AI Structured Summary
Not yet generated for this judgment
Judgment
The case was reserved for orders on 10.03.2022 and pronounced in open court on 13.12.2022.
The Applicant/Complainant, by way of an application dated 15.12.2023, has brought to the attention of this Hon'ble Authority an apparent mistake in the Final Order, inasmuch as it holds that the Respondent has refunded the entire principal amount due, whereas the Applicant’s/Complainant's claim in the impugned Complaint was that out of the total principal sum outstanding as on the date of refund, only a sum of Rs. 1,64,555/- was appropriated towards the principal amount. It is averred that while the Applicant/Complainant had received a total sum of Rs. 15,50,000/- from the Opposite Party, out of the said amount, a sum of Rs. 13,85,445/- was appropriated towards the interest/return due as on the date of refund, and the balance amount of Rs. 1,64,555/- (being Rs. 15,50,000/- minus Rs. 13,85,445/-) was appropriated towards the principal sum due.
In view of the above, the Applicant/Complainant, through the present application, has prayed for the following reliefs:
a)That the Opposite Party be directed to unconditionally pay the remaining principal amount of Rs. 13,85,445/- to the Complainant.
b)That the Opposite Party be further directed to pay to the Complainant a return of 25% per annum on the outstanding principal amount of Rs. 13,85,445/-, as promised under the Agreement dated 18.09.2015, from 16.04.2019 till the date of refund.
Regarding the Applicant's first prayer, wherein they sought a directive for the Respondent to unconditionally pay the remaining principal amount of Rs. 13,85,445/- to the Complainant, the Authority, in its final order dated 13.12.2022, has made the following observations:
“8.A perusal of the documents available on record shows that the Respondents issued receipts dated 28.07.2015, 05.08.2015 and 16.09.2015 acknowledging deposits of Rs. 3,00,000/- (Rupees Three lakhs only), Rs. 5,00,000/- (Rupees Five lakhs only), Rs. 5,40,000/-(Rupees Five lakhs forty thousand only) and Rs. 2,10,000/- (Rupees Two lakhs ten thousand only). Hence the payment of Rs. 15,50,000/- (Rupees Fifteen Lakh Fifty Thousand Only) by the Complainant to the Respondents is an admitted fact.
9.It is on record that the Respondents have refunded the principal amount of Rs. 15,50,000/- by way of two cheques of Rs. 8,000,00/- (Rs. Eight lakhs Only) dated 02-03-2019 and Rs.7,50,000/- (Rs. Seven lakh fifty thousand Only) dated 16.03.2019. Since, the Complainant received only principal amount from the Respondents, he is now seeking interest on the said principal amount.”
In light of the aforementioned observations, it is evident that the Respondents have already acknowledged and refunded the principal amount invested by the Complainant.
Further, regarding the applicant’s second prayer on seeking interest, the Authority, in its final order dated 13.12.2022, has already addressed the issues raised by the applicant and made the following observations:
“18.The Complainant has asked interest at the rate of 25% p.a. in view of the clause 2(b) of the MOU dated 18.09.2015. However, when the Authority passes direction for interest on principal amount, it has to follow the provisions of the RE(RD) Act, 2016 read with Rule 15 of NCT of Delhi Real Estate (Regulation and Development) (General) Rules, 2016. As per Rule 15 interest can be allowed at the rate of SBI Marginal Cost of Funds Based Landing Rate (MCLR) plus two percent. The Authority, therefore, cannot award more than what is prescribed under the Act and Rules framed thereunder.”
Consequently, the Authority cannot exceed this prescribed rate, even if the parties have agreed to a higher interest rate in their contractual arrangement.
It is pertinent to note that under Section 39 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as “RE (RD) Act, 2016” or “Act”) the Authority can rectify any error that is apparent from the record. The text of section 39 of RE (RD) Act, 2016 is reproduced below:
Section 39: Rectification of orders
“The Authority may, at any time within a period of two years from the date of the order made under this Act, with a view to rectifying any mistake apparent from the record, amend any order passed by it, and shall make such amendment, if the mistake is brought to its notice by the parties:
Provided that no such amendment shall be made in respect of any order against which an appeal has been preferred under this Act:
Provided further that the Authority shall not, while rectifying any mistake apparent from record, amend substantive part of its order passed under the provisions of this Act.”
It is thus evident from the unambiguous language of Section 39 of the RE(RD) Act, 2016, that while rectifying any mistake apparent on the face of the record, the Authority is precluded from amending the substantive part of its order passed under the provisions of the Act.
Accordingly, the final order dated 13.12.2022 cannot be rectified, as it would tantamount to amending the substantive part of the said order, which is prohibited under Section 39 of the Act. This order shall be annexed to the final order dated 13.12.2022.