Heard Sri Ankit Singh, Advocate holding brief of Sri Akshay Mohiley, learned counsel for the appellant and Sri Azhar Ikram and Sri Pratik Chandra, learned counsel for the respondent.
The present appeal has been filed under Section 58 of the Real Estate (Regulation & Development) Act, 2016 (hereinafter referred to as the "Act").
Briefly, the appeal has been filed by the appellant who is the builder against the order dated 19.04.2018 passed by the Uttar Pradesh Real Estate Regulatory Authority (RERA) and the order dated 04.07.2019 passed by the Uttar Pradesh Real Estate Appellate Tribunal (Tribunal).
By the order dated 19.04.2018, the RERA had directed to refund of Rs. 29,85,650/- within a period of forty five days. That direction came to be issued in view of a dispute arising between the parties wherein according to the respondent, a deviation more than 5% in the super area had been made entitling him to the refund. Relevant to that, it may also be noted that the appellant had demanded Rs. 1.76 lakhs over an above agreed amount for the additional constructions that were being made.
Vide order dated 19.04.2018, the application filed by the respondent was allowed and refund of Rs. 29,85,650/- directed. However, RERA did not award any amount towards compensation or interest.
The aforesaid order of RERA was appealable under Section 45(5) of the Act. While the respondent preferred an appeal against that order to the Tribunal being Appeal No. 40 of 2018, the appellant did not file any appeal. Thus, in the appeal filed by the respondent he claimed award of interest at the rate of 18%. Even upon such appeal being filed, no cross objection came to be filed by the appellant. It is also a fact that in the appeal, notices were issued to the appellant who also filed appearance therein. The matter was first directed to proceed ex-parte as the appellant failed to appear despite notices being served. Thereafter, the appellant applied to the Tribunal for recall of its order to proceed ex-parte. That application appears to have been rejected and the matter thus proceeded ex-parte against the appellant. The Tribunal vide its final order dated 04.07.2019 has awarded interest at the rate of 12% on the amount of Rs. 29,85,650/- deposited by the respondent. In awarding interest at the rate of 12%, the Tribunal has taken note of the fact that the respondent had taken a loan from ICICI Bank Limited at the rate of 10.15% from which loan amount of Rs. 29,85,650/- has been paid to the appellant.
Learned counsel for the appellant has relied upon the order dated 11.02.2020 whereby this appeal was entertained on the following question of law :
"whether the authority and tribunal below have erred in exceeding their jurisdiction in ordering refund despite recording a finding of fact that the increase in super area is less than 5%."
Then it has been submitted that the appellant is willing to comply with the order dated 11.02.2020, but owing to the circumstances arising from the spread of pandemic Covid-19, the possession could not be handed over to the respondent as contemplated in the order dated 11.02.2020. On a query made, learned counsel for the appellant further states that though the constructions are still not ready, however, if the court grants the appellant one opportunity, the order dated 11.02.2020 would be complied by 30.04.2021. It is also his contention that in any case the court has entertained this appeal on the question of law quoted above. Therefore, that question has to be addressed by the court, even if interim protection granted may be vacated. Then it has been submitted that the loan taken by the respondent from ICICI Bank Limited was only of Rs. 25 lakhs and therefore the award of interest @ 12% on the entire refundable amount is wholly excessive and exorbitant.
Last, it has been submitted that the appellant is willing to provide an alternate, ready-to-move apartment to the respondent at the same location, of equal value, without any extra charges.
On the other hand, learned counsel for the respondent would submit that the appeal that has been filed by the appellant is not maintainable to the extent the appellant seeks to challenge the order dated 19.04.2018 passed by RERA as that was never challenged by the appellant by filing any appeal before the Tribunal.
Then, it has been submitted that interest awarded is wholly just and proper keeping in mind the cost borne by the respondent/allottee to deposit the principal amount i.e. Rs. 29,85,650/- Unless that interest amount is awarded, the allottee would suffer erosion of his capital and a huge loss as he has already paid interest at the rate of 10.15% to ICICI Bank Limited. As to the offer of allotment of a ready-to-move apartment of comparable value and area, it has been submitted that the same is not acceptable.
Having heard the learned counsel for the parties and perused the record, it is seen that the allottee had claimed deviation of more than 5% in the construction raised by the appellant. That fact had given rise to the claim made by the respondent/allottee before RERA. The claim came to be adjudicated by order dated 19.04.2018 wherein according to RERA though deviation was not more than 5%, yet the allottee was entitled to refund of his deposit on account of delay. It is a fact that the appellant did not challenge the order dated 19.04.2018 by filing any appeal under Section 45(5) of the Act, before the Tribunal. The only appeal arising from the order dated 19.04.2018 was filed by the allottee. Thus the issue before the Tribunal was confined to enhancement of compensation awarded, in as much as the allottee claimed entitlement to payment of interest at the rate of 18%.
Section 58 of the Act reads as below :
"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 (5 of 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."
An appeal lies to this Court against an order of the Tribunal on a substantial question of law. In absence of any appeal filed by the appellant, before the Tribunal, against the order of the RERA directing refund of Rs. 29,85,650/-, no appeal lay to this Court to raise challenge to that direction of RERA. No substantial question of law arises on that count from the order of the Tribunal. The appellant failed to or did not challenge the order of RERA, before the Tribunal. Accordingly the Tribunal could not examine and it could not adjudicate the correctness of the order of the RERA on the issue of eligibility to the refund claimed by the respondent. Merely because the Tribunal has narrated those facts in its order passed on the appeal filed by the respondent/allottee, claiming interest on the refundable amount, it does not render such recital made by the Tribunal, the status or character of a 'decision' or 'order' of the Tribunal for the purpose of filing an appeal under Section 58 of the Act. In the adversarial system of which Section 58 of the Act is clearly a part for any such recital to qualify as a 'decision' or 'order', it must be shown to be an adjudication made by the Tribunal. For that adjudication to arise, the issue or point of dispute relevant to such recital must be shown to have existed or arisen before the Tribunal. Hence, in absence of any appeal filed by the appellant against the order of RERA, the issue of entitlement to refund (claimed by the respondent), never existed or arose in the appeal before the Tribunal for enhancement. Consequently, the observations contained in the order of the Tribunal are neither an 'order' nor a 'decision' made by the Tribunal, on that point. Also the necessary and the only consequence that arises owing to such conduct of the parties is that the order dated 19.04.2018 passed by the RERA, to the extent it found the allottee entitled to refund of the entire amount deposited by him being Rs. 29,85,650/-, attained finality. Therefore, the question of law as noted while entertaining the present appeal, plainly does not arise. The scope of the present appeal is thus confined to question of interest awarded by the Tribunal.
In so far as the ex-parte nature of the order of the Tribunal is concerned, it is clearly borne out from the record that notice of the appeal proceedings had been received by the appellant. The fact that the appellant did not appear in those proceedings despite such notice does not create any illegality as may warrant any interference in the present appeal.
Even though the order passed by the Tribunal is ex-parte, at the same time, it is wholly reasoned. Once the allottee had established payment of interest at the rate of 10.15% on the loan taken by him to make the deposit of Rs. 29,85,650/-, the interest awarded at the rate of 12% cannot be stated to be excessive or exorbitant as may warrant any interference in the present appeal. The view taken by the Tribunal is not only plausible but based on material and evidence existing on the record. For that reason, it is a finding of fact recorded on the basis of evidence on record. It does not merit any interference.
As to the submission advanced by the appellant that loan of only Rs. 25 lakhs had been taken by the respondent, again, considering the entirety of the facts and circumstances of the case, the allottee had been litigating for years and the appellant did not honor its undertaking given to this Court inasmuch as the apartment is yet not ready, there is no good ground made out to make such meticulous adjustment. In any case, the interest awarded at the rate of 12% on the entire amount of Rs. 29,85,650/- is in the nature of the compensation awarded for the loss suffered by the allottee of being deprived of dwelling house despite payment of heavy amount of Rs. 29,85,650/-. The allottee was deprived of the apartment and also his money for reasons attributable to the conduct of the appellant alone. Being a measure of compensation awarded, there is no merit found in the submission advanced by the learned counsel for the appellant, to tinker with the award made by the Tribunal.
The offer made by the appellant to provide an alternate accomodation is not based on any statutory right to resist the award of refund or interest. Since the same has been rejected by the allottee, it does not require any further consideration by the court.
Accordingly, the appeal lacks merit and is dismissed.
No order as to costs.
Order Date :- 6.1.2021 SA