M/S Balaji Infracare Pvt. Ltd. Thru. Authorized Representative Omkar Nath Maheshwari vs Vikas Sharma

A.F.R.
RESERVED
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
RERA APPEAL No. - 160 of 2025
M/s Balaji Infracare Pvt. Ltd. Thru.
Authorized Representative Omkar
Nath Maheshwari
…..Appellant(s)
Versus
Vikas Sharma …..Respondent(s)
Counsel for Petitioners(s) : Romit Seth
Counsel for Respondent(s) : Abhishek Khare, Aahuti Agarwal
Court No. - 19
HON’BLE SYED QAMAR HASAN RIZVI, J.
1. Sri Romit Seth, learned counsel for the appellant, and Sri Abhishek
Khare, learned counsel for the respondent, are present.
2. By means of the instant appeal filed under Section 58 of the Real
Estate (Regulation and Development) Act of 2016, (hereinafter referred
to as ‘Act of 2016’), the appellant has assailed the judgment and order
dated 14.08.2025 read with the order dated 15.09.2025 passed on I.A.
No. 1176 of 2025, by the learned Uttar Pradesh Real Estate Appellate
Tribunal, Lucknow (hereinafter referred to as ‘Tribunal’) in Appeal No.
282 of 2021 (Vikas Sharma versus Balaji Infracare Pvt. Ltd.), whereby
the learned Tribunal allowed the appeal preferred by the respondent and
set-aside the judgment and order dated 26.11.2020 passed by the learned
Real Estate Regulatory Authority, U.P. at Lucknow (hereinafter referred
to as ‘Regulatory Authority’), in Complaint No. LKO187/12/0558/2019.

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3. The controversy, in its essential factual conspectus, emanates from the
dispute between the appellant’s Group Housing Project, ‘Lav Kush
Apartment’, duly registered with the U.P. Real Estate Regulatory
Authority under Registration No. UPRERAPRJ10155 and the
respondent/allotee. The respondent, having shown interest in Flat No.
602 ad-measuring 2055 sq. ft.; booked the said unit on 08.09.2014,
pursuant whereto an Allotment Letter dated 18.09.2014 was issued in his
favour.
4. It is the case of the appellant that despite completion of construction
up-to successive floors and issuance of repeated ‘demand letters’ and
reminders letters calling upon the respondent to clear the outstanding
dues and to furnish stamp papers for execution of the agreement as
mandated under Section 13 of the Act of 2016, the respondent remained
in default against the sale consideration of Rs. 1,15,97,000/-, and
between 08.11.2013 and 25.03.2019, deposited a total sum of Rs.
72,30,000/-. In view of the persistent default, the appellant was
constrained to cancel the respondent’s allotment vide letter dated
26.10.2019, pursuant thereby, the respondent, through his counsel,
issued legal notices dated 21.11.2019 and 29.11.2019, which were duly
replied by the appellant through its counsel on 05.12.2019.
5. Thereafter, the respondent filed a Complaint before the learned Real
Estate Regulatory Authority, U.P., which was registered as Complaint
No. LKO187/12/0558/2019. The learned Regulatory Authority, vide
order dated 26.11.2020, directed the appellant to refund the amount of
Rs. 72,30,000/- deposited by the respondent within 45 days through
RTGS. For ready reference, the relevant part of the order dated
26.11.2020, is reproduced as under:
"दोनों पक्षों के तक  को सुना तथा पत्रावली पर उपलब्ध अभिलेखों का अवलोकन
किकया।
पत्रावली के अवलोकन से स्पष्ट है किक भि$कायतकता% द्वारा रु०
72,30,000.00 (बहत्तर लाख तीस हजार रूपये मात्र) जमा किकये गये है।
किवपक्षी द्वारा भि$कायतकता% के पक्ष में किदनांक 18.09.2014 को आवंटन पत्र जारी
किकया गया था। भि$कायतकता% द्वारा वर्ष% -2014 में सिसर्फ% बुकिंकग धनराभि$ का
ुगतान किकया गया था। किवपक्षी द्वारा भि$कायतकता% को किवभिन्न तितभिथयों पर $ेर्ष

3
RERA No. 160 of 2025
धनराभि$ जमा करने हेतु मांग जारी किकये गये थे, परन्तु भि$कायतकता% द्वारा किकसी
ी मांग पत्र का अनुपालन नहीं किकया गया। किवपक्षी द्वारा रेरा के पोट%ल पर
परिरयोजना की पूर्ण%ता तितभिथ 31.12.2019 अंकिकत की गयी है।
उक्त से स्पष्ट है किक भि$कायतकता% द्वारा न तो किनधा%रिरत समय अवतिध में
$ेर्ष धनराभि$ का ुगतान कर कब्जा प्राप्त किकया गया और न ही इकाई किनरस्त
करने हेतु कोई पत्र ेजा गया।
तद्नुसार भि$कायतकता% का प्राथ%ना-पत्र आंभि$क रूप से स्वीकार किकये
जाने योग्य है।
किवपक्षी को आदेभि$त किकया जाता है किक आदे$ की तितभिथ से 45 किदन में
भि$कायतकता% द्वारा जमा की गयी समस्त धनराभि$ को आर०टी०जी०एस० के
माध्यम से भि$कायतकता% द्वारा किदये गये बैंक खाते में वापस करना सुकिनतिXत करें ।
इस आदे$ का उल्लंघन ू -सम्पदा (किवकिनयमन तथा किवकास)
अतिधकिनयम, 2016 की धारा-63 तथा अन्य सुसंगत प्राकिवधानों के अन्तग%त
दण्डनीय होगा।
आदे$ पोट%ल पर अपलोड किकया जाये।"
6. In compliance of the aforesaid order dated 26.11.2020; the appellant
herein, remitted the amount of Rs. 72,30,000/- to the respondent on
08.01.2021.
7. Being aggrieved by the aforesaid order dated 26.11.2020, to the extent
that delay interest was not awarded, the respondent preferred an Appeal
before the learned Tribunal having Appeal No. 282 of 2021, praying,
inter alia , that the order dated 26.11.2020 be set-aside to the extent of
non-grant of delay interest, and that the appellant be directed to refund
the deposited amount along with delay interest in terms of Section 18
read with Section 2(za) of the Act of 2016 and Rule 16 of the U.P. Real
Estate (Regulation and Development) Rules, 2016.
8. To adjudicate the lis between the parties in appeal, the learned
Tribunal, vide order dated 22.05.2025, framed the following issue:
“Whether the appellant allottee is entitled to interest on deposit upon
cancellation of the unit by the respondent for default.”
9. After hearing the parties and on the basis of the material available
before it, the learned Tribunal, vide the impugned judgment and order
dated 14.08.2025, disposed of Appeal No. 282 of 2021 by setting aside
the order dated 26.11.2020 passed by the Regulatory Authority in
Complaint No. LKO187/12/0558/2019, restoring the said Complaint to
its original file and number, and directing the learned Regulatory

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RERA No. 160 of 2025
Authority to decide the legality and validity of the cancellation
letter/communication dated 26.10.2019 in terms of Section 11(5) of the
Act of 2016, within a period of twelve weeks. The operative part of the
order dated 14.08.2025 is extracted herein below for convenience .
“10. In view thereof, on consent of the parties the appeal is being
disposed by passing the following orders.
i. The impugned order dated 26.11.2020 passed in complaint No.
LKO187/12/0558/2019 by U.P. RERA at Lucknow, is set aside and
quashed.
ii. The complaint No. LKO187/12/0558/2019 is restored to its and
original file and number.
iii. Regulatory Authority shall decide the legality and validity of the
cancellation letter/communication dated 26.10.2019 in terms of
Section 11 (5) of the RERA Act of 2016.
11. It is expected that the learned Regulatory Authority shall decide
the complaint expeditiously, preferably within twelve weeks from
the first date fixed in the complaint, provided there is no
impediment.
12. No order as to costs.”
10. Subsequently, the appellant herein preferred a modification
application (I.A. No. 1176 of 2025) against the aforesaid order dated
14.08.2025, seeking modification/correction in the first sentence of
paragraph No. 10. The learned Tribunal, accordingly, passed an order
dated 15.09.2025 on I.A. No. 1176 of 2025, directing that the words “on
consent of the parties” to be deleted and substituted by the words “on the
request of appellant”.
11. Being aggrieved by the aforesaid orders dated 14.08.2025 read with
the order dated and 15.09.2025, the appellant has preferred the instant
Appeal under Section 58 of the Act of 2016.
12. The contention of the learned counsel appearing for the appellant, is
that by remanding the matter for decision on the legality and validity of
the ‘cancellation letter’, the learned Tribunal has travelled beyond the
pleadings and prayer made by the respondent herein, before it, thereby
granting a relief that was neither pleaded nor prayed for. In support of
his contention, learned counsel placed reliance upon the decision of the
Hon’ble Supreme Court rendered in the case of Akella Lalitha versus

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Konda Hanumantha Rao and Another, reported in 2022 SCC OnLine
SC 928 , wherein the Hon’ble Court observed as under:
“16. …..It is settled law that relief not found on pleadings should
not be granted. If a Court considers or grants a relief for which no
prayer or pleading was made depriving the respondent of an
opportunity to oppose or resist such relief, it would lead to
miscarriage of justice.”
13. It was further contended that although sub-section (1) and (3) of
Section 18 of the Act of 2016 do not by itself prescribe period of
limitation, but the provisions of the Limitation Act, 1963 stand attracted
by virtue of Section 29(2) thereof read with Section 88 of the Act of
2016. Therefore, the issue of cancellation of the Unit, having remained
unchallenged for nearly six years, could not be permitted to be reopened
at such a belated stage. It was further submitted that, any subsequent
attempt to reopen the validity of the said cancellation was legally
impermissible, as the Unit had since been transferred to another
purchaser, and that reopening the issue of validity of the cancellation at
this stage would cause prejudice to the appellant and affect the rights and
interests of the parties concerned.
14. Learned counsel for the appellant very emphatically argued that
once the learned Tribunal, vide its order dated 22.05.2025, had itself
confined the controversy by framing the issue regarding the allottee’s
entitlement to interest on the amount deposited upon cancellation of the
unit for default; it ought to have confined its adjudication to that issue,
instead of setting aside the entire order of the Regulatory Authority and
remanding the matter for determination of the legality and validity of the
cancellation.
15. It is asserted by the learned counsel appearing on behalf of the
appellant that the Appeal filed by the respondent before the Tribunal was
itself filed beyond limitation on a purportedly false plea of want of
knowledge of the order dated 26.11.2020, and deserved dismissal on this
ground alone.
16. Per contra , learned counsel for the respondent, at the very outset,
raised objection as to the scope of the instant appeal, asserting that the

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impugned order dated 14.08.2025, in substance, is simply an order
whereby the learned Tribunal remanded the matter to the Regulatory
Authority for a fresh decision on a specific issue pertaining to the
validity and legality of the cancellation letter/ communication dated
26.10.2019 in terms of Section 11(5) of the RERA Act of 2016, without
finally determining the rights of either party, whereas an appeal under
Section 58 of the Act of 2016 lies only on the grounds specified in
Section 100 of the Code of Civil Procedure, 1908, and its scope is
confined to consideration of ‘substantial question of law’; in the absence
of the same, no interference with the impugned order is warranted.
Learned counsel accordingly submitted that the instant appeal deserves
to be dismissed at the threshold for want of any ‘substantial question of
law’.
17. It was further contended by the learned counsel for the respondent
that no prejudice whatsoever is caused to the appellant, who remains at
full liberty to contest all issues before the learned Regulatory Authority.
18. Learned counsel appearing on behalf of the respondent has very
emphatically argued that the issue of legality and validity of the
cancellation of allotment dated 26.10.2019, being germane to the claim
of delay interest was required to be examined by the learned Regulatory
Authority in terms of Section 11(5) of the Act of 2016, and that the
learned Tribunal, having noticed that the said issue had remained
undecided, rightly remanded the matter to the learned Regulatory
Authority for decision thereon.
19. It was also further submitted by the learned counsel for the
respondent that the appellant had moved an application dated 08.09.2025
before the learned Tribunal, seeking deletion of the words “on consent of
the parties” occurring in paragraph 10 of the judgment dated 14.08.2025,
treated the same as typographical error. The said application came to be
disposed of by the order dated 15.09.2025. It is specifically pleaded by
the respondent in paragraph 21 of the counter affidavit, that the said
application was never served upon him and that the order dated

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15.09.2025 was passed without notice to him, or any opportunity of
hearing. It was further submitted that even the rejoinder affidavit filed by
the appellant brings no material on record to establish service of the said
application upon the respondent, and that the order dated 15.09.2025 was
thus passed without notice to the respondent, whereas the present appeal
came to be instituted only thereafter, on 10.10.2025.
20. It is urged by the learned counsel appearing for the respondent that
the appellant's own reply dated 05.12.2019 and the admitted absence of
any completion or occupancy certificate render the impugned remand
not merely permissible but necessary.
21. Heard learned counsel for the parties and perused the material
available on record. Having considered the rival submissions of the
learned counsels, this Court deems it appropriate to first advert to
Section 58 of the Act of 2016, which is reproduced below for ready
reference:
“58 . Appeal to High Court. (1) Any person aggrieved by any
decision or order of the Appellate Tribunal, may, file an appeal to
the High Court, within a period of sixty days from the date of
communication of the decision or order of the Appellate Tribunal,
to him, on any one or more of the grounds specified in section 100
of the Code of Civil Procedure, 1908:
Provided that the High Court may entertain the appeal after the
expiry of the said period of sixty days, if it is satisfied that the
appellant was prevented by sufficient cause from preferring the
appeal in time.
Explanation.—The expression “High Court” means the High Court
of a State or Union territory where the real estate project is situated.
(2) No appeal shall lie against any decision or order made by the
Appellate Tribunal with the consent of the parties.”
22. From a bare reading of the above provision it is evident that Section
58 of the Act of 2016 circumscribes the right of appeal under the Act by
confining it to the grounds specified under Section 100 of the Code of
Civil Procedure, 1908. Section 100 of the Code of Civil Procedure, 1908
reads as under:
“100. Second Appeal.- (1) Save as otherwise expressly provided in
the body of this Code or by any other law for the time being in force,
an appeal shall lie to the High Court from every decree passed in

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appeal by any Court subordinate to the High Court, if the High Court
is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this Section from an appellate decree
passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall
precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of
law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the
Respondent shall, at the hearing of the appeal, be allowed to argue
that the case does not involve such question:
Provided that nothing in this Sub-section shall be deemed to take
away or abridge the power of the Court to hear, for reasons to be
recorded, the appeal on any other substantial question of law, not
formulated by it, if it is satisfied that the case involves such
question. ”
23. It is thus manifest that, having regard to Section 100 of the Code of
Civil Procedure read with Section 58 of the Act of 2016, an appeal is
entertainable when it involves a ‘substantial question of law’. The
existence of a substantial question of law is, therefore, the sine qua non
for invoking and exercising the jurisdiction of this Court under Section
58 of the Act of 2016.
24. The Constitution Bench of the Hon’ble Supreme Court in the case of
Sir Chunilal versus Mehta & Sons Ltd. versus Century Spg. & Mfg.
Co. Ltd. , reported in 1962 SCC OnLine SC 57 laid down the
parameters for determining when a question of law assumes the
character of substantial question of law. The relevant extract of the said
judgment is reproduced herein below for ready reference:
“6. …….The proper test for determining whether a question of law
raised in the case is substantial would, in our opinion, be whether it
is of general public importance or whether it directly and
substantially affects the rights of the parties and if so whether it is
either an open question in the sense that it is not finally settled by
this Court or by the Privy Council or by the Federal Court or is not
free from difficulty or calls for discussion of alternative views. If the
question is settled by the highest court or the general principles to be
applied in determining the question are well settled and there is a
mere question of applying those principles or that the plea raised is
palpably absurd the question would not be a substantial question of
law.”
25. Subsequently, in the case of Hero Vinoth versus Seshammal ,
reported in (2006) 5 SCC 545 , the Hon’ble Supreme Court, dealing with

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the aforementioned question observed as under:-
“21. The phrase "substantial question of law", as occurring in the
amended Section 100 Code of Civil Procedure is not defined in the
Code. The word substantial, as qualifying "question of law", means of
having substance, essential, real, of sound worth, important or
considerable. It is to be understood as something in contradistinction
with-technical, of no substance or consequence, or academic merely.
However, it is clear that the legislature has chosen not to qualify the
scope of "substantial question of law" by suffixing the words "of
general importance" as has been done in many other provisions such
as Section 109 of the Code or Article 133(1)(a) of the Constitution.
The substantial question of law on which a second appeal shall be
heard need not necessarily be a substantial question of law of general
importance. In Guran Ditta v. Ram Ditta AIR 1928 PC 172 the phrase
substantial question of law as it was employed in the last Clause of
the then existing Section 100 Code of Civil Procedure (since omitted
by the Amendment Act, 1973) came up for consideration and their
Lordships held that it did not mean a substantial question of general
importance but a substantial question of law which was involved in
the case. In Sir Chunilal case AIR 1962 SC 1314 the Constitution
Bench expressed agreement with the following view taken by a Full
Bench of the Madras High Court in Rimmalapudi Subba Rao v.
Noony Veeraju AIR 1951 Mad 969 (Sir Chunilal case AIR 1962 SC
1314).
When a question of law is fairly arguable, where
there is room for difference of opinion on it or
where the Court thought it necessary to deal with
that question at some length and discuss alternative
views, then the question would be a substantial
question of law. On the other hand if the question
was practically covered by the decision of the
highest court or if the general principles to be
applied in determining the question are well settled
and the only question was of applying those
principles to the particular fact of the case it would
not be a substantial question of law.”
26. In the light of the authoritative pronouncement of the Hon’ble Apex
Court, it can safely be observed that, to qualify as a ‘substantial’
question of law, the question must be debatable, must not already stand
settled by the law of the land or by any binding precedent, and must have
a material bearing upon the decision of the case and/or the rights of the
parties. Further, for a question of law to be one “involved in the case”, it
must first find foundation in the pleadings; it must emerge from the
sustainable findings of fact recorded by the Courts of fact; and it must be
necessary to decide such question for arriving at a just and proper
decision of the case. The contours and ambit of the aforesaid principle
was expounded by the Hon’ble Supreme Court in Santosh Hazari

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versus Purushottam Tiwari, reported in (2001) 3 SCC 179. The
Hon’ble Apex Court has been pleased to hold that an entirely new point
raised for the first time before the High Court is not a question involved
in the case unless it goes to the root of the matter. It will, therefore,
depend on the facts and circumstance of each case whether a question of
law is a substantial and involved in the case, or not; the paramount
overall consideration being the need for striking a judicious balance
between the indispensable obligation to do justice at all stages and
impelling necessity of avoiding prolongation in the life of any lis .
27. In light of the aforesaid principles as laid down by the Hon’ble
Supreme Court, this Court is now required to examine whether, on the
facts and circumstances of the present case, the questions sought to be
raised by the appellant give rise to any substantial question of law
warranting indulgence by this Court under Section 58 of the Act of 2016.
28. A perusal of the impugned order dated 14.08.2025, shows that the
learned Tribunal has set aside the order passed by the learned Regulatory
Authority and directed to decide the legality and validity of the
cancellation letter/communication dated 26.10.2019.
29. Now, before adverting on the question of remand it would be apt to
go through the provision dealing with the same under the provisions of
Civil Procedure Code. For convenience, Rule-23 of Order XLI of the
Code of Civil Procedure, dealing with remand, is quoted here-in-below:-
" Rule 23. Remand of case by Appellate Court .- Where the court
from whose decree an appeal is preferred has disposed of the suit
upon a preliminary point and the decree is reversed in appeal, the
Appellate Court may, if it thinks fit, by order remand the case, and
may further direct what issue or issues shall be tried in the case so
remanded, and shall send a copy of its judgment and order to the court
from whose decree the appeal is preferred, with directions to re-admit
the suit under its original number in the register of civil suits, and
proceed to determine the suit; and the evidence (if any) recorded
during the original trial shall, subject to all just exceptions, be
evidence during the trial after remand.

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The Following amendments concerning the Allahabad High
Court were made by Uttar Pradesh Gazette, dated 1-6-1957. In
Rule 23 -
a. (i) Insert he following after the words ‘and the decree is reversed in
appeal”, namely:
“or where the Appellate Court while reversing or setting aside the
decree under appeal considers it necessary in the interest of justice to
remand the case, it”; and
(ii) delete the words “the Appellate Court” occurring thereafter and
delete also the words
“if it thinks fit”, occurring after the words “may”.
30. A perusal of the aforesaid provision shows that Order XLI Rule 23
C.P.C., in its original form, confers upon the Appellate Court a
discretionary power to remand a case only in a limited contingency,
namely, where the court of first instance has disposed of the suit upon a
preliminary point without recording findings on the other issues, and the
decree founded thereon is reversed in appeal. In such an eventuality, the
Appellate Court, if it considers it fit, may remand the case to the trial
court with a direction to re-admit the suit under its original number and
proceed to determine it on merits, and the evidence already recorded
during the original trial is, subject to just exceptions, treated as evidence
in the proceedings after remand. However, by virtue of the amendment
introduced vide Uttar Pradesh Gazette dated 1.6.1957, the scope of Rule
23 stands considerably widened. The amendment engrafts an additional
and independent ground for remand, namely, where the Appellate Court,
while reversing or setting aside the decree under appeal, considers it
necessary in the interest of justice to remand the case, even though the
suit below may not have been disposed of merely on a preliminary point.
Significantly, the words "if it thinks fit" and the requirement of
attribution to "the Appellate Court" occurring after "may" were omitted
qua this subsequently added limb, thereby indicating that once the
Appellate Court forms the opinion that remand is necessary in the
interest of justice, the exercise of that power is not left to a further

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RERA No. 160 of 2025
discretionary threshold of the kind retained for the original ground of
remand under the unamended part of the Rule. In other words, the U.P.
Amendment carves out two distinct situations warranting remand under
Rule 23; first, the traditional ground of reversal of a decree passed on a
preliminary point; and second, the independent ground of interest of
justice, which the Appellate Court may invoke even where the suit has
been disposed of on merits, provided it is satisfied that a remand is
necessary for a just and complete adjudication of the controversy
between the parties.
31. The Hon'ble Supreme Court in the case of Shivkumar and others
versus Sharanabasappa and others reported in (2021) 11 SCC 277 ,
categorically held that the appellate court has the inherent power to
remand a case where it considers it necessary to do so in the interest of
justice.
32. The Hon'ble Supreme Court, in the case of J. Balaji Singh versus
Diwakar Cole and Others reported in (2017) 14 SCC 207, considered
the provisions of Ruled 23-A of Order XLIII of CPC; and the
circumstances in which remand could be made, along with the scope of
this Court’s power when an order of remand is challenged. The relevant
paragraph is extracted here-in-below, for convenience:-
15) Now coming to the facts of the case, we are of the considered
opinion that once the first Appellate Court allowed the application
under Order 41 Rule 27 of Code and took on record the additional
evidence, it rightly set aside the judgment/decree of the Trial Court
giving liberty to the parties to lead additional evidence in support of
their case which, in turn, enabled the Trial Court to decide the civil
suit afresh on merits in the light of entire evidence. The first Appellate
Court was, therefore, justified in taking recourse to powers conferred
on the Appellate Court under Order 41 Rule 23-A for remanding the
case to the Trial Court. We find no fault in exercise of such power by
the first Appellate Court.
33. It is thus, evident that the scrutiny by this Court is necessarily
confined to those facts, findings and conclusions that bear upon the order
of remand. The jurisdiction in such a matter is limited to examining the
legality and correctness of the order of remand passed by the first
appellate court, and does not extend to matters beyond the remand itself.
It is, therefore, the conclusions and findings of the first appellate court

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culminating in the order of remand that now fall for consideration.
34. This Court finds that the learned Regulatory Authority, while passing
the order dated 26.11.2020, failed to determine whether the letter/
communication dated 26.10.2019, cancelling the Unit, followed by the
subsequent invitation to the allottee, vide letter dated 15.12.2019, to pay
the balance consideration and have the sale deed executed in his favour,
attained finality, or the allotment remained alive and what consequences
flow therefrom in the light of Section 11(5) read with Section 18 of the
Act of 2016. This determination carries significance and is directed at a
genuine, unresolved controversy which neither of the forums below have
addressed. It would not be out of place to observe that a question of fact,
however strenuously contested, does not metamorphose into a
substantial question of law. It is sufficient to observe that the question
arises from the facts and material on record, does not become a
substantial question of law merely because it is disputed by the
appellant.
35. Taking into consideration a holistic view of the matter, this Court is
of considered opinion that the remand made by the learned Tribunal does
not travel beyond the pleadings or the statutory scheme of the Act of
2016 for the obvious reason that the complaint itself raised the issue
concerning the cancellation of the unit, while the respondent, in his
rejoinder affidavit before the learned Regulatory Authority, specifically
questioned the cancellation as unilateral and without sufficient cause,
with reference to Section 11(5) of the Act of 2016. The proviso to
Section 11(5) itself confers upon an aggrieved allottee the right to
approach the Authority against cancellation if not in accordance with the
terms of the agreement for sale, is unilateral, or is without sufficient
cause. The determination of the legality and validity of the said
cancellation was, therefore, necessary for deciding the claim for interest
under Section 18 of the Act of 2016, for which the respondent herein had
approached the learned Regulatory Authority. This issue was, therefore,
not merely incidental, but germane to and goes to the root of the

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appellants’ claim for interest. The learned Tribunal, having noticed the
said lacuna, has rightly remanded the matter to the learned Regulatory
Authority for determination of the said issue.
36. As is evident from the pleadings, that the appellant, by its reply dated
05.12.2019, issued after the cancellation letter dated 26.10.2019, called
upon the respondent to deposit the balance sale consideration of
Rs.43,67,000/- along with the specified charges, within thirty days and
to have the sale deed executed in his favor, stating that only upon failure
to make such payment would it be presumed that the respondent was not
interested in execution of the sale deed. Thus, the appellant's own
contemporaneous conduct gives rise to a live question regarding the
effect and legal consequences of the letter/communication dated
26.10.2019. As such the learned Tribunal has neither adjudicated upon
the rights of the parties nor conclusively determined the dispute between
them and has rightly remanded the matter to the learned Regulatory
Authority for deciding the legality and validity of the cancellation letter/
communication dated 26.10.2019 in terms of Section 11(5) of the Act of
2016. Therefore, this Court at this stage is not required, to express any
final opinion as to whether such conduct amounted to waiver or
revocation of the cancellation; the said question remains to be
considered by the learned Regulatory Authority upon remand.
37. It is trite in law that an Appellate Court do not ordinarily interfere
with an order of remand, particularly where such order does not finally
determine the rights of the parties or cause any grave injustice or
prejudice to either of them.
38. In view of the discussion made herein above, this Court finds that the
impugned order do not suffer from any infirmity, perversity or
jurisdictional error so as to warranting interference by this Court. The
learned Tribunal must, therefore, be held to have rightly exercised its
appellate jurisdiction in remanding the matter to the learned Regulatory
Authority for determination of the issue which had remained undecided.

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39. Once a matter is remanded, the learned Regulatory Authority to
whom the matter is remitted is required to decide the issue on merits, in
the light of the directions contained in the remand order, after affording
due opportunity of hearing to the parties concerned. The parties are,
therefore, at liberty to place their respective cases before the learned
Regulatory Authority and to establish their claims by raising all such
pleas and grounds as may be available to them in law. As such, this
Court does not consider it necessary to separately adjudicate upon the
merits of the rival contentions raised by the parties on various other
grounds taken in the appeal.
40. Suffice it to observe that none of the grounds urged by the appellant
qualifies as a substantial question of law, within the meaning of Section
100 of the Code of Civil Procedure, 1908 as engrafted into Section 58 of
the Act of 2016, so as to warrant entertaining the instant Appeal or
interfering with the order of remand, in the appellate jurisdiction
conferred upon this Court under Section 58 of the Act of 2016.
41. Resultantly, the instant appeal fails and is consigned to records . No
order as to costs.
(Syed Qamar Hasan Rizvi,J.)
September 7, 2026
Manoj K.
Digitally signed by :-
MANOJ KUMAR
High Court of Judicature at Allahabad,
Lucknow Bench