
order of the Authority. The Promoter
cannot be allowed to deliberately flour the
order of the Authority. It was further
submitted that as per the Agreement
between the parties, the Project ought to
have been completed by December, 2017
and it was the delay on the part of the
Promoter, which has led to the dispute and
consequently the Allottee was also entitled
to claim interest and penalty for the delay
in completion of the said Project.

20. The Tribunal, after issuing notice
to the Appellant, has duly considered all the
objections and decided in favour of the
respondent. The Tribunal had framed five
issues while deciding the said appeal and
they had examined the Agreement between
the parties and with regard to the question
as to whether the Project was delayed. It
concluded that undoubtedly the Project was
to be completed by December 2017 and
there was considerable delay in completion
of the said Project, accordingly the issue
was decided in favour of the Allottee.

21. The contentious issue, which has
been raised before this Court is that Issue
No. 6, whereby the Tribunal was required
to examine as to whether the Allottee was
required to make any payment before offer
of possession as per the payment-plan
indicated in the Allotment-letter in this
regard. After examining the Allotmentletter and the Agreement between the
parties, the Tribunal was of the considered
view that the remaining payment was to be
made at the stage of possession. It verified
the said Agreement and stated that the
payment had to be made on receipt of the
offer of possession and only then the
Allottee was required to make payment.
After examining the material placed, it
returned a finding that no offer of
possession was given by the Promoter and,
therefore, any demand made before the
offer of possession was neither proper nor
justified on their part, and it was further
stated that the Promoter was only interested
in demanding dues, which were to be paid
by the Allottee on offer of possession and
they had gone to the extent of filing a
complaint seeking a direction against the
Allottee for making payment and without
expiry of the period granted by the
Regulatory Authority to the Allottee for
clearing the dues, proceed to cancel the
Unit.

22. The issues were decided in favour
of the Allottee and the appeal was allowed,
862 INDIAN LAW REPORTS ALLAHABAD SERIES
directing the Promoter to offer possession
to the Allottee alongwith a copy of the
complaint and completion-certificate within
a period of 45 days and also directed the
Allottee to clear the dues within 15 days
and the Promoter would be entitled to pay
interest at the rate MCLR + 1% from the
date of offer of possession till the receipt of
OC/CC/Offer of Possession, whichever is
later. It is against the aforesaid direction
that the present appeal has been filed.

23. Learned counsel for the appellant
has submitted that the order passed by the
Tribunal is illegal, arbitrary and requires
interference of his Court. It has been
submitted that the Promoter had required
the
Allottee
to
pay
the
remaining
outstanding amount, but the Allottee having
paid the entire outstanding amount, delayed
in giving possession of the Unit to the
Allottee and the direction issued by the
Tribunal could not have been honoured in
the facts of the present case.

24. Learned counsel for the Allottee,
on the other hand has opposed the appeal.
He has vehemently submitted that apart
from other factual controversies, the
conduct of the Promoter needs to be
examined and looked into in the present case.
He has submitted that the Promoter was all
along interested in the outstanding amount,
without taking care of the formalities and
conditions which itself had to fulfill so as to
deliver the final product/Flat in completed
shape to the Allottee. He submitted that when
the Allottee had made inspection of the said
Flat and it had found several deficiencies and
infirmities
and
the
same
were
duly
communicated by means of email dated
14.11.2018. No cognizance of the said mail
was ever taken by the appellant/Promoter,
and repeatedly letters were written to the
respondent for payment of the outstanding
amount. It has been further submitted that till
date neither the completion-certificate is
available nor has been placed on record in
any of the proceedings below, and unless the
completion-certificate is there, there is no
question of entering into the said premises.

25. It has been further submitted that the
appellant has not come with clean hands,
considering the fact that prior the period of
expiry of 90 days they cancelled the allotment
of the Allottee/respondent and apart from the
same, they have also sold the said Unit to a third
party. He further submitted that their conduct is
manifest from the fact that all these
developments
have
taken
place
during
pendency of proceedings initiated by them,
wherein neither of any of the pleadings or
details of the said transactions been detailed and
have been deliberately concealed. Even in the
present appeal in para-51 only a cryptic
averment has been made that third party rights
have been created, without giving any details of
the transactions or the name of the person to
whom the said Flat has been sold. He also
submits that these facts are sufficient in itself to
show that the appellant has not come with clean
hands.

26.

Considering
the
aforesaid
submissions of the contesting parties, it is
noticed that the allottee had made an
application for allotment of a Flat in the
Scheme developed by the appellant. He had
paid all the amount, which was due, except the
amount which was to be paid at the stage of
possession. Dispute in the present case has
arisen at the final stages of the said Project.
Possession-certificate,
according
to
the
Promoter has been got obtained on 18.7.2018
and limited demand has been made to the
allottee to make his entire payment.

27. On the other hand, the Allottee has
been trying to enforce his rights requiring the
8 All. U.P. State Sugar Corp. & Anr. Vs. Dhirendra Kumar Singh
863
Promoter to complete the said Project and
remove all the infirmities and deficiencies as
noticed by him. The proceedings leading to the
present case have been initiated at the behest of
the Promoter seeking a direction from the RERA
to the Allottee to make the balance payment, so
that the booked Unit can be handed over to him.
The complaint was favourably considered and
the RERA has made certain directions to the
Allottee to make the payment within 90 days.
Even before expiry of the said period the
allotment has been cancelled. The Promoter did
not even wait for expiry of the period, which was
granted on their application itself and it seems
that in the meanwhile, without intimation or
permission of any of the Authority the said Unit
has been sold. They did not deem it appropriate
to disclose the said details either before any of
the Authorities below or even before this Court
in the present appeal. This court is of the
considered view that the conduct of the
Appellant does not entitle it for any relief in the
present matter, as he has not come to the Court
with clean hand. The Hon'ble Supreme Court has
laid down in catena of judgments that if appellant
has not come forward with clean hand, he would
not be entitled to any equitable relief. In the case
of Ramjas Fondation and anr. v. Union of
India & ors., (2010) 14 SCC 38, the following
has been observed:

"21. The principle that a person who does
not come to the court with clean hands is not
entitled to be heard on the merits of his grievance
and, in any case, such person is not entitled to
any relief is applicable not only to the petitions
filed under Articles 32, 226 and 136 of the
Constitution, but also to the cases instituted in
other courts and judicial forums. The object
underlying the principle is that every court is not
only entitled but is duty bound to protect itself
from unscrupulous litigants who do not have any
respect for truth and who try to pollute the
stream of justice by resorting to falsehood or by
making misstatement or by suppressing facts
which have a bearing on adjudication of the
issue(s) arising in the case."

28. Apart from the above, finding as
recorded by the Tribunal have been duly
considered and examined by this Court also. We
do not find any infirmity with the findings
recorded by the Tribunal that the said Project was
delayed and despite their statement that the
Project shall be completed in June 2017, the
same was not completed even when the
appellant had approached the R.E.R.A.

29. With regard to the Issue "As to whether
any possession-letter was issued by the Promoter
to the Allottee after receipt of the occupancycertificate", the issue was decided against the
promoter, as even according to the Allottee, no
offer of possession was given to him after
obtaining the occupancy-certificate and, lastly,
their conduct that they have cancelled the
allotment prior to the expiry of 90 days, has been
held by the Tribunal to be non-sustainable.

30. In the light of the aforesaid findings
, no interference is required by this Court in
the said matter. No question of law arises for
determination by this Court. The Appeal is
accordingly dismissed and considering the
conduct of the Appellant, it is dismissed with
costs of Rs. 10,000.00 (Ten thousand only).
----------
(2023) 8 ILRA 863
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.08.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 2221 of 2005

U.P. State Sugar Corp. & Anr. ...Petitioners
Versus
Dhirendra Kumar Singh ...Respondent