EXPERION DEVELOPERS PVT. LTD versus SUSHMA ASHOK SHIROOR on 7 April 2022

SUPREME COURT REPORTS

[2022] 5 S.C.R.

AEXPERION DEVELOPERS PVT. LTD.

v.

SUSHMA ASHOK SHIROOR

(Civil Appeal No. 6044 of 2019)

BAPRIL 07, 2022

[UDAY UMESH LALIT, S. RAVINDRA BHAT ANDPAMIDIGHANTAM SRI NARASIMHA, JJ.]

Consumer Protection Act, 1986 – ss. 23, 14 – Failure on partof developer to deliver possession of apartment to the consumerCwithin the time stipulated as per the Apartment Buyers Agreement –The consumer, against such failure, approached the NationalConsumer Disputes Redressal Commission – Commission directedthe developer to refund purchase amount interest @ 9% p.a. to theConsumer – Aggrieved developer filed instant appeal – Held: TheDCommission created under the Consumer Protection Act has thepower to direct refund of the purchase amount along with interestunder s.14 of the Act and was right in holding that the clauses ofthe agreement are one-sided and that the Consumer is not bound toaccept the possession of the apartment and can seek refund of theamount deposited by her with interest – Further the ApartmentEBuyer’s Agreement which are found to be one-sided are oppressive,constituting unfair trade practice and such terms of the Agreementcannot be enforced – Order of Commission upheld – Real Estate(Regulation and Development) Act, 2016 – s.18 – Contract – Onesided contract.F

Consumer Protection Act, 1986 – Real Estate (Regulation andDevelopment) Act, 2016 – Harmonious Construction – TheConsumer Protection Act and the Real Estate (Regulation andDevelopment) Act neither exclude nor contradict each other andthey must be read harmoniously to subserve their common purposeGand hence one Act does not bar the remedy available under theother Act – When Statutes provide more than one judicial fora foreffectuating a right or to enforce a duty-obligation, it is a featureof remedial choices offered by the State for an effective access tojustice and hence there has to be a harmonious construction ofstatutes provisioning plurality of remedies – Interpretation of statutes.H

Consumer Protection Act, 1986: s.14 – Power under, scope –Power to direct refund of the amount and to compensate a consumerfor the deficiency in not delivering the apartment as per the termsof Agreement is within the jurisdiction of the Consumer Courts –Under s.14 of the Act, if the Commission is satisfied that any of theallegations contained in the complaint about the services are proved,it shall issue an order to the opposite party directing him to, returnto the complainant the price or as the case may be, the chargespaid by the complainant – ‘Deficiency’ is defined under s.2(g) toinclude any shortcoming or inadequacy in performance which hasbeen undertaken by a person in pursuance of a contract orotherwise relating to any service – Therefore Commission isempowered to direct refund of the price or the charges paid by theconsumer Dismissing the appeal filed by the Developer and partlyallowing the appeal filed by the Consumer, the Court

Conclusion

HELD: 1. On the question of reckoning the date for handingover of possession of the apartment, the Commission recordedthe fact admitted by the Developer in Para 2 of its reply that “thetrigger date for clause 10.1 is 26.12.2012, which is the date ofexecution of the apartment buyer’s agreement”. The Commissioncalculated 42 months from this period, which turns out to be26.06.2016. Further, adding the grace period of 180 days, thetime for delivery would expire on 26.12.2016. It is again anadmitted fact that the occupancy certificate was obtained only on23.07.2018 and notice for possession was issued to the Consumeron 24.07.2018. Given the factual position and having examinedthe terms of the Agreement, the Commission found the judgmentof this Court in Pioneer Urban Land and Infrastructure Ltd vGovindan Raghvan is a relevant and conclusive precedent. Theprinciple laid down in Pioneer’s case has been followedconsistently in many cases where the terms of the ApartmentBuyer’s Agreement were found to be one-sided and entirelyloaded in favour of the Developer, and against the allottee at everystep. Therefore the Commission was correct in its approach inholding that the clauses of the agreement are one-sided and thatthe Consumer is not bound to accept the possession of the AB

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Aapartment and can seek refund of the amount deposited by herwith interest. [Paras 8.1, 9.1, 10][598-E-G; 600-B-C; 602-B]

Pioneer Urban Land and Infrastructure Ltd. v.Govindan Raghvan (2019) 5 SCC 725 : [2019]5 SCR 1169 – relied on.

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2. It is crystal clear that the Consumer Protection Act andthe RERA Act neither exclude nor contradict each other. In fact,this Court has held that they are concurrent remedies operatingindependently and without primacy. When Statutes provisioningjudicial remedies fall for construction, the choice of theCinterpretative outcomes should also depend on the constitutionalduty to create effective judicial remedies in furtherance of accessto justice. A meaningful interpretation that effectuates access tojustice is a constitutional imperative and it is this duty that mustinform the interpretative criterion. When Statutes provide morethan one judicial fora for effectuating a right or to enforce a duty-Dobligation, it is a feature of remedial choices offered by the Statefor an effective access to justice. Therefore, while interpretingstatutes provisioning plurality of remedies, it is necessary forCourts to harmonise the provisions in a constructive manner[Paras 14.1, 14.2][606-E-G]

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3. The power to direct refund of the amount and tocompensate a consumer for the deficiency in not delivering theapartment as per the terms of Agreement is within the jurisdictionof the Consumer Courts. Under Section 14 of the ConsumerProtection Act, if the Commission is satisfied…that any of theFallegations contained in the complaint about the services are proved,it shall issue an order to the opposite party directing him to, returnto the complainant the price or as the case may be, the chargespaid by the complainant. ‘Deficiency’ is defined under Section2(g) to include any shortcoming or inadequacy in performancewhich has been undertaken by a person in pursuance of a contractGor otherwise relating to any service. It is clear from the statutoryposition that the Commission is empowered to direct refund ofthe price or the charges paid by the consumer. A consumerinvoking the jurisdiction of the Commission can seek such reliefsas he/she considers appropriate. A consumer can pray for refund H

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of the money with interest and compensation. The consumercould also ask for possession of the apartment with compensation.The consumer can also make a prayer for both in the alternative.If a consumer prays for refund of the amount, without an alternativeprayer, the Commission will recognize such a right and grant it,of course subject to the merits of the case. If a consumer seeksalternative reliefs, the Commission will consider the matter inthe facts and circumstances of the case and will pass appropriateorders as justice demands. This position is similar to the mandateunder Section 18 of the RERA Act. Hence the Commission hascorrectly exercises its power and jurisdiction in passing the abovedirections for refund of the amount with interest. [Paras 15, 16,19][607-F-G; 608-A-D; 609-A; 610-C]

4. For the interest payable on the amount deposited to berestitutionary and also compensatory, interest has to be paid fromthe date of the deposit of the amounts. The Commission in theorder impugned has granted interest from the date of last deposit.It does not amount to restitution. Following the decision in DLFHomes Panchkula Pvt Ltd v. DS Dhanda and in modification ofthe direction issued by the Commission, it is directed that theinterest on the refund shall be payable from the dates of deposit.Therefore, the appeal filed by purchaser deserves to be partlyallowed. The interests shall be payable from the dates of suchdeposits. [Para 22.1][611-F-G]

DLF Homes Panchkula Pvt. Ltd. v. DS Dhanda and Ors.(2020) 16 SCC 318 : [2019] 7 SCR 1061; WingCommander Arifur Rahman Khan and Aleya Sultana &Ors. v. DLF Southern Homes Private Limited (2020) 16SCC 512 : [2020] 9 SCR 136; NBCC (India) Ltd. v.Shri Ram Trivedi (2021) 5 SCC 273; DLF HomeDevelopers Ltd. v. Capital Greens Flat BuyersAssociation & Ors. (2021) 5 SCC 537; IREO GraceRealtech (P) Ltd. v. Abhishek Khanna & Ors. (2021) 3SCC 241; Imperia Structures Ltd v. Anil Patni & Anr.(2020) 10 SCC 783; Pioneer Urban Land InfrastructureLtd. & Anr. v. Union of India & Ors. (2019) 8 SCC 416: [2019] 10 SCR 381 – relied on.

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From the Judgment and Order dated 19.06.2019 of the NationalDConsumer Disputes Redressal Commission, New Delhi in ConsumerComplaint No.2648 of 2017.

With

Civil Appeal No.7149 of 2019.

Jitendra Chaudhary, Ms. Shilpa Chohan, Dr. Pratyush Nandan,ERajesh Singh, Gagan Gupta, Advs. for the appearing parties.

The Judgment of the Court was delivered by PAMIDIGHANTAM SRI NARASIMHA, J.

1. These appeals under Section 23 of the Consumer ProtectionFAct, 1986[1], arise out of the judgment dated 19.06.2019 passed by theNational Consumer Disputes Redressal Commission[2]. The Commissiondirected the Appellant- Developer to refund an amount of Rs. 2,06,41,379with interest @ 9% p.a. to the Respondent-Consumer[3] for its failure todeliver possession of the apartment within the time stipulated as per theGApartment Buyers Agreement. In these appeals, we have upheld theCommission’s order insofar as it directed the Developer to refund theamounts paid by the Consumer with interest for the unjustifiable delay in H

1 hereinafter referred to as the “Act”.

2 hereinafter referred to as “Commission”.

3 hereinafter referred to as the “Consumer”.

delivering the apartment. On law, we have considered the interplaybetween the judicial remedies under the Act and the Real Estate(Regulation and Development) Act, 2016 and have explained the remedialchoices of a consumer under these statutes. We have held that theCommission created under the Act has the power to direct refund underSection 14 of the Act. We conclude that the Act and the RERA Actneither exclude nor contradict each other and they must be readharmoniously to subserve their common purpose.

2. The brief facts of the case are that the Developer, M/s ExperionDevelopers Private Ltd., is the promoter of apartment units, Windchants,in Sector 112, Gurgaon, Haryana. The Consumer booked an apartmentmeasuring 3525 sq. ft. for a total consideration of Rs. 2,36,15,726/- inthe Windchants and agreed for construction linked payment plan, whichled to the execution of the Apartment Buyer’s Agreement dated26.12.2012. As per Clause 10.1 of the Agreement, possession was to begiven within 42 months from the date of approval of the building plan orthe date of receipt of the approval of the Ministry of Environment andForests, Government of India for the Project or date of the execution ofthe agreement whichever is later. Clause 13 of the Agreement providedfor Delay Compensation. Under this clause, if the Developer did notoffer possession within the period stipulated in the Agreement, it shallpay liquidated damages of Rs. 7.50 per square foot per month tillpossession is offered to the Consumer.

3.1 The Consumer approached the National Disputes RedressalCommission by filing an original complaint being, Consumer Case No.2648/2017, alleging that he has paid a total consideration of Rs.2,06,41,379/- and possession was not granted even till the filing of thecomplaint. He, therefore, sought a refund of Rs. 2,06,41,379/- along withinterest @ 24% p.a.

3.2 The Developer filed its Written Statement before theCommission stating that though the 42 months period expires on 26-6-2016[4], the purchaser will only be entitled to delay compensation underClause 13, for a sum of Rs. 4,54,052/-. Justification for the delay is givenby pleading that the Occupation Certificate for Phase-I of the project 4 The Commission in impugned order has recorded the statement of the Developer inthe reply dated 16.02.2018 raising preliminary objections where it admitted that the“The trigger date for clause 10.1 is 26.12.2012 which is the date of execution of theapartment buyer’s agreement.”

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Ahad already been obtained on 06.12.2017, and application for OccupationCertificate for Phase-2, had already been made. In the affidavit ofevidence, the Developer contended that it secured the OccupationCertificate on 23.07.2018 and a notice of possession was issued to theConsumer on 24.07.2018. It was claimed that since possession can behanded over, the complaint must be dismissed.B

4. The Commission, in its judgment dated 19.06.2019, allowed thecomplaint after referring to Clause 10 (relating to the project completionperiod), Clause 11 (relating to the possession and conveyance of theapartment), as well as Clause 13 (relating to delay in possession). TheCommission found that the agreement is one-sided, heavily loaded againstCthe allottee and entirely in favour of the Developers. Following thedecisions of this Court in Pioneer Urban Land and InfrastructureLtd. v. Govind Raghvan,[5] (“Pioneer”), the Commission directed theDeveloper to refund the amount of Rs.2,36,15,726/- with interest @ 9%p.a.D

5.1 It is against these findings and the consequential directions ofthe Commission that the Developer filed the present Civil Appeal No.6044/2019. The Consumer also filed an appeal being Civil Appeal No.7149/2019, challenging the Commission’s judgment to a limited extentfor grant of an enhanced interest @ 24% p.a.

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5.2 Assailing the judgment of the Commission, Shri Gagan Gupta,on behalf of the Developer submitted that the decision of this Court inPioneer has no application to the facts of the present case, as in Pioneer,the Court did not have to deal with Delay Compensation Clause like inthe present case. Terms of the Apartment Buyer’s Agreement alone,Faccording to him, would govern the relations between the parties. Heargued that no prejudice would be caused to the Consumer if he is askedto take possession of the property. Referring to the provisions of theReal Estate (Regulation and Development) Act, 2016[6] and particularlyto the Regulations made by Haryana Real Estate Regulatory Authority,which were relied on in Pioneer case, he submitted that the ConsumerGhas elected to proceed under the Consumer Protection Act, 1986 andtherefore the provisions of RERA Act will not apply and the Pioneercannot be followed as a precedent. In the alternative, he argued that the 5 Pioneer Urban Land and Infrastructure Ltd. v. Govindan Raghvan (2019) 5 SCC 725

H6 hereinafter referred to as “RERA Act”.

interest granted by the Commission is excessive in both the period of thegrant and the rate of interest.

5.3 Shri Jitendra Chaudhary, learned counsel on behalf of theConsumer, supported the decision of the Commission on all counts andalso relied on the judgment of this Court in Pioneer. In his appeal, heargued that the rate of interest granted by the Commission is far too lowand urged for enhancement of the rate of interest to @ 24% p.a. asdemanded by her in the petition before the Commission.

6. Having heard the parties the following issues arise forconsideration:

I. Whether the terms of the Apartment Buyers Agreement amountto an ‘unfair trade practice’ and whether the Commission is justifiedin not giving effect to the terms of Apartment Buyer’s Agreementas laid down in the Pioneer case?

II. Whether the Commission has the power under the ConsumerProtection Act, 1986 to direct refund of the amount deposited bythe Consumer with interest?

III. Whether the relief granted by the Commission require anymodification to serve ends of justice?

RE: Issue No. I

7. Clauses 10.1 and 13.1 of the Apartment Buyers Agreementrelating to project completion period and delay compensation may benoticed:

“10 PROJECT COMPLETION PERIOD

10.1 “Subject to Force Majeure, timely payment of the TotalSale Consideration and other provisions of this Agreement,based upon the Company’s estimates as per present Projectplans, the Company intends to hand over possession of theApartment within a period of 42 (forty two) months from thedate of approval of the Building Plans or the date of receiptof the approval of the Ministry of Environment and Forests,Government of India for the Project or execution of thisAgreement, whichever is later (‘Commitment Period’). TheBuyer further agrees that the Company shall additionally beentitled to a time period of 180 (one hundred and eighty)

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days (‘Grace Period’), after expiry of the Commitment Periodfor unforeseen and unplanned Project realities. However, incase of any default under this Agreement that is not rectifiedor remedied by the Buyer within the time period as may bestipulated, the Company shall not be bound by suchCommitment Period.

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13 DELAY COMPENSATION:

13.1 If the Company fails to offer the possession of theApartment to the Buyer by the end of the Grace Period (or analternate apartment within the meaning of this Agreement), itCshall be liable to pay to the Buyer liquidated damagescalculated at the rate of Rs. 7.50/- (Rupees Seven and FiftyPaise only) per sq. ft. of Sale Area as full and final settlementof any loss of whatsoever nature (‘Delay Compensation’) forevery month of delay or part thereof until the date of Noticeof Possession. The Buyer shall be entitled to payment/Dadjustment of the Delay Compensation only at the time ofpayment of the final installment and other dues and chargespayable to the Company before assuming the possession ofthe Apartment. No other claim of any description shall beraised against the Company”.

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8.1 On the question of reckoning the date for handing over ofpossession of the apartment, the Commission recorded the fact admittedby the Developer in Para 2 of its reply that “the trigger date for clause10.1 is 26.12.2012, which is the date of execution of the apartmentbuyer’s agreement”. The Commission calculated 42 months from thisFperiod, which turns out to be 26.06.2016. Further, adding the grace periodof 180 days, the time for delivery would expire on 26.12.2016. It is againan admitted fact that the occupancy certificated was obtained only on23.07.2018 and notice for possession was issued to the Consumer on24.07.2018. Given the factual position and having examined the terms ofthe Agreement, the Commission found the judgment of this Court inGPioneer is a relevant and conclusive precedent.

8.2 In somewhat similar factual as well as legal context, this Courtin Pioneer held as under:

“6.1 In the present case, admittedly the appellant builderobtained the occupancy certificate almost 2 years after theH

date stipulated in the apartment buyer’s agreement. As aconsequence, there was a failure to hand over possession ofthe flat to the respondent flat purchaser within a reasonableperiod. The occupancy certificate was obtained after a delayof more than 2 years on 28-8-2018 during the pendency ofthe proceedings before the National Commission. In LDA v.M.K. Gupta, this Court held that when a person hires theservices of a builder, or a contractor, for the construction ofa house or a flat, and the same is for a consideration, it is a“service” as defined by Section 2(o) of the ConsumerProtection Act, 1986. The inordinate delay in handing overpossession of the flat clearly amounts to deficiency of service.In Fortune Infrastructure v. Trevor D’Lima, this Court heldthat a person cannot be made to wait indefinitely forpossession of the flat allotted to him, and is entitled to seekrefund of the amount paid by him, along with compensation.

6.2 The respondent flat purchaser has made out a clear caseof deficiency of service on the part of the appellant builder.The respondent flat purchaser was justified in terminatingthe apartment buyer’s agreement by filing the consumercomplaint, and cannot be compelled to accept the possessionwhenever it is offered by the builder. The respondent purchaserwas legally entitled to seek refund of the money deposited byhim along with appropriate compensation.

6.3 The National Commission in the impugned order dated23-10-2018 held that the clauses relied upon by the builderwere wholly one-sided, unfair and unreasonable, and couldnot be relied upon……...

6.8 A term of a contract will not be final and binding if it isshown that the flat purchasers had no option but to sign onthe dotted line, on a contract framed by the builder. Thecontractual terms of the agreement dated 8-5-2012 are exfacie one-sided, unfair and unreasonable. The incorporationof such one-sided clauses in an agreement constitutes anunfair trade practice as per Section 2(r) of the ConsumerProtection Act, 1986since it adopts unfair methods orpractices for the purpose of selling the flats by the builder.

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A7. In view of the above discussion, we have no hesitation inholding that the terms of the apartment buyer’s agreementdated 8-5-2012 were wholly one-sided and unfair to therespondent flat purchaser. The appellant builder could notseek to bind the respondent with such one-sided contractualterms.”B

9.1 The principle laid down in Pioneer’s case has been followedconsistently in many cases where the terms of the Apartment Buyer’sAgreement were found to be one-sided and entirely loaded in favour ofthe Developer, and against the allottee at every step. The following areinstances where the terms of the Apartment Buyer’s Agreement wereCfound to be oppressive, constituting unfair trade practice and the Courthas not given effect to such terms of the Agreement:

9.2 In Arifur Rahman Khan v DLF Southern Homes Pvt. Ltd.[7],this Court held that there is no embargo on the award of compensationbeyond the rate stipulated in the Apartment Buyer’s Agreement whereDhanding over the possession of the flat has been delayed. The Courtobserved that the Consumer Forums must take a robust and a common-sense approach by taking judicial notice of the fact that flat purchasersobtained loans and are required to pay EMIs to financial institutions forsubserving their debts. The Delay Compensation Clause provided forERs. 5 per square foot per month. This Court found that this stipulation isclearly one-sided and does not maintain a level platform or even reflecta bargain between the parties. The Court granted additional compensation@ 6% p.a. simple interest to each buyer therein, over and above theDelay Compensation Clause.

F9.3 In NBCC v Shri Ram Trivedi[8], the Court found that theagreement fastening liability on the purchaser to pay simple interest @12% p.a. if he failed to pay instalments on time and at the same time, ifthe seller failed to hand over the possession on time, he would have topay compensation only @ of Rs. 2 per square feet would constitute anunfair trade practice. The Court held that a term of a contract would notGbe final and binding if it is shown that the flat purchasers have no optionbut to sign on the dotted line of a contract framed by the builders. The H

7 Wing Commander Arifur Rahman Khan and Aleya Sultana & Ors. v. DLF SouthernHomes Private Limited (2020) 16 SCC 512

8 NBCC (India) Ltd. v. Shri Ram Trivedi (2021) 5 SCC 273

Court further held that Consumer Forums were empowered to awardjust and reasonable compensation as an incident of its power to directremoval of a deficiency in service; they are not constrained by the rateprescribed in the agreement. The Court held that the compensation couldbe granted even if possession had been delivered. The same principlefollowed in a subsequent decision in DLF Home Developers Ltd. v.Capital Greens Flat Buyers[9].

9.4 A three-judge bench of this Court in IREO Grace Realtech(P) Ltd. V. Abhishek Khanna[10]noticed the delay compensation clause,which is similar to the clause in the present case, which provided thatthe Developer would be liable to pay delay compensation @ Rs 7.5 persquare foot which works out to approximately 0.9 to 1% p.a. The Courtheld that this Clause is one-sided and entirely loaded in favour of theDeveloper and against the allottee. The Court concluded that the powersof the Consumer Court were in no manner constrained to declare acontractual term as unfair and one-sided as an incident of the power todiscontinue unfair or restrictive trade practices. It was held:

“34. We are of the view that the incorporation of such one-sided and unreasonable clauses in the apartment buyer’sAgreement constitutes an unfair trade practice under Section2(1)(r) of the Consumer Protection Act. Even under the1986Act, the powers of the consumer fora were in no mannerconstrained to declare a contractual term as unfair or one-sided as an incident of the power to discontinue unfair orrestrictive trade practices. An “unfair contract” has beendefined under the 2019 Act, and powers have been conferredon the State Consumer Fora and the National Commission todeclare contractual terms which are unfair, as null and void.This is a statutory recognition of a power which was implicitunder the 1986 Act.

35. In view of the above, we hold that the Developer cannotcompel the apartment buyers to be bound by the one-sidedcontractual terms contained in the apartment buyer’sAgreement.”

9 DLF Home Developers Ltd. v. Capital Greens Flat Buyers Association & Ors. (2021)

5 SCC 537

10 IREO Grace Realtech (P) Ltd. v. Abhishek Khanna & Ors. (2021) 3 SCC 241

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A10. Having examined various decisions of this Court whichconsidered similar clauses in Apartment Buyer’s Agreement andfollowing the ratio laid down in Pioneer case, the submission made onbehalf of the Developer has to be rejected. We hold that the Commissionis correct in its approach in holding that the clauses of the agreement areone-sided and that the Consumer is not bound to accept the possessionBof the apartment and can seek refund of the amount deposited by herwith interest.

Re : Issue No. II

11. Shri Gagan Gupta, submitted that the Consumer, having electedCto proceed under the Act, the provisions of the RERA Act will have noapplication. The submission is made to distinguish the facts of the presentcase from the facts of Pioneer, which is relied on by the Commission.

12. This question is no more res integra. In Imperia StructuresLtd v. Anil Patni[11], this Court speaking through Justice Uday UmeshDLalit, examined the jurisdiction of Consumer Forums vis-a-vis the specificremedies created under the RERA Act. This judgment comprehensivelydeals with all aspects of parallel remedies available to the consumersunder the Consumer Protection Act, 1986, and the RERA Act, 2016. InImperia Structures, also, like in the present case, the proceedings aroseout of the decision of the Commission under the Consumer ProtectionEAct, 1986. After a comparative analysis of both the statutes, this Courtheld as under:

“23. It has consistently been held by this Court that theremedies available under the provisions of the CP Act areadditional remedies over and above the other remediesFincluding those made available under any special statutes;and that the availability of an alternate remedy is no bar inentertaining a complaint under the CP Act.

24. Before we consider whether the provisions of the RERAAct have made any change in the legal position stated in theGpreceding paragraph, we may note that an allottee placed incircumstances similar to that of the Complainants, could haveinitiated the following proceedings before the RERA Act cameinto force:

A) If he satisfied the requirements of being a “consumer”under the CP Act, he could have initiated proceedings underthe CP Act in addition to normal civil remedies.

B) However, if he did not fulfil the requirements of being a“consumer”, he could initiate and avail only normal civilremedies.

C) If the agreement with the Developer or the builder providedfor arbitration:-

i) in cases covered under Clause (B) hereinabove, he couldinitiate or could be called upon to invoke the remedies inarbitration.

ii) in cases covered under Clause (A) hereinabove, inaccordance with law laid down in Emaar MGF Land Ltd.Vs. Aftab Singh, he could still choose to proceed underthe CP Act.

25. In terms of Section 18 of the RERA Act, if a promoter failsto complete or is unable to give possession of an apartmentduly completed by the date specified in the agreement, thepromoter would be liable, on demand, to return the amountreceived by him in respect of that apartment if the allotteewishes to withdraw from the Project. Such right of an allotteeis specifically made “without prejudice to any other remedyavailable to him”. The right so given to the allottee isunqualified and if availed, the money deposited by the allotteehas to be refunded with interest at such rate as may beprescribed.The proviso to Section 18(1) contemplates asituation where the allottee does not intend to withdraw fromthe Project. In that case he is entitled to and must be paidinterest for every month of delay till the handing over of thepossession. It is up to the allottee to proceed either underSection 18(1) or under proviso to Section 18(1). The case ofHimanshu Giri came under the latter category. The RERA Actthus definitely provides a remedy to an allottee who wishes towithdraw from the Project or claim return on his investment.

26. It is, therefore, required to be considered whether theremedy so provided under the RERA Act to an allottee is theonly and exclusive modality to raise a grievance and whether

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the provisions of the RERA Act bar consideration of thegrievance of an allottee by other fora.

30. On the strength of the law so declared, Section 79 of theRERA Act does not in any way bar the Commission or Forumunder the provisions of the CP Act to entertain any complaint.

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34. It is true that some special authorities are created underthe RERA Act for the regulation and promotion of the realestate sector and the issues concerning a registered projectare specifically entrusted to functionaries under the RERAAct. But for the present purposes, we must go by the purportCof Section 18 of the RERA Act. Since it gives a right “withoutprejudice to any other remedy available”, in effect, such otherremedy is acknowledged and saved subject always to theapplicability of Section 79.

37. We may now consider the effect of the registration of theDProject under the RERA Act. In the present case theapartments were booked by the Complainants in 2011- 2012and the Builder Buyer Agreements were entered into inNovember, 2013. As promised, the construction should havebeen completed in 42 months. The period had expired wellbefore the Project was registered under the provisions of theERERA Act. Merely because the registration under the RERAAct is valid till 31.12.2020 does not mean that the entitlementof the allottees concerned to maintain an action standsdeferred. It is relevant to note that even for the purposes ofSection 18, the period has to be reckoned in terms of theFagreement and not the registration. Condition (x) of the letterdated 17.11.2017 also entitles an allottee in same fashion.Therefore, the entitlement of the Complainants must beconsidered in the light of the terms of the builder buyeragreements and was rightly dealt with by the Commission”.

G13.1 In view of the clear and categorical principles laid down inImperia, the submissions made on behalf of the Developer have to berejected. This position has also been affirmed in IREO Grace (supra).In IREO Grace (supra) this Court had an occasion to consider thequestion as to whether, the provisions of the RERA Act, must be givenprimacy over the Consumer Protection Act, 1986. After re-examiningH

the provisions of Consumer Protection Act, 1986 and the RERA Act,and following the principles laid down in Imperia the Court held as under:- “37. We will now consider the provisions of the RERA Act,which was brought into force on 01.05.2016. The Statementof Objects and Reasons of the RERA Act, 2016 read asfollows:- “The Statement of Objects and Reasons – The real estate sectorplays a catalytic role in fulfilling the need and demand forhousing and infrastructure in the country. While this sectorhas grown significantly in recent years, it has been largelyunregulated, with absence of professionalism andstandardization and lack of adequate consumer protection.Though the Consumer Protection Act, 1986 is available as aforum to the buyers in the real estate market, the recourse isonly curative and is not adequate to address all the concernsof buyers and promoters in that sector. The lack ofstandardization has been a constrained to the healthy andorderly growth of industry. Therefore, the need for regulatingthe sector has been emphasized in various forums.

In view of the above, it becomes necessary to have a Centrallegislation, namely, the Real Estate (Regulation andDevelopment) Bill, 2013 in the interests of effective consumerprotection, uniformity and standardization of businesspractices and the transactions in the real estate sector. Theproposed Bill provides for the establishment of the Real EstateRegulatory Authority (the Authority) for regulation andpromotion of real estate sector and to ensure sale of plot,apartment or building, as the case may be, in an efficient andtransparent manner and to protect the interest of consumersin real estate sector and establish the Real Estate AppellateTribunal to hear appeals from the decisions, directions ororders of the Authority.

37.1 Section 18 of the RERA Act, 2016 provides the remedyof refund with interest and compensation to allottees, when adeveloper fails to complete the construction or give possessionas per the agreement of sale. The remedies under Section 18are “without prejudice to any other remedy available.”

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A13.2 In coming to its conclusions, the three-Judge bench reliedon the judgment of Imperia which clarified and declared that Section18 of the RERA Act imposed a liability on the promoter to return theamount with interest to the allottee upon its failure to give possessionin accordance with the terms of the agreement. The expression“without prejudice to any other remedy” available in Section 18 ofBthe RERA Act is very important and while noting the same the Courtobserved as under:

“42. In a recent judgment delivered by this Court in ImperiaStructures Ltd. v. Anil Patni, it was held that remedies underthe Consumer Protection Act were in addition to the remediesCavailable under special statutes. The absence of a bar underSection 79 of the r to the initiation of proceedings before afora which is not a civil court, read with Section 88 of theRERA Act makes the position clear. Section 18 of the RERAAct specifies that the remedies are “without prejudice to anyDother remedy available”. We place reliance on thisjudgment..…”

14.1 From the two decisions referred to by us, it is crystal clearthat the Consumer Protection Act and the RERA Act neither excludenor contradict each other. In fact, this Court has held that they areEconcurrent remedies operating independently and without primacy. WhenStatutes provisioning judicial remedies fall for construction, the choiceof the interpretative outcomes should also depend on the constitutionalduty to create effective judicial remedies in furtherance of access tojustice. A meaningful interpretation that effectuates access to justiceFis a constitutional imperative and it is this duty that must inform theinterpretative criterion.

14.2 When Statutes provide more than one judicial fora foreffectuating a right or to enforce a duty-obligation, it is a feature ofremedial choices offered by the State for an effective access to justice.GTherefore, while interpreting statutes provisioning plurality of remedies,it is necessary for Courts to harmonise the provisions in a constructivemanner. It is beneficial to juxtapose the preambular objects of theConsumer Protection Act and the RERA Act to appreciate thecommonality of the objects that both these statutes are to sub-serve:

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EXPERION DEVELOPERS PVT. LTD. v. SUSHMA ASHOK SHIROOR607[PAMIDIGHANTAM SRI NARASIMHA, J.]

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14.3 In this context, the observation of this Court in PioneerUrban Land Infrastructure Ltd v. Union of India[12]where the Courtwas called upon to consider the provisions of Insolvency and BankruptcyCode, 2016, the RERA Act, 2016 and the Consumer Protection Act,1986 is noteworthy:

“100. RERA is to be read harmoniously with the Code, asamended by the Amendment Act. It is only in the event ofconflict that the code will prevail over RERA. Remedies thatare given to allottees of flats/apartments are thereforeconcurrent remedies, such allottees of flats/apartments beingin a position to avail of remedies under the ConsumerProtection Act, 1986, RERA as well as the triggering of theCode.”

15. We may hasten to clarify that the power to direct refund ofthe amount and to compensate a consumer for the deficiency in notdelivering the apartment as per the terms of Agreement is within thejurisdiction of the Consumer Courts. Under Section 14 of the ConsumerProtection Act, if the Commission is satisfied …that any of theallegations contained in the complaint about the services are proved,it shall issue an order to the opposite party directing him to, returnto the complainant the price or as the case may be, the chargespaid by the complainant. ‘Deficiency’ is defined under Section 2(g) to DE

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12 Pioneer Urban Land Infrastructure Ltd. & Anr. v. Union of India & Ors. (2019) 8SCC 416

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Ainclude any shortcoming or inadequacy in performance which has beenundertaken by a person in pursuance of a contract or otherwise relatingto any service. These two provisions are reproduced hereinbelow forready reference.[13] It is clear from the statutory position that theCommission is empowered to direct refund of the price or the chargespaid by the consumer.B

16. A consumer invoking the jurisdiction of the Commission canseek such reliefs as he/she considers appropriate. A consumer canpray for refund of the money with interest and compensation. Theconsumer could also ask for possession of the apartment withcompensation. The consumer can also make a prayer for both in theCalternative. If a consumer prays for refund of the amount, without analternative prayer, the Commission will recognize such a right and grantit, of course subject to the merits of the case. If a consumer seeksalternative reliefs, the Commission will consider the matter in the factsand circumstances of the case and will pass appropriate orders as justice D

13 “14. Finding of the District Forum. – (1) If, after the proceedings conducted undersection 13, the District Forum is satisfied that the goods complained against sufferfrom any of the defects specified in the complaint or that any of the allegations containedin the complaint about the services are proved, it shall issue an order to the oppositeparty directing him to [do] one or more of the following things namely:- E(a) ……

(b) ….(c) to return to the complainant the price, or, as the case may be, the charges paid by thecomplainant;

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(hb) to pay such sum as may be determined by it, if it is of the opinion that loss orinjury has been suffered by a large number of consumers who are not identifiableFconveniently:

Provided that the minimum amount of sum so payable shall not be less than five percent of the value of such defective goods sold or services provided, as the case may be,to such consumers:

Provided further that the amount so obtained shall be credited in favour of such personand utilized in such manner as may be prescribed.

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(i) to provide for adequate costs to parties.

2. Definitions. – (1) In this Act, unless the context otherwise requires,-

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(g) “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality,nature and manner of performance which is required to be maintained by or under anylaw for the time being in force or has been undertaken to be performed by a person inHpursuance of a contract or otherwise in relation to any service;”

demands. This position is similar to the mandate under Section 18 of theRERA Act[14] with respect to which the Court clarified the position inPara 25 of Imperia case referred to herein above.

17. We have referred to the legal regime under the ConsumerProtection Act, only to show that the Commission has the power andjurisdiction to direct return of money under Section 14 of the ConsumerProtection Act, if a consumer so chooses. The freedom to choose thenecessary relief is of the Consumer and it is the duty of the Courts tohonour it.

18. The Consumer in present case prayed for the solitary relieffor return of the amount paid towards purchase of the apartment withouta prayer for alternate relief.[15] Recognizing the right of the Consumer for 14 18. Return of amount and compensation. - (1) If the promoter fails to complete oris unable to give possession of an apartment, plot or building,—

(a) in accordance with the terms of the agreement for sale or, as the case may be, dulycompleted by the date specified therein; or (b) due to discontinuance of his business as a developer on account of suspension orrevocation of the registration under this Act or for any other reason,

he shall be liable on demand to the allottees, in case the allottee wishes to withdrawfrom the project, without prejudice to any other remedy available, to return the amountreceived by him in respect of that apartment, plot, building, as the case may be, withinterest at such rate as may be prescribed in this behalf including compensation in themanner as provided under this Act:

Provided that where an allottee does not intend to withdraw from the project, he shallbe paid, by the promoter, interest for every month of delay, till the handing over of thepossession, at such rate as may be prescribed.

(2) The promoter shall compensate the allottees in case of any loss caused to him dueto defective title of the land, on which the project is being developed or has beendeveloped, in the manner as provided under this Act, and the claim for compensationunder this sub-section shall not be barred by limitation provided under any law for thetime being in force.

(3) If the promoter fails to discharge any other obligations imposed on him under thisAct or the rules or regulations made thereunder or in accordance with the terms andconditions of the agreement for sale, he shall be liable to pay such compensation to theallottees, in the manner as provided under this Act.”

15 The prayer made by the Consumer before the Commission is extracted herein forready reference:

“PRAYER: It is, therefore, most respectfully prayed that This Hon’ble Forum may begraciously be pleased to; (a) Hold the Opposite Party guilty of unfair and restrictivetrade practice as despite taking more than Rs. 2,06,41,379/- they have not completedthe construction in 42 months as promised in the apartment buyer’s agreement. (b)Hold the Opposite Party guilty of cheating, misleading and responsible for deficiencyin service as on one hand they failed to complete the construction in terms of the

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Areturn of the amount with interest and compensation, the Commissionpassed an order directing the Developer as under:

“The opposite party shall refund an amount of Rs.2,06,41,379/- paid by the complainant along with interest @ 9% p.a. fromthe date of last deposit before the due date of possession tillBactual payment on the amount paid before due date ofpossession and after this date if any amount is deposited,then from the date of deposit till actual payment.”

19. For the reasons stated above, we are of the opinion that theCommission has correctly exercises its power and jurisdiction in passingthe above directions for refund of the amount with interest.C

Re : Issue No. III

20. In the appeal filed by the Consumer, the learned counsel prayedthat: (i) the payment of interest must be from the date of payment ofeach instalment and (ii) the rate of interest must be 24% p.a. He hasreferred to the dates on which he has made payments, and sought interestDfrom the said dates:

Details of payment made to the respondent: - E

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agreement and on the other hand they have charged the Complainant more thanRs.2,06,41,379/-. (c) direct the Opposite Party to refund the amount of Rs. 2,06,41,379/G- paid to the Opposite Party along with interest @ 24 % p.a. totalling to Rs. 3,68,32,815/- (rupees Three Crores Sixty-Eight Lacs Thirty Two Thousand Eight Hundred andFifteen Only); (d) the Complainant be awarded future as well as pendentelite interest@ 24 % p.a. (e) Pay a sum of Rs. 5,00,000/- towards cost of the complaint. (f) Passsuch other and further order(s) as this Hon’ble Forum may deem fit and proper underthe facts and circumstances of the case in favour of the Complainant and against theOpposite Party.”H

EXPERION DEVELOPERS PVT. LTD. v. SUSHMA ASHOK SHIROOR611[PAMIDIGHANTAM SRI NARASIMHA, J.]

21. On the other hand, the Appellant-Developer submitted that (i)period for interest should be linked to the estimated date of possessionand not the date of payments and (ii) the rate of interest must be the rateprovided in the Interest Act, 1978.

22.1 We are of the opinion that for the interest payable on theamount deposited to be restitutionary and also compensatory, interesthas to be paid from the date of the deposit of the amounts. The Commissionin the order impugned has granted interest from the date of last deposit.We find that this does not amount to restitution. Following the decision inDLF Homes Panchkula Pvt Ltd v. DS Dhanda[16]and in modificationof the direction issued by the Commission, we direct that the interest onthe refund shall be payable from the dates of deposit. Therefore, theappeal filed by purchaser deserves to be partly allowed. The interestsshall be payable from the dates of such deposits.

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16 DLF Homes Panchkula Pvt. Ltd. v. DS Dhanda and Ors. (2020) 16 SCC 318 (at para21).

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A22.2 At the same time, we are of the opinion that the interest of 9per cent granted by the Commission is fair and just and we find noreason to interfere in the appeal filed by the Consumer for enhancementof interest.

23. We were informed that the Appellant-Developer deposited aBsum of Rs. 50,000/- in the registry of this Court as per proviso to Section23 of the Act. This amount shall be made over to the Respondent-Consumer, to be adjusted against the final amount payable by theDeveloper to the Consumer.

24. In view of the above, the Civil Appeal No. 6044 of 2019 filedCby the Appellant Developer is dismissed and the appeal filed by theConsumer being Civil Appeal No.7149 of 2019 is allowed in part asindicated above.

25. Parties shall bear their own costs.

DDevika Gujral

(Assisted by : Mahendra Yadav, LCRA)

Appeals disposed of.

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