IMPORTANT POINT
Refund of advance amount – When major defects are pointed out it is not expected that allottee would be compelled to take house in dilapidated condition which is not habitable, by forfeiting his rights.

JUDGMENT ON BOARD

Goutam Bhaduri, J.—Since both the appeals are against the order dated 18-10-2023 passed by the Chhattisgarh Real Estate Appellate Tribunal, Raipur, (henceforth ‘the Tribunal’) in Appeal No.62 of 2022 arising out of order dated 23-12-2020 passed by the Real Estate Regulatory Authority, Raipur (henceforth ‘the RERA’) in case No.M-PRO-2020-01048 they are being heard and decided together by this common judgment.

2. MA No. 12 of 2024 is preferred by the Chhattisgarh Housing Board whereas MA No. 186 of 2023 is preferred by Manish Sharma.

3. After hearing the parties, the following question emerges for consideration:

Whether as against the pleadings of the parties the Court can frame a new issue in its judgment, which may cause prejudice to the parties ?

4. (i) Brief facts of the case are that on 10/05/2011 Manish Sharma (henceforth ‘the allottee’) was allotted a house bearing No.Peepal-I/170 in the scheme of the Chhattisgarh Housing Board (henceforth ‘the Board’) namely; Peepal-I. Subsequently, on the request of allottee, the house bearing No.Peepal-I/166 was allotted for which extra amount of Rs.10,000/- was paid as transfer fees. The last installment was demanded on 4-3-2015 and, as such, the total amount of Rs.36,53,434/- was deposited by the allottee. Subsequently, the lease deed was executed after four years of allotment on 24-9-2015. The allottee was given the possession letter on 23-11-2015. When the allottee went for taking possession of the house, he found that the house was in dilapidated condition, as such, frequent e-mails were sent on different date for rectifying the defects. The Estate Officer of the Board asked the Executive Engineer to rectify the defects and, in turn, inform it to the Board. Thereafter, to the Estate Officer of the Board again e-mail dated 26/11/2015, 2/12/2015, 3/12/2015 & 19/07/2019 were sent. When nothing had transpired, the allottee eventually sent an e-mail dated 20/08/2019 to the Executive Engineer. Thereafter, legal notice was issued by the allottee and lastly a complaint before the RERA was filed on 26-5-2020.

(ii) In the month of June, 2020 reply was filed by the Board wherein the expert opinion was sought for rectification of the defects pointed out in the house and it was referred that because of inherent defect in the plinth, the cracks on walls had occurred. After coming to know about this fact that the house was still incomplete, the allottee, on 21-7-2020 withdrew from the project and the Board, in turn, in reply to rejoinder agreed to refund the amount with interest.

(iii) Subsequently, the order was passed by the RERA on 23-12-2020 wherein it was partly allowed and the amount of Rs.17,152/- as interest was directed to be returned on payment of advance lease rent and adjustment of advance lease amount computing the lease period from the date of handing over of possession and further the Board was directed to rectify the entire defect and handover possession of the house to the allottee.

(iv) Against the order, the allottee preferred an appeal before the Tribunal wherein the Tribunal by its order dated 18-10-2023 has directed to pay interest at the rate of 10.70% per annum for every month of delay on the amount of Rs.36,53,500/- from 1-1-2016 till handing over of the possession of the house to the allottee. Aggrieved by such order, both the Board and the Allottee are before this Court.

5. Learned counsel appearing for the Board would submit that once the lease deed having been executed, no return of amount can be ordered for unless the lease is surrendered. He would further submit that as per Sections 18 & 71 of the Real Estate (Regulation and Development) Act, 2016 (henceforth ‘the RERA Act’) in order to adjudicate the quantum of compensation it is to be decided by the competent authority under the Act, not below the rank of District Judge. He would also submit that since the allottee sought for refund of entire amount that could not be done because lease was exi