1. Heard Mr.Vinay Gupta, Advocate for the applicant and Ms. Sanjana Saddy, Advocate, for the opposite party.
2. The complainant has filed MA/127/2024 for clarification of final order dated 30.01.2024, passed in CC/1404/2015. In the MA, the complainant has prayed “to clarify the aspects and  issues mentioned in paragraph 7 and 8, 8(a) to 8(f), supra with respect to holding charges and payment default consequences, if any, by opposite party.
3. The complainant also filed RA/63/2024 on the same date of filing of this MA, in which, seeking for review of the judgment dated 30.01.2024 to clarify the aspects and issues mentioned in the RA, in paragraph 7 to 10, with respect to (i) interest charge, (ii) period of awarded delay compensation, (iii) rate of interest awarded qua compensation, and (iv) the pendent lite award entitlement of complainants. In paragraph 11 of this RA, the complainant mentioned that this RA is confined to the grievances and issues raised above and the complainant does not dispute or is aggrieved (except on the issues for which a separate clarification application has been filed), as regards the other operative part of the said judgment and relief awarded, being rightly and correctly awarded compensation on their respective deposit amounts. This RA was dismissed by the order dated 07.03.2024.  
4. The counsel for the opposite party has raised an objection in respect of maintainability of this MA, on the ground that after the order dated 30.01.2024, the complainant filed RA/63/2024, which was dismissed on 07.03.2024 and the opposite party filed RA/144/2024, which was dismissed on 07.05.2024. Since this Commission has declined to review its order, the MA is not maintainable. The counsel for the opposite party has relied upon the judgment of the Supreme Court in Ketan Kantilal Seth Vs. State of Gujarat & Ors., 2023 SCC onLine SC 917. 
5. We have considered the arguments of the counsel for the parties and examined the record. So far as the judgment relied upon by the counsel for the opposite party in Ketan Kantilal’s Case (supra) is concerned, it arose out of criminal proceedings, and under Section 462 Cr.P.C., the power of review has been specifically barred. The Supreme Court has relied upon the Supreme Court Rules in that case. Therefore, above case law has no application in the present case, inasmuch as, under Section 22(2) of the Consumer Protection Act, 1986, this Commission has been assigned power of review. In earlier review applications, we do not find any error apparent on the face of record to review the judgment, in the light of the grounds raised in the review applications.
6. The nomenclature of the application, as miscellaneous application, is immaterial as this Commission has been conferred with jurisdiction to review; as such, the preliminary objection of the counsel for the opposite party is rejected. 
7. In paragraph 14 of the judgment dated 30.01.2024, this Commission has noticed as follows:-

"Clause 18 of the allotment letter provides that possession will not be handed over unless the execution of the sub-lease deed. If an allottee fails to take possession, when offered by the company, the allottee shall be liable to pay holding charges. Possession was handed over before execution of sub-lease deed in this case. As such, from the date of possession, the allottee is liable to pay holding charges." 

8. While holding that possession was handed over before the execution of the sub-lease deed in this case, this Commission failed to notice that possession was handed over in compliance of the interim order dated the 27.05.2016, in which, this Commission has observed as follows:-

“In view of the aforesaid arrangement arrived at between the parties, it is ordered that complainants shall pay demanded amount without prejudice to their rights and pleas to the opposite party within a week and on the receipt of the payment, the opposite party shall deliver the physical possession of the flats to the complainants. On the aforesaid arrangement being complied with, the opposite party shall be restrained from raising any further payment till further orders.”

9. Clause 18 of the allotment letter, is quoted below:-

“That no possession of the flat shall be handed over unless the sub lease deed of the same has been duly executed between the Noida Authority, the Company and the Allottee(s). If the Allottee(s) fails to take the possession when offered by the company, the Allottee(s) shall be liable to pay watch and ward charges @ Rs.5/- Per sq. ft. per month of Super Area.”

10. Execution of the sub-lease deed before handing over possession is a condition precedent for handing over possession under Clause 18 of the allotment letter. Holding charges are payable, when the allottee is failed to take possession after offer of possession in accordance with clause-18. Although possession was offered in January/February/March to various members of the complainant but it was not offered in accordance with clause-18 of the Allotment Letter as no sub-lease deed was executed in favour of any member of the complainant. The possession was handed over under the interim order of this Commission, which protected the right of complainants, raised in the complaint, to be decided later on. Since holding charges are payable if the allottee fails to take possession when offered by the company after execution of sub-lease deed and in the present case, the opposite party offered possession in January 2016 without sub-lease deed as such holding charges are not payable. Pursuant to the direction of this Commission dated 27.05.2016, possession was delivered on 10.07.2016 and sub-lease deed was executed in December 2016. Therefore, holding charges is not payable.
11. This was an inadvertent error as this Commission has failed to notice the order dated 27.05.2016. Accordingly, we allow this MA/127/2024 and clarify that the holding charges were not payable by the members of the complainant, on whose behalf this complaint has been filed. The operative portion of the order is modified to the extent that opposite party will not charge the holding charges from the members of the complainant, on whose behalf this complaint has been filed. Any amount deposited by the member of the complainant in this head shall be refunded with interest @9% per annum within a period of two months. We usually do not direct for payment default consequences.