Appellate Court Must Accept Concession Recorded by Judge, as Judge Present During Concession Can Vouch for Its Occurrence | HC

Case Details: Era Realtors (P.) Ltd. v. Prakash Shah - [2024] 160 taxmann.com 721 (HC-Bombay)

Judiciary and Counsel Details

• • Sandeep V. Marne, J.
  • Shakeeb Shaikh & Noorain Patel for the Appellant.
  • Aseem Naphade, Rajendra Mishra, Mukesh Gupta & Ms Asmita Yadav for the Respondent.

Facts of the Case

In the instant case, Respondents, being allottees of various flats in a project developed by the appellant-real estate company approached the Maharashtra Real Estate Regulatory Authority (MahaRERA) by filing their respective complaints against the appellant seeking possession of their respective flats with interest for delayed delivery of possession.

The Respondents made a concession before the Regulatory Authority that they were willing to accept interest only on amounts paid by them after the date of implementation of RERA, i.e. May 2017. The MahaRERA proceeded to allow prayers made by respondents.

However, before the Appellate Authority, respondents insisted that no such concession was applied by them before the Regulatory Authority. The Appellate Tribunal thus, modified the Regulatory Authority’s order by directing the appellant to pay interest to the respondent on the entire amount paid by them on the entire amount collected from them.

It is well settled that if a concession is recorded by a Judge, the Appellate Court has to believe that such concession was indeed made. This is because the Judge, in whose presence concession is recorded, can alone vouch about the factum of making such concession.

Therefore, the Court corrects the course of action for a party to invite contention of the Judge who recorded the concession if he/she feels that the recording of the concession was erroneous. Therefore, it was incumbent upon respondents to invite the attention of the Regulatory Authority immediately after receiving a copy of the order by pleading that they never made the concession recorded in the order.

High Court Held

The High Court noted that it was not open for respondents to directly file an appeal before the Appellate Authority complaining recording of the concession was erroneous. However, admittedly no such application was filed by respondents. To make their case worse, respondents did not even plead in the appeal memo that the recording of the concession by the Regulatory Authority was wrong or that they never made any such concession.

Further, a perusal of the order passed by the Appellate Authority would indicate that it entertained an oral plea about not making a concession before the Regulatory Authority, which was impermissible in law.

The High Court held that the order passed by the Appellate Authority suffers from palpable error. Further, the Appellate Authority had committed a jurisdictional error in entertaining the appeal filed by respondents without first moving regulatory authority to seek clarification in respect of the concession recorded in the order and the second error committed by the Appellate Tribunal was in entertaining the oral plea of not making concession before the Regulatory Authority in absence of pleading in appeal memo. Therefore, the order passed by the Appellate Tribunal was indefensible and was to be set aside.