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TMI Blog2024 (11) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... thority. If this was the position, proper course of action for the Respondents was to invite the attention of the Regulatory Authority by filing an application that their concession was erroneously recorded. However, admittedly no such application was filed by the Respondents. Instead, they were advised to challenge the order of the Regulatory Authority by filing the Appeal under section 44 of the Act before the Appellate Tribunal. The Appeal was apparently filed on 27 January 2021 before the Appellate Tribunal. During gap between 25 November 2020 and 27 January 2021, the Respondents did not complain before the Regulatory Authority that their concession was erroneously recorded in paragraph 9 of the order. Thus Respondents neither filed an application before the Regulatory Authority complaining about erroneous recording of the concession in paragraph 9 of the order nor they did raise any specific ground in the Appeal about erroneous recording of such concession. Thus, the Appellate Authority did not have before it any pleading to the effect that the order was not obtained by Respondents by consent. It therefore really became questionable as to how the Appellate Authority could have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajendra Mishra, Mr. Mukesh Gupta Ms. Asmita Yadav i/b. M/s. Solicis Lex, for Respondents JUDGMENT : 1 Appellant has filed this Appeal challenging the judgment and order dated 17 March 2023 passed by the Maharashtra Real Estate Appellant Tribunal, Mumbai (Appellate Tribunal), by which the Appellate Tribunal has partly allowed the Appeal filed by Respondents and has modified the order dated 25 November 2020 passed by Maharashtra Real Estate Regulatory Authority (Regulatory Authority). Appellant has been directed to pay interest to the allottees on the amount paid by them at the rate of SBI s Highest Marginal Costs of Lending Rate (MCLR) plus 2% with effect from 1 January 2018 till the date of handing over possession of subject apartments to the Respondents. Petitioner is also directed to pay costs of Rs. 10,000/- to the Respondents. 2 Briefly stated, facts of the case are that Appellant has undertaken the residential housing project consisting two buildings named Alta Monte and Signet under the Slum Rehabilitation Scheme on property bearing CTS Nos.812, 813, 821 (part), 811A/7 (P), 814 and 844 of village Malad, Taluka Borivali, Mumbai Suburban District. Since the Project is towards i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 44 of the Act. Respondents prayed for interest on the entire amount of Rs. 6,58,40,126/-. Respondents also prayed for direction for passing of GST credit. They also sought compensation of Rs.50,00,000/- towards mental harassment. 6 The Appellate Tribunal has partly allowed the Appeal filed by Respondents by judgment and order dated 17 March 2023 and has modified the Regulatory Authority s order dated 25 November 2020 by directing Appellants to pay interest to the Respondents on the entire amount paid by them from 1 January 2018 till the date of handing over possession of the flats to Respondents. Appellant is also directed to pay the costs of Rs.10,000/- to the Respondents. Aggrieved by the order passed by the Appellate Tribunal, the Appellant has filed the present Appeal. 7 When the Appeal came up before this Court, the same came to be admitted by order dated 10 January 2024 on following substantial questions of law: (i) Whether a litigant who obtains orders by making concession before the RERA Authority is permitted to seek relief over and above the concession so made in appeal filed before the RERA Appellate Authority ? (ii) In absence of a specific ground being raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly before the Appellate Authority during the course of hearing of the Appeal. Since such plea was not supported by the grounds raised in the Appeal, the Appellate Authority was clearly barred from considering such a plea directly sought to be raised during the course of the hearing of the Appeal. He would rely on the judgment of the Apex Court in State of Maharashtra vs. Ramdas Shrinivas Nayak and others AIR 1982 SC 1249. 10 Mr. Shaikh would submit that it is not open for a party to plead before Appellate Court that what is recorded by subordinate court was erroneous. That the correct way is to first draw the attention of the Court which recorded concession of the Appellant, for correction of the order by filing an application. Mr. Shaikh therefore would submit that the Appellate Tribunal has committed a patent error in entertaining the Appeal filed by the Respondents. He would pray for setting aside the order of the Appellate Tribunal. 11 Per contra Mr. Naphade, the learned Counsel appearing for the Respondents would oppose the Appeal and support the order passed by the Appellate Tribunal. He would submit that the Appellant has grossly delayed completion of the project and is sitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s before the Regulatory Authority. As observed above, the Regulatory Authority has recorded in its order that Respondents insisted for payment of interest on amounts collected from them after implementation of RERA. According to Respondents, no such concession was made and that they must be paid interest on entire amounts collected from them even prior to implementation of the RERA. 15 Perusal of the order passed by the Regulatory Authority on 25 November 2020 would indicate that following findings are recorded in the order in paragraphs 7, 8, 9, 10 and 11: 7. The Complainants prayed that the Respondent be penalised for collecting amounts beyond 10% from the Complainants post the implementation of the Real Estate (Regulation and Development) Act 2016, without executing and registering the agreements for sale. 8. It was explained to the Complainants that penalising a project that has been facing liquidity crisis, will further affect the project completion. 9. The Complainant then insisted that the Respondent be directed to pay them interest on the amounts collected from them post the implementation of the Real Estate (Regulation and Development) Act 2016, without executing and regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further affect the project completion. Whether the act on the part of the Regulatory Authority to give such explanation to the Respondents, who were appearing as parties-in-person, is altogether different matter. Since the Authority has recorded that such an explanation was given by it to Respondents, this Court will proceed on an assumption that such explanation was indeed given. After considering the explanation given by the Regulatory Authority, the order records in paragraph 9 that Respondents thereafter insisted that the Appellants be directed to pay interest on the amounts collected from them post the implementation of the RERA. Paragraph 9 uses the words then between the words the Complainant and insisted . That use of the word then by the Regulatory Authority in paragraph 9 would indicate that Respondents first insisted for payment of interest on the entire amount and after considering the explanation given to them by the Regulatory Authority, they, thereafter modified their demand and scaled it down for payment of interest on amounts collected by Appellant after implementation of the RERA. It appears that the Appellant was not ready to pay interest even on that amount and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Preamble of the MahaRERA Act, 2016, wherein the reason for MahaRERA coming into effect is clearly stated as An Act to establish the Real Estate Regulatory ...... to protect the interest of consumers in the real estate sector , his intention should have been to protect the interest of the Consumer who has been affected by the delay caused by the Developer rather than being worried about the Developer. It is the Respondent's responsibility to arrange the finances for the said project. The Respondent has already collected more than 80% payment from the Complainants more than 90% from most other flat buyers in the said project, yet the Respondent states that they have liquidity crisis as mentioned in the impugned order, which is difficult to believe. The Complainants should not be made to suffer due to the Respondent's inability to correctly allocate and utilize the funds for the said project. 19 Thus in ground clause 6(iii) it was pleaded that during the course of hearing, the Regulatory Authority pointed out to them that it cannot award interest on the entire amount as the same would financially affect the Appellant as well as the project. This statement made by Respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent, upon the party, while the matter is still fresh in the minds of the judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. Per Lord Buckmaster in Madhusudan v. Chanderwati A.I.R. 1917 P.C. 30. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment. 5. In Rev. Mellor 7 Cox. C.C. 454 Martin B was reported to have said we must consider the statement of the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duties because his Ministers had become involved personally. For the interest of democratic Government and its functioning, the Governor must act in such a case on his own. Otherwise, he will become an instrument for serving the personal and selfish interest of his Ministers. We wish to say no more. As we said, we cannot and we will not embark upon an enquiry. We will go by the judges' record. 21 Thus, the law is well settled that if a concession is recorded by a Judge, the Appellate Court has to believe that such concession was indeed made. This is because the Judge, in whose presence the concession is recorded, can alone vouch about the factum of making such concession. Therefore, the Court correct course of action for a party is to invite the contention of the Judge who recorded the concession, if he/she feels that recording of concession was erroneous. Therefore, it was incumbent upon Respondents to invite the attention of the Regulatory Authority immediately after receiving of the copy of the order dated 25 November 2020 by pleading that the concession recorded in paragraph 9 of the order was never made by them. It appears that the certified copy of the order of the Regul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sper in para-6 of the impugned order that the learned Advocate for the developer has submitted that the project is facing financial crisis. It is pertinent to note that at the time of hearing there was no material on record to show that the project was facing liquidity crisis. Despite this the learned Authority tried to apprise the allottees that penalising the developer will affect the subject project as the project has been facing liquidity crisis. Therefore, it is difficult to digest that allottees had made the purported statement. 22] It is significant to note that para-6 of impugned order records the submissions advanced by the learned counsel for developer. There is no reference in para-6 of the impugned order that the subject project has been facing liquidity crisis. Under the circumstances, the question of making such statement by allottees does not arise. A careful examination of impugned order would show that in para10 of impugned order the learned Authority has observed that during the course of hearing the learned counsel for developer was not audible to technical glitch therefore she has made submissions vide email dated 24.11.2020 which was sent post hearing. The impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my view, this finding recorded by the Appellate Tribunal are based on mere surmises and conjectures. In the first place, juridical propriety requires that the Appellate Court/Forum must believe that the event as recorded by the lower court/authority has actually taken place. Furthermore, the Appellate Tribunal did not have even a pleading in Appeal Memo presented to it that Respondents did not make concession as recorded in paragraph 9 of the order. In absence of any pleadings, there was no occasion for the Appellate Authority to disbelieve what is recorded by the Regulatory Authority. In my view therefore, even the second reason of the recording by the Appellate Authority for believing the plea of the Respondents about not making concession before the Regulatory Authority is totally perverse. 24 I am therefore of the view that the judgment and order passed by the Appellate Authority suffers from palpable error. It has committed a jurisdictional error in entertaining the Appeal filed by the Respondents without they first moving Regulatory Authority to seek a clarification in respect of the concession recorded in paragraph 9 of the order. The second error committed by the Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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