Sri Saurabh Tripathi, Advocate, holding brief of Sri Akshay Mohiley, learned counsel for the appellant, Sri Azhar Ikram and Sri Pratik Chandra, learned counsel for the respondent.
Present appeal has been filed under Section 58 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as the Act). The appeal has been filed to challenge the order dated 26.11.2018 passed by the Real Estate Appellate Tribunal, Lucknow (hereinafter referred to as the Tribunal), in Appeal No. 19 of 2018 and the order dated 3.4.2018 passed by the Real Estate Regulatory Authority (RERA).
By the order dated 3.4.2018 passed by the RERA on complaint made by Babul Avadh Kishore (hereinafter referred to as the respondent-claimant), it was directed that the refund of the entire amount deposited by the respondent-claimant being Rs. 34,73,868/- together with interest at MCLR rate prescribed for home loans by the State Bank of India. The said deposit was required to be made within 45 days. It is a fact that no appeal was filed by the appellant against that order. However, the claimant-respondent filed Appeal No. 19 of 2018 against the order dated 3.4.2018 passed by the RERA. That appeal has been allowed claiming further enhancement of compensation. By order dated 13.11.2018, the Tribunal has allowed that appeal filed by the claimant-respondent and awarded interest at the rate of 18 % per annum from the date of deposit to the date of actual payment along with compensation of Rs. 3 lacs. That direction was also required to be complied with within 45 days.
Being aggrieved, the appellant has preferred the appeal seeking to challenge both the orders dated 3.4.2018 passed by RERA and the order dated 26.11.2018 passed by the Tribunal.
In the memo of appeal, following questions of law have been raised.
"(1) Whether the date of completion or possession after registration in RERA, would be considered in accordance with the allotment letter or as per the date provided in RERA registration certificate application?
(2) Whether the date of completion and possession stood automatically extended on account of grant of registration in supersession of the allotment letter, on account of operation of law?
(3) Whether the RERA authority had power to direct payment of interest from the date of default or the date when the RERA act came into force?
(4) Whether the orders passed by the courts below are against the weight or evidence?
(5) Whether the orders passed by the courts below are in the teeth of the provisions of the RERA Act, 2016?"
In view of the fact that the appellant did not prefer any appeal against the order of RERA dated 3.4.2018 and keeping in mind the provisions of Section 58 of the Act read with Section 100 Code of Civil Procedure, 1908, no question of law may be pressed in the present appeal affecting the order passed by RERA. The appellant having not filed any appeal against the order dated 3.4.2018, the same attained finality insofar as RERA had held the claimant-respondent entitled to refund in terms of Section 18 of the Act. Similar issue had arisen in RERA Appeal No. 1 of 2020 M/s. Archana Real Tech Pvt. Ltd. Vs. Rajiv Angrish. In that case also, no appeal had been filed by the builder against the order of the RERA holding the claimant-allottee to be entitled to refund. On the other hand, the claimant-allottee preferred the appeal to the Tribunal seeking enhancement of compensation. That appeal was allowed by the Tribunal. In the appeal filed by the builder against the order of the Tribunal a following question of law was raised:-
"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%."
Thereupon, in the order dated 6.1.2021 it was observed as under:
"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."
For the same reason, the present appeal cannot be heard on question nos. 1, 2, 4 and 5 as plainly the said questions do not arise from the order of the Tribunal. The only issue that may give rise to a question of law is whether the interest awarded at the rate of 18% is very high considering the present circumstances and the proven facts of the case.
Thus, while submission sought to be advanced by learned counsel for the appellant on question nos. 1, 2, 4 and 5 as framed in the memo of appeal do not merit consideration for the reasons noted above, learned counsel for the parties were heard on question no. 3. After advancing submissions at some length, at the suggestion of the Court, both the parties consented that the interest amount may be reduced to 12% from the date of the deposit/s being made.
In view of the such consent clearly expressed by learned counsel for the parties, the appeal is disposed of with the only modification made to the order of the Tribunal dated 26.11.2018 that the claimant-respondent shall be entitled to simple interest at the rate of 12% per annum till the date of actual payment. Such payment be made within a period of three months from today i.e. not later than by 20th April, 2021. In case, the appellant fails to abide by the consent recorded hereinabove, this order shall stand automatically modified, without reference to the Court, such that the appellant shall remain obliged to pay simple interest at the rate of 18% per annum from the date of deposit/s to the date of actual payment. No other ground or challenge was raised by the appellant in this appeal.
The appeal is, accordingly, disposed of.
Order Date :- 21.1.2021 CS