Appeal No. 42 of 2020
The Tamil Nadu Real Estate Appellate Tribunal, in Appeal No. 42 of 2020 dated 12 March 2020, considered a promoter's appeal against the refusal of permission to cross-examine a homebuyer before the Adjudicating Officer. The Tribunal found that the dispute could be decided using the parties' agreement and payment records, and stated that oral evidence and cross-examination were unnecessary in the circumstances.
What the case concerns
Appeal No. 42 of 2020 was filed by M/s. Sathyam Homes Private Limited, the promoter and respondent in the original complaint, against homebuyer M. Gopalakrishnan. The promoter sought permission to cross-examine the homebuyer, alleging that the complaint and proof affidavit contained contradictions and suppressed material facts.
The Tamil Nadu Real Estate Appellate Tribunal heard the promoter at the admission stage to decide whether the appeal was maintainable. Notice was not served on the homebuyer because only admissibility was heard.
Tribunal's reasoning
The Tamil Nadu Real Estate Appellate Tribunal found the promoter's stated grounds unsustainable. Its main findings were:
- The promoter did not explain how the challenged decision was contrary to the facts or law.
- Establishing the conduct of the parties was not the Presiding Officer's role. The parties had entered into an agreement, and the relevant claims could be established through documentary evidence.
- Refusing cross-examination did not violate natural justice in the circumstances. The Real Estate (Regulation and Development) Act, 2016 gives the Authority powers to obtain written information and conduct an inquiry when necessary.
- The dispute concerned the alleged balance payable under a sale cum construction agreement, rather than a technical issue requiring oral evidence.
- Payment disputes would ordinarily be supported by written records, so the Tribunal found no need for cross-examination to prevent the forum from being misled.
The supplied text states that the agreement was dated 20 April 2018 and that a registered sale deed was executed on 4 June 2018. The promoter alleged that payment remained outstanding and therefore possession had not been handed over.
Procedure under the real estate law
The Tamil Nadu Real Estate Appellate Tribunal noted that the Authority may regulate its own procedure and is guided by natural justice. It also stated that the Appellate Tribunal is not bound by the Code of Civil Procedure, 1908 or the evidence rules contained in the Indian Evidence Act.
Rules 37 and 38 of the Real Estate (Regulation and Development) Rules, 2017 allow documents or other evidence to be ordered when further inquiry is needed. Section 71(3) also allows the Adjudicating Officer to summon a person or require documents considered useful or relevant.
Relevance for buyers and promoters
Appeal No. 42 of 2020 indicates that cross-examination is not automatically required in every real estate complaint. Buyers and promoters should retain agreements, registered deeds, cheque records, payment receipts and other documents, particularly where the dispute concerns amounts paid or outstanding. The supplied text does not include the final operative direction disposing of the appeal.
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Common questions
Can a promoter automatically cross-examine a homebuyer in a RERA complaint?
No automatic right is stated in Appeal No. 42 of 2020. The Tamil Nadu Real Estate Appellate Tribunal found cross-examination unnecessary because the dispute could be examined through contractual and payment documents.
What documents were important in this dispute?
The dispute involved a sale cum construction agreement, a registered sale deed, payments, additional work charges and two allegedly dishonoured cheques. The Tribunal treated written documentary evidence as the appropriate way to establish these matters.
Is the Tamil Nadu Real Estate Appellate Tribunal bound by normal civil court procedure and evidence rules?
The Tribunal stated that it is not bound by the Code of Civil Procedure, 1908 or the evidence rules contained in the Indian Evidence Act. It must be guided by the principles of natural justice and may regulate its own procedure.
Can the Adjudicating Officer call witnesses or ask for more documents?
Yes. The provisions quoted in Appeal No. 42 of 2020 allow the Adjudicating Officer to summon a person, require relevant documents and order further evidence when considered necessary.
