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Judgment
By this order we shall decide the application of applicant/Complainant for rectification in the order dated 21.10.2022. The applicant as per his application dated 04.07.2023 has sought rectification of the final order passed by this Authority on 21.10.2022 in complaint case no. 79/2020 titled Sh. Rohit Gyanchandani Vs. M/s Parsvnath Land Mark Developers Pvt. Ltd. It is submitted by Ld. Counsel for applicant that the Authority has awarded interest from date of deposit till “the date of order”, while it should be “till realisation/actual return”. The operative part of order in para 29 reads as under:-
“Since, the Respondents changed the flat size & dimensions without the consent of the Complainant, we direct the Respondents M/s Parsavnath Land Mark Developers Pvt. Ltd. to refund the entire amount of Rs.6,04,28,744/- (Rupees Six Crore Four Lakh Twenty Eight Thousand Seven Hundred and Forty Four Only) to the Complainant, Mr. Rohit Gyanchandani within 45 days of issuance of this order along with interest at the rate of 10% per annum (i.e., MCLR+2%) from the date of payment of each sum until date of its actual return.” instead of “Since, the Respondents changed the flat size & dimensions without the consent of the Complainant, M/s Parsavnath Land Mark Developers Pvt. Ltd. to refund the entire amount of Rs.6,04,28,744/- (Rupees Six Crore Four Lakh Twenty Eight Thousand Seven Hundred and Forty Four Only) to the Complainant, Mr. Rohit Gyanchandani within 45 days of issuance of this order along with interest at the rate of 10% per annum (i.e., MCLR+2%) from the date of payment of each sum and to the date of its order.”
Notice of application was given to Respondents. Ld. Counsel for Respondents submitted that the rectification sought will change the quantum of money to be refunded, therefore, it is impermissible under section 39 of the RE (RD) Act, 2016. He argued that only the mistakes apparent from the record can be rectified. Therefore, application be dismissed.
We have heard the arguments of Ld. Counsels for both the parties and perused the record.
The Authority notes that it had passed final orders on 21.10.2022 in four matters bunched together in complaint cases no. 77/2020, 78/2020, 79/2020, and 80/2020 relating to Sh. Bimal Kumar, Sh. Rahul Gyanchandani, Sh. Rohit Gyanchandani and Sh. Manoj Kumar respectively.
The operative portions of these orders are reproduced below:-
Complaint case no. 77/2020: Sh. Bimal Kumar Vs. M/s Parsvnath Land Mark Developers Pvt. Ltd.
“Since, the Respondents changed the flat size & location without the consent of the Complainant, we direct the Respondents, M/s Parsavnath Land Mark Developers Pvt. Limited to refund the entire amount of Rs.6,04,28,744/- (Rupees Six Crore Four Lakh Twenty Eight Thousand Seven Hundred Forty Four only) to the Complainant, Mr. Bimal Kumar within 45 days of issuance of this order along with interest at the rate of 10% per annum (i.e., MCLR+2%) from the date of payment of each sum until date of its actual return.”
Complaint case no. 78/2020: Sh. Rahul Gyanchandani Vs. M/s Parsvnath Land Mark Developers Pvt. Ltd.
“Since, the Respondents changed the flat size & dimensions without the consent of the Complainant, M/s Parsavnath Land Mark Developers Pvt. Ltd. to refund the entire amount of Rs.6,03,01,508/-(Rupees Six Crore Three Lakh One Thousand Five Hundred and Eight Only) to the Complainant, Mr. Rahul Gyanchandani within 45 days of issuance of this order along with interest at the rate of 10% per annum (i.e., MCLR+2%) from the date of payment of each sum and to the date of its order.”
Complaint case no. 79/2020: Sh. Rohit Gyanchandani Vs. M/s Parsvnath Land Mark Developers Pvt. Ltd.
“Since, the Respondents changed the flat size & dimensions without the consent of the Complainant, we direct the Respondents M/s Parsavnath Land Mark Developers Pvt. Ltd. to refund the entire amount of Rs.6,04,28,744/- (Rupees Six Crore Four Lakh Twenty Eight Thousand Seven Hundred and Forty Four Only) to the Complainant, Mr. Rohit Gyanchandani within 45 days of issuance of this order along with interest at the rate of 10% per annum (i.e., MCLR+2%) from the date of payment of each sum and to the date of its order.”
Complaint case no. 80/2020: Sh. Manoj Kumar Vs. M/s Parsvnath Land Mark Developers Pvt. Ltd.
“Since, the Respondents changed the flat size & dimensions without the consent of the Complainant, we direct the Respondents, M/s Parsavnath Land Mark Developers Pvt. Limited to refund the entire amount of Rs.6,03,01,508/- (Rupees Six Crore Three Lakh One Thousand Five Hundred and Eight Only) to the Complainant, Mr. Manoj Kumar within 45 days of issuance of this order along with interest at the rate of 10% per annum (i.e., MCLR+2%) from the date of payment of each sum and to the date of its order.”
In the above orders, we have observed that law is well settled that the allottees/homebuyers hold an unqualified right to seek refund of the amount with interest at such rate as may be prescribed in this behalf. A conscious decision has been taken by the legislature to cast an obligation upon the promoter to refund the amount on demand along with interest at rate prescribed.
In every case for recovery of an amount under the general law of land, interest is paid pendente lite at a certain rate and till realisation at same or different rate. Awarding of interest till realisation of amount is to compensate the awardee for the loss suffered by him. In the present case interest is awarded till date of order, which apparently is an advertent mistake and error. The operative part of the order has to be in consonance with spirit of the judgement. Therefore, any variance appearing in the operative part and judgment as a whole, can be rectified.
It has also been held through the recent judgments of the Hon’ble Supreme Court that the Regulatory Authorities have exclusive jurisdiction to direct refund of the amount, and interest on the refund amount to the allottees. (Vide: Imperia Structures Ltd. Vs. Anil Patni and Another, 2020 (10) SCC 783, and Newtech Promoters and Developers Pvt. Ltd. v. State of UP And Ors., Civil Appeal Nos. 6745-6749 of 2019).
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 or amend its orders if any mistake is apparent from the record.
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.”
In all four cases, the facts and observations of the Authority were similar and the issue to be decided was similar. We note that in Complaint case no. 77/2020 titled Sh. Bimal Kumar Vs. M/s Parsvnath Land Mark Developers Pvt. Ltd., we have ordered “refund with interest at the rate of 10% per annum (i.e., MCLR+2%) from the date of payment of each sum until date of its actual return”. However, in the case of applicant Sh. Rohit Gyanchandani Vs. M/s Parsvnath Land Mark Developers Pvt. Ltd., the order was “refund along with interest at the rate of 10% per annum (i.e., MCLR+2%) from the date of payment of each sum and to the date of its order.” Since no two yardsticks can be applied while deciding similar cases, we are of opinion that there has been a typographical error and order should have been “refund with interest at the rate of 10% per annum (i.e., MCLR+2%) from the date of payment of each sum until date of its actual return”.
Considering the above, we order that the operative para no.29 in Complaint case no. 79/2020 be read as:
“Since, the Respondents changed the flat size & dimensions without the consent of the Complainant, we direct the Respondents M/s Parsavnath Land Mark Developers Pvt. Ltd. to refund the entire amount of Rs.6,04,28,744/- (Rupees Six Crore Four Lakh Twenty Eight Thousand Seven Hundred and Forty Four Only) to the Complainant, Mr. Rohit Gyanchandani within 45 days of issuance of this order along with interest at the rate of 10% per annum (i.e., MCLR+2%) from the date of payment of each sum until date of its actual return.”
The final order dated 21.10.2022 stands modified to the above extent. This order shall be attached with the final order dated 21.10.2022.