TaxTMI 
TaxTMI 
2024 (11) TMI 787
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....ay 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 implementation of Slum Rehabilitation Scheme, the same consist of rehab and sale component buildings. Respondent took two flats D-4904 and D-4905 in 'D' Wing of the project for total consideration of Rs. 3,91,04,400/- for each of the flats. Petitioner issued two letters of allotment both dated 11 September 2013 to Respondents, under which he agreed to handover possession of both the flats to Respondents by 1 June 2017 with grace period of six months. Respondents have paid part consideration of Rs. 3,29,20,062/- for each of the flats. Since the Appellant did not execute agreement with Respondents nor delivered possession of the flats to them, Respondents filed complaints before MahaRERA under the provisions of section 18 of the Real Estate (Regulation and Development) Act, 2016 (RERA)....
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....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 raised in the Appeal Memo about not having made a concession before the RERA Appellate Authority, whether the RERA Appellate Tribunal is justified in holding that the Respondents did not make such concession ? 8 Mr. Shakeel Shaikh, the learned counsel appearing for the Appellant would submit that Appellate Tribunal has erred in entertaining the Appeal filed by the Respondents by ignoring the fact that the order dated 25 November 2020 was obtained by Respondents by concession. That Respondents specifically agreed before the Regulatory Authority that interest can be paid only in respect of the amount collected after implementation of the RERA. That Appellant expressed the financial difficulties faced by it in execution of the project. The Regulatory Authority took into accoun....
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....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 sitting over huge amounts paid by Respondents. That the allotment letters were issued on 11 September 2013 in which the agreed period for handing over possession of flats was 1 June 2017, with grace period upto 1 January 2018. That by now period of about six long years has elapsed, but the Appellant is yet to handover possession of the flats to Respondents. To ameliorate sufferings of the Respondents, the Appellate Tribunal has rightly stepped in and directed Appellant to pay interest on the entire amount received from Respondents. He would submit that the interest is not directed to be paid from the date of receipt of amounts, but the same is directed to be paid only from 1 January 2018. 12 Mr. Naphade would further submit that the order of the Regulatory Authority is....
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.... 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 registering the agreements for sale. 10. During the course of the hearing, the learned counsel for the Respondent was not audible due to a technical difficulty at her end and therefore she has made submissions via email dated November 24, 2020 which was sent post hearing. She has submitted that the Complainants will have to make the full payment towards the consideration of the apartments without which the project lender will not grant NOC, without which neither the apartment will be released by the project lender nor will the project lender issue the release letter for the said apartments. Further, she has submitted that the said project is already facing liquidity crisis and a direction to pay interest to the Complainants will become a precedent inviti....
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....en' 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 his opposition is considered by the Authority in paragraph 10 of the order. The Regulatory Authority thereafter passed final order in paragraph 11 by directing the Appellant to pay interest on amounts collected after May 2017 on account of failure to execute and register agreement for sale in accordance with Section 13 of the Act. This would be the correct reading of the order passed by the Regulatory Authority. 17 I am therefore of the view that Respondents clearly made a concession before the Regulatory Authority that they were willing to accept interest only on amounts paid after implementation of the RERA. However, before the Appellate Authority, Respondents insisted that no such concession was applied by them before the Regulatory....
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.... 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 in their Appeal appears to be in consonance with what is recorded by the Regulatory Authority in paragraph 8 of the order. However, there is no statement pleaded in the Appeal Memo that the concession recorded in paragraph 9 of the order was not made by them. 20 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 Authorit....
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....ecessarily 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 learned judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity". 6. In King Emperor v. Barendra Kumar Ghost 28 C.W.N. 170 said, .....these proceedings emphasise the importance of rigidly maintaining the rule that a statement by a learned judge as to what took place during the course of a trial before him is final and decisive; it is not to be criticised or circumvented; much less is it to be exposed to animadversion. 7. In Sarat Chandra v. Bibhabati Debi 34 C.L.J. 302. Sir Asutosh Mookerjee explained what had to be done It is plain that in cases of this character where a litigant feels aggri....
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....rrect 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 Regulatory Authority was received by Respondents on 1 December 2020. If such an application was made before Regulatory Authority immediately after 1 December 2020, the Regulatory Authority would have considered the request and if indeed there was any error in recording the concession, it would have corrected the order. On the other hand, if the concession was found to be correctly recorded, it would have rejected such application. It is not open for the Respondents to directly file Appeal before Appellate Tribunal complaining that recording of concession as erroneous. To make their case worse, Respondents di not even plead in the Appeal Memo that recording of concession by the Regulatory Authority was wro....
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....-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 impugned order further records that the learned counsel for developer submitted that the subject project is already facing liquidity crisis. It means during the course of hearing it was not submitted by the learned counsel for developer that the project is already facing liquidity crisis. This fact was brought to the notice of the learned Authority by email dated 24.11.2020 which was sent post hearing. Under the circumstances, it is hard to digest that during the course of hearing the allottees had purportedly insisted that the developer be directed to pay interest on the amounts collected from them post implementation of RERA 2016. Therefore, we are of the view that the observations of learned A....