M/S. IMPERIA STRUCTURES LTD. versus ANIL PATNI AND ANOTHER on 2 November 2020

M/S. IMPERIA STRUCTURES LTD.

v.

ANIL PATNI AND ANOTHER

(Civil Appeal Nos. 3581-3590 of 2020)

NOVEMBER 02, 2020

[UDAY UMESH LALIT AND VINEET SARAN, JJ.]

Consumer Protection Act, 1986 – s.23 – Real Estate(Regulation and Development) Act, 2016 (RERA Act) – ss.18,79and 88 – Applicability and effect of the RERA Act – A housingscheme was launched by appellant in 2011 – The respondents-complainants had booked apartments – The appellant had executedBuilder Buyer Agreement dated 30.11.2013 with each of therespondents – On 01.05.2016, the Real Estate (Regulation andDevelopment) Act, 2016 came into force – A considerable amountwas paid by the respondents for their booked apartments – However,even after four years there were no signs of the project gettingcompleted – In 2017, the respondents filed consumer cases beforethe National Consumer Disputes Redressal Commission – TheCommission concluded that the appellant was deficient in renderingservice and all the complaints were allowed by granting relief ofrefund of the amounts deposited by each of the complainants withsimple interest @ 9% p.a. from the respective dates of deposits withRs. 50,000/- towards costs – Aggreived, the appellant filed appealbefore the Supreme Court – The appellant contended that therespondents were not ‘consumers’ within the meaning of theConsumer Protection Act – Further, once the RERA Act, came intoforce all questions concerning the project including issues relatingto construction and competition thereof, would be under theexclusive control and jurisdiction of the authorities under the RERAAct – The Commission, therefore, ought not to have entertained theconsumer cases – Held: The Commission had concluded that; (i) allthe complainants were ‘consumers’ within the meaning of the Actand that; (ii) there was delay on part of the appellant in completingthe construction within time – The conclusions drawn by the NationalCommission were absolutely correct and do not call for any

A

B

CDEF

G

H

Ainterference – As far as applicability and effect of the RERA Act isconcerned, s.79 of the RERA Act bars jurisdiction of a Civil Courtto entertain any suit or proceeding in respect of any matter whichthe Authority or the adjudicating officer or the Appellate Tribunalis empowered under the RERA Act to determine – It is settled lawthat the proceedings before the National Commission are althoughBjudicial proceedings, but at the same time it is not a Civil Courtwithin the meaning of the provisions of the CPC – Thus, s.79 of theRERA Act does not in any way bar the Commission or forum underthe provisions of the Consumer Protection Act to entertain anycomplaint – Further, s.88 specifies that the provisions of the RERACAct would be in addition to and not in derogation of the provisionsof any other law – Also, s.18 itself specifies that the remedy underthe said section is ‘without prejudice to any other remedy available’– Thus, the parliamentary intent is clear that a choice or discretionis given to the allottee whether he wishes to initiate appropriateproceedings under the Consumer Protection Act or file an applicationDunder the RERA Act – Therefore, all the respondents are entitled toexecute the order passed by the Commission in their favour.

Dismissing the appeals, the Court

HELD : 1. It has consistently been held by this Court thatEthe remedies available under the provisions of the ConsumerProtection Act, 1986 are additional remedies over and above theother remedies including those made available under any specialstatutes; and that the availability of an alternate remedy is no barin entertaining a complaint under the CP Act. [Para 21][405-D-E]

Conclusion

F2. Section 79 of the Real Estate (Regulation andDevelopment) Act, 2016 bars jurisdiction of a Civil Court toentertain any suit or proceeding in respect of any matter whichthe Authority or the adjudicating officer or the Appellate Tribunalis empowered under the RERA Act to determine. Section 88specifies that the provisions of the RERA Act would be in additionGto and not in derogation of the provisions of any other law, whilein terms of Section 89, the provisions of the RERA Act shall haveeffect notwithstanding anything inconsistent contained in anyother law for the time being in force. [Para 25][406-F-H]

H

3. On plain reading of Section 79 of the RERA Act, anallottee described in category (B), who does not fulfil therequirements of being a ‘consumer’, would stand barred frominvoking the jurisdiction of a Civil Court. However, as regardsthe allottees who can be called “consumers” within the meaningof the CP Act, two questions would arise; a) whether the barspecified under Section 79 of the RERA Act would apply toproceedings initiated under the provisions of the CP Act; and b)whether there is anything inconsistent in the provisions of theCP Act with that of the RERA Act. [Para 26][407-A-B]

4. On the strength of the law so declared in Malay KumarGanguli vs. Sukumar Mukherjee, Section 79 of the RERA Act doesnot in any way bar the Commission or Forum under the provisionsof the CP Act to entertain any complaint. [Para 27][407-C-E]

5. Proviso to Section 71(1) of the RERA Act entitles acomplainant who had initiated proceedings under the CP Actbefore the RERA Act came into force, to withdraw the proceedingsunder the CP Act with the permission of the Forum or Commissionand file an appropriate application before the adjudicating officerunder the RERA Act. The proviso thus gives a right or an optionto the concerned complainant but does not statutorily force himto withdraw such complaint nor do the provisions of the RERAAct create any mechanism for transfer of such pendingproceedings to authorities under the RERA Act. As against thatthe mandate in Section 12(4) of the CP Act to the contrary isquite significant. Again, insofar as cases where such proceedingsunder the CP Act are initiated after the provisions of the RERAAct came into force, there is nothing in the RERA Act which barssuch initiation. The absence of bar under Section 79 to theinitiation of proceedings before a fora which cannot be called aCivil Court and express saving under Section 88 of the RERAAct, make the position quite clear. Further, Section 18 itselfspecifies that the remedy under said Section is “without prejudiceto any other remedy available”. Thus, the parliamentary intentis clear that a choice or discretion is given to the allottee whetherhe wishes to initiate appropriate proceedings under the CP Actor file an application under the RERA Act. [Para 28][407-E-H;408-A-B]

AB

C

D

E

F

G

H

AB

C

D

E

F

G

H

A6. This Court may now consider the effect of the registrationof the Project under the RERA Act. In the present case theapartments were booked by the Complainants in 2011-2012 andthe Builder Buyer Agreements were entered into in November,2013. As promised, the construction should have been completedin 42 months. The period had expired well before the ProjectBwas registered under the provisions of the RERA Act. Merelybecause the registration under the RERA Act is valid till31.12.2020 does not mean that the entitlement of the concernedallottees to maintain an action stands deferred. It is relevant tonote that even for the purposes of Section 18, the period has toCbe reckoned in terms of the agreement and not the registration.Condition no. (x) of the letter dated 17.11.2017, issued by theHaryana Authority regarding registration certificate, also entitlesan allottee to withdraw from the project due to discontinuance ofpromoter’s business or promoter fails to give possession of theapartment/plot in accordance with the terms and condition forDsale and makes promoter liable to return the amount with interest.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. [Para33][409-C-F]E

Secretary, Thirumurugan Cooperative AgriculturalCredit Society vs. M. Lalitha (dead) through LRs. andothers (2004) 1 SCC 305 : [2003] 6 Suppl. SCR 659 ;National Seeds Corporation Limited vs. M.Madhusudhan Reddy and another (2012) 2 SCC 506 :F[2012] 2 SCR 1065 ; Virender Jain vs. AlaknandaCooperative Group Housing Society Limited and others(2013) 9 SCC 383 : [2013] 2 SCR 1058 ; MalayKumar Ganguli vs. Dr. Sukumar Mukherjee (2009) 9SCC 221 : [2009] 13 SCR 1 ; Pioneer Urban Landand Infrastructure Limited and another vs. Union ofGIndia and another (2019) 8 SCC 416 : [2019] 10SCR 381 – relied on.

Emaar MGF Ltd and anr. vs. Aftab Singh (2019) 12SCC 751 : [2018] 14 SCR 791 – referred to.

H

M/S. IMPERIA STRUCTURES LTD. v. ANIL PATNI ANDANOTHER

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3581-3590 of 2020.

From the Judgment and Order dated 12.09.2018 of the NationalConsumer Disputes Redressal Commission, New Delhi in ConsumerCase No. 3011, 3012, 3013, 3014, 3015, 3016, 3017, 3018, 3019 & 3020of 2017.

With

Civil Appeal No. 3591 of 2020 (@ Civil Appeal Diary No. 9793 of2019)

Vikas Singh, Sr. Adv. Simranjeet Singh, Gautam Talukdar, Ms.Neha Gupta, Ms. Rhea Dube, Aadhar Nautiyal, Rohit Sharma, RamMohan, Gautam Talukdar, Ms. Priyanjali Singh, Rahul Rathore, KaruneshKumar Shukla, Advs. for the appearing parties.

Respondent–in-person

The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

1. These appeals* under Section 23 of the Consumer ProtectionAct, 1986 (hereinafter referred to as “the CP Act”) are directed againstthe common judgement and order dated 12.09.2018 passed by theNational Consumer Disputes Redressal Commission, New Delhi(hereinafter referred to as “the Commission”) in Consumer CaseNos.3011, 3012, 3013, 3014, 3015, 3016, 3017, 3018, 3019 and 3020 of2017. The relevant facts leading to the filing of the aforesaid ConsumerCases are almost identical and for the present purposes the facts leading *Arising out of Civil Appeal Diary No. 9796 of 2019

A

B

C

D

E

F

G

H

Ato the filing of Consumer Case No.3011 of 2017 are set out in detail andthe appeal arising therefrom is taken as the lead appeal. The connectedappeal* seeks to challenge the judgment and order dated 09.08.2018passed by the Commission in Consumer Case No.1605 of 2017 andraises same issues of fact and law. Delay in filing these appeals iscondoned.B

2. A Housing Scheme called “The ESFERA” in Sector 13C,Gurgaon, Haryana (hereinafter referred to as ‘the Project’) was launchedby the Appellant sometime in 2011 and all the original Complainantsbooked their respective apartments by paying the booking amounts andthereafter each of them executed Builder Buyer Agreement (hereinafterCreferred to as “the Agreement”) with the Appellant.

3. The Respondents in the leading appeal (hereinafter referred toas “the Respondents”) booked Apartment No.1803 on the 18th Floor ofTower No. “C” having super built up area 153.34 Sq. meters (1650 Sq.feet approx.) @ Rs.36530.2 per Sq. meter (Rs.3395/- per Sq. foot).DThe basic price was thus Rs.56,01,750/- to which additional chargessuch as preferential location charges for “corner” “park facing” and for“higher floor” as well as charges for reserve parking, club membershipand development were added; the aggregate price being Rs.76,43,000/.

4. Clauses 11.1 and 11.2 of the Agreement dated 30.11.2013Eentered into by the Respondents dealt with “delay due to reasons beyondthe control of the Developer/Company” and “failure to deliver possessiondue to Government Rules, Orders, Notifications, etc.” respectively.Clause 11.4 of the Agreement was:- “11.4 FAILURE TO DELIVER POSSESSION: REMEDY TOFTHE COMPANY

The intending Allottee(s) agrees that in consequence of theDeveloper/Company abandoning the Scheme or becoming unableto give possession within three years from the date of executionof this Agreement to such extended periods as permitted underGthis Agreement, the Developer/Company shall be entitled toterminate this Agreement whereupon the Developer/Company’sliability shall be limited to the refund of the amounts paid by theIntending Allottee(s) with simple interest @ 9% per annum forthe period such amounts we relying with the Developer/Company H*Arising out of Civil Appeal Diary No.9793 of 2019

and to pay no other compensation whatsoever. However, theDeveloper/Company may, at its sole option and discretion, decidenot to terminate this Agreement in which event the Developer/Company agrees to pay only to the original Intending Allottee(s)and not to anyone else and only in cases other than those providedin Clauses 11.1, 11.2, 11.3 and Clause 41 and subject to theIntending Allottee(s) not being in default under any term of thisAgreement, compensation @ Rs.5/- per sq. ft. equal to Rs.53.8/- Per Sq. Meter of the super area of the said Apartment permonth for the period of such delay beyond three & half years orsuch extended periods as permitted under this Agreement. Theadjustment of such compensation shall be done only at the time ofsettling the final accounts for handing over/conveyancing the saidApartment to the intending Allottee(s) first named in this Agreementand not earlier.”

Clause 41 of the Agreement was as under:- “41. FORCE MAJURE

“The Developer/Company shall not be held responsible or liablefor not performing any of its obligations or undertakings providedfor in this Agreement if such performance is prevented, delayedor hindered by an act of God, fire, flood, explosion, war, riot, terroristacts, sabotage, inability to procure or general shortage of energy,labour, equipment, facilities, materials or supplies, failure oftransportation, strikes, lock outs, action of labour unions or anyother cause (whether similar or dissimilar to the foregoing) notwithin the reasonable control of the Developer/Company.”

5. On 01.05.2016, the Real Estate (Regulation and Development)Act, 2016 (hereinafter referred to as, “the RERA Act”) came into force.

6. Over a period of time the Respondents had paidRs. 63,53,625/- out of the agreed sum of Rs.76,43,000/-. However, evenafter four years there were no signs of the Project getting completed. Inthe circumstances Consumer Case No.3011 of 2017 was preferred bythe Respondents on 11.10.2017 before the Commission submitting, interalia,:- “11. That the complainants regularly visited the site but weresurprised to see that the construction was never in progress. Noone was present on the site to address the queries of the buyers/

AB

C

D

E

F

G

H

A

allotees/purchases including the present complainant. The O.Pdespite taking a substantial amount towards the considerationdeliberately did not construct the towers in which house of thecomplainant was situated. The entire site seems to be anabandoned piece of land with semi constructed structure. Despitea delay of many months, the construction of the apartment hasnot been completed. It can hence be seen that the O.P is deficientin renderings services and after extracting most of the moneyfrom the buyers/allotees/purchases have deliberately stopped theconstruction of the houses.

B

12. That it could be seen that the construction of the residentialunit ‘THE ESFERA’ in which the buyers/allotees/purchasers flatswere booked many months back, with a promise by the O.P. todeliver the same within 42 months were never completed for thereasons best known to the O.P., which clearly shows the ulteriormotive of the O.P. to extract money from the innocent buyersfraudulently and also demonstrates the unfair trade practices andrestrictive trade practices under the ambit of consumer protectionact 1986.

C

D

16. That as per the clause 11.4 of the Buyer’s Agreement, it wasagreed by the O.P. that in case of any delay, the O.P. shall pay toEthe buyers/allotees/purchasers, a compensation at the rate ofRs.5/- per sq. ft. per month for the period of the delay. It could beseen here that the O.P has incorporated the Clause 11.4 in theone sided buyer’s agreement and has offered to pay a meagresum of Rs.5/- per square feet for every month of delay if wecalculate the amount in terms of financial charges, it comes toFapproximate @ 1.4% per annum rate of interest. Even thesecharges are to be paid after 42 months of period that is taken bythe O.P. to construct the houses as per the buyer’s agreement.This shows that the O.P. has found a cheap source of funding thecommercial projects from the hard earned savings and borrowedGmoney of innocent residential apartments/house buyers like thepresent complainants. The O.P is raising funds at the interestrate of mere 1.4% per annum and that too with initial 42 monthsof interest free duration.

E

G

30. That the value of goods/services along with compensationclaimed in the present complaint is above one crore rupees hence H

the complainants are entitled to invoke the pecuniary jurisdictionof this Hon’ble Commission. The present complaint has beenassessed for a sum of Rs.1,16,94,579/- and requisite fee i.e.Rs.5000/- by way of a demand draft payable to “THEREGISTRAR, NCDRC New Delhi” is being paid with thiscomplaint.

32. In view of the above, it is, therefore, most respectfully prayedthat this Hon’ble Commission may kindly be pleaed to:

a.Direct the O.P. to refund the entire amount collected formthe complainants towards the consideration of the Flat alongwith interest @ 18% p.a. on the amount paid by them fromthe date of each deposit of the amount till it is actually returnedto the complaints.

b.Direct the O.P. to pay a sum of Rs.50,000/- (rupees fiftythousand only) to the complainants toward the cost of litigation.

c.Any other order(s) as may be deemed fit and appropriatemay also kindly be passed.”

The other nine Consumer Cases were also filed on the same day.

7. On 17.11.2017, the Project was registered with Haryana RealEstate Regulatory Authority, Panchkula (hereinafter referred to as,“Haryana Authority”). The letter dated 17.11.2017 issued by HaryanaAuthority stated:- “….. Your request for registration of Group Housing Colony beingdeveloped over an area of 60460 Sq. Mtrs. Situated in Sector-37-C, Village Gharoli Khurd and Basai, Gurugram, Haryana withregard to License No.64 of 2011 dated 16.07.2011 issued by theDirector, town and Country Planning Department, Haryana, hasbeen examined vis-à-vis the provisions of the Real Estate(Regulation and Development) Act, 2016 and HRERA Rules, 2017and accordingly a registration certificate is herewith issued withfollowing terms and conditions:- A

B

C

D

E

F

G

H

A(i)The Promoter shall comply with the provisions of the Actand the rules and regulations made there under;

(ii) The Promoter shall deposit seventy percent of the amountto be realized from the allottees by the Promoter in a separateaccount to be maintained in a schedule bank to meetBexclusively the cost of land and construction purpose as perprovision of Section 4 (2) (L) (D);

(iii) The registration shall be valid for a period commencing from17.11.2017 to 31.12.2020;

(iv) The Promoter shall offer to execute and register aCconveyance deed in favour of the allotees or the associationof the allottees, as the case may be, of the apartment, plot orbuilding as the case may be, or on the common areas as perprovision of section 17 of the Act;

(v) The Promoter shall take all the pending approvals fromDvarious competent authorities on time;

(vi) The Promoter shall pay all outstanding payment i.e. landcost, construction cost, ground rent, municipal or other localtaxes, charges for water or electricity, maintenance charges,including mortgage loan and interest on mortgages or otherEencumbrances and such other liabilities payable to competentauthorities, bank and financial institutions which are relatedto the project until he transfers the physical possession ofthe real estate project to the allottees or the associations ofallottees, as the case may be; F(vii) The Promoter shall be responsible for providing andmaintaining the essential services, on reasonable charges,till the taking over of the maintenance of the project by theMunicipal Corporation, Gurugram or any other local authorityAssociation of the Allottees, as the case may be; G(viii) The Promoter shall not accept a sum more than ten percentof the cost of the apartment, plot or building as the case maybe, as an advance payment or an application fee, from aperson without first entering into a written agreement forsale with such person and register the said agreement forsale, under any law for the time being in force;H

(ix) The Promoter shall adhere all the terms and conditions ofAthis registration and license, sanctioned plans and otherpermissions issued by Competent Authorities under theprovision of any other law for the time being in force asapplicable to the project. In case any deficiency in fee isfound at later stage and the same shall be recoverable fromBthe promoter/owner accordingly.

(x) The promoter shall return the amount with interest in case,allotee wishes to withdraw from the project due todiscontinuance of promoter’s business or promoter fails togive possession of the apartment/plot in accordance withCterms and conditions of agreement for sale in terms ofsub-section (4) of Section-19. The promoter shall return theentire amount with interest as well as the compensationpayable. The rate of interest payable by the promoter to theallottee or by the allottee to the promoter, as the case maybe, shall be the State Bank of India highest marginal cost ofDlending rate plus two percent. The promoter shall adherethe provisions of The Real Estate (Regulation andDevelopment) Act, 2016 and its Rules 2017 issued by theState Government.

D

(xi) The promoter shall adopt the model agreement for sale(Annexure-A) of the Haryana Real Estate (Regulation andDevelopment) Rules, 2017 at the time of booking from theprospective allottees.

E

(xii) The Promoter shall, upon receiving his Login Id and passwordunder clause(a) of sub-section (1) or under sub-section 92)of section 5, as the case may be, create his web page on thewebsite of the Authority and enter all details of the proposedproject as provided under sub-section (2) of section 4,including the followings:- F

a)Details of the registration granted by the authority;b)Quarterly up-to-date list of number and type ofapartments for plots, as the case may be, booked; G

c)Quarterly up-to-date the list of number of garagescovered parking lot booked; H

Ad)Quarterly up-to-date the list of approvals taken andthe approvals which are pending subsequent tocommencement certificate; e)quarterly up-to-date status of the project; and f)such other information and documents as may beBspecified by the regulations made by the authority.

(xiii) The Promoter shall be responsible to make available to theallottees, the following information at the time of the bookingand issue of allotment letter:- Ca)Sanctioned plans, layout, along with specifications,approved by the competent authority and otherinformation as prescribed in Rule 14 of 2017 framedunder the provision of the Real Estate (Regulationand Development) Act 2016 and the same shall bedisplayed at the site or such other place as may beDspecified by the regulations made by the Authority.”

8. In its response dated 18.01.2018 to the aforestated ConsumerCase No.3011 of 2017, the Appellant challenged the jurisdiction of theCommission inter alia, on the ground that the apartment having beenbooked for commercial purposes, the Respondents would not come withinEthe definition of “the consumer” under Section 2(d) of the CP Act. Noreference was however made to the fact that the Project had beenregistered under the RERA Act. It was submitted:- “8. That the contents and averments made in para 8 are wrongand denied. It is denied that the date of possession of the unitFwas 30th May, 2017. It is submitted that the respondents hadclearly mentioned the schedule for possession of the saidapartment/Unit was based upon its present plans and estimatesand subject to all just exceptions, contemplates to completethe construction of the said building/said apartment within aperiod of three and half years for the date of execution of thisGagreement unless there is delay or there shall be failure due toreasons beyond the control of the company including Force-Majeure events, delay due to compliance of new rules,regulations, orders or notifications made/issued by governmentor any other authorities with respect to construction at theHproject site.

11. That the contents and averments made in Para 11 are wrongand denied. It is pertinent to mention here that the constructionof the Tower in which the Unit of the Complainant was allottedis in full Swing and is nearing possession. The allegationslevelled by the Complainant are concocted & baseless.

9. In their replication, the Respondents submitted, inter alia,:- “….. the buyer’s agreement was a fixed set of papers, whichwas asked to be signed by the complainant and no modificationwas entertained by the O.P. On request to change the onesided clauses, it was told that the buyer’s agreement has to besigned as it is and in case it is not acceptable than the allotmentwill stand cancelled and earnest money will be forfeited.”

10. Consumer Case No.3011 of 2017 was allowed by theCommission by its judgement and order dated 12.09.2018. It wasobserved:- “10. It is pertinent to note that the Developer has not filed anyevidence to support his contention that the delay occurred due toforce majeure events. In fact demonetization, non-availability ofcontractual labour, delay in notifying approvals cannot be construedto be force majeure events from any angle.

11. Learned Counsel for the Developer vehemently argued thatthe Complainants were offered alternative accommodation videletter dated 03.04.2017 which was not accepted by them. Thesaid letter is reproduced as hereunder:- “Be that as it may, in view of your allegations of delay whichwe deny, we hereby offer that till we complete construction ofyour subject matter flat we shall arrange alternativeaccommodation/flat for you in Group Housing Colony named“Takshila Heights” situated at Sector-37C, Gurgaon on lease/rent with immediate effect. We will bear the rent of alternativeaccommodation/flat at “Takshila Heights”. However, you shallhave to pay the common area maintenance charges and otheruser based charges like electricity, etc., which you would havedone for your flat in “Esfera” as well.” (Emphasis supplied).

A

B

C

D

E

F

G

A12. It is significant to mention that in the afore-noted letter thereis an admission by the Developer that the construction is still notcompleted. Additionally, even the specific date of delivery ofpossession has not been mentioned anywhere either in the WrittenVersion or in the Affidavit or even in the letter dated 03.04.2017which the Counsel is relying upon.”B

Concluding that the Appellant was deficient in rendering service,the Commission granted relief to the Respondents in following terms:- “14. Keeping in view the admitted incomplete construction, thefact that some of the Complainants have also taken bank loansCand are paying EMIs and considering the stipulation provided inClause 11.4, this Complaint is partly allowed directing theDeveloper to refund the amounts deposited with simple interest@ 9% p.a. from the respective dates of deposits till the date ofrealization together with costs of Rs.50,000/- to be paid to each ofthe Complainants. The directions are to be complied withing foursDweeks from the date of receipt of a copy of the order, failingwhich, the amount shall attract interest @ 12% p.a. for the saidperiod.”

11. Similarly, all other complaints were allowed by the Commissiongranting relief of refund of the amounts deposited by each of theEComplainants with simple interest @ 9% per annum from the respectivedates of deposits alongwith Rs.50,000/- towards costs. It was alsodirected that the amounts be deposited within four weeks, failing whichthe amounts would carry interest @ 12% per annum.

12. The Appellant being aggrieved preferred the instant appealsFon 14.03.2019. By way of Additional Documents, a copy of the letterdated 17.11.2017 was placed on record. An order passed by HaryanaAuthority, Gurugram on 17.01.2019 in a complaint preferred by oneHimanshu Giri was also placed on record. The directions issued in saidorder were to the following effect:-

G“27. After taking into consideration all the material facts asadduced and produced by both the parties, the authority exercisingpowers vested in it under section 37 of the Real Estate (Regulationand Development) Act, 2016 hereby issues the following directionsto the respondent in the interest of justice and fair play:

H

i. The respondent is directed to provide delay possession chargesat the prescribed rate of 10.75% per annum for every month ofdelay w.e.f. 15.9.2016 as per the provisions of Section 18(1) ofthe Real Estate (Regulation and Development) Act, 2016.

ii. The arrears of interest accrued so far shall be paid to thecomplainant within 90 days from the date of this order and thereaftermonthly payment of interest till handing over the possession shallbe paid before 10th of subsequent month.”

13. The appeal memo also did not make any reference to the factthat the Project had been registered under the RERA Act. In the leadingappeal, following assertions were made in the list of dates and events:- “2011-2017The Appellant was unable to hand over thepossession to the Respondents within the stipulatetime as stipulated in Clause 10.1 due to reasonsbeyond control of the Appellant viz., due to severeshortage of contractual labourers and delay causedin obtaining statutory requisite permissions forcarrying on the construction of said flats, failed todeliver possession of the subject flats to theRespondents within the prescribed time limit.

One of the grounds raised in the appeal memo was as under:- “C. Because the Hon’ble Commission failed to appreciatethat the Policy of Demonetization introduced by the Governmentof India constituted as an event of Force Majeure since as aconsequence of the said event, numerous persons includingthe Appellant suffered shortage of cash which resulted in delayin delivering possession to the Respondent. It is humblysubmitted that the shortage of cash ensuing as a result of theDemonitization policy resulted in the stopping of work sincethe process of construction requires many payments to be madein cash on a day to day basis, for example, wages paid to dailywage workers, payments made against delivery of constructionmaterials, etc.”

14. After issuance of notice on 05.04.2019, it was submitted bythe Respondents that the Appellant had partially refunded the amounts A

B

C

D

EF

G

H

Ain terms of the directions of the Commission. Following details indicatethat in four out of ten cases, partial refund was made.

“

B

C

D

E

”

Refund of Rs.10,00,000/- to the Respondents, was made onF27.03.2019 i.e. even after filing of the leading appeal.

15. Mr. Vikas Singh, learned Senior Advocate for the Appellantsubmitted inter alia:- a)The Appellant had completed Phase-I of theProject well-in-time and Phase-II of the ProjectGconcerning about 437 allottees was the matter inissue. Out of these 437 allottees, only in 59 casescomplaints were filed under the CP Act, while Mr.Himanshu Giri had approached authorities under theRERA Act. A majority of the allottees had thusHreposed faith in the Appellant.

b)The Appellant had offered alternativeaccommodation to all the allottees. But the offerwas rejected by all the Complainants which wasindicative that the apartments were booked forinvestment purposes.

c) The Complainants were not “Consumers”within the meaning of the CP Act as the apartmentswere booked merely for profit motive.

d)Once the RERA Act came into force, allquestions concerning the Project including issuesrelating to construction and completion thereof, wouldbe under the exclusive control and jurisdiction ofthe authorities under the RERA Act. TheCommission, therefore, ought not to haveentertained the Consumer Cases.

e)The Registration Certificate dated 17.11.2017being valid upto 31.12.2020, the Appellant couldnot be said to have delayed the construction andconsequently, there could be no finding that therewas deficiency on part of the Appellant.

f)The order passed in the case of Himanshu Girihad directed payment of interest @ 10.75% perannum without issuing any direction for refund ofmoney. The approach so adopted would beconducive to completion of construction and at thesame time would balance the interest of the allottees.

g)Considering the provisions of the RERA Actand the fact that the registration being valid upto31.12.2020, the orders passed by the Commissionbe set aside and instead the Complainants be grantedinterest @ 10.75% p.a. on the amounts deposited;whereby the Project would be completed withoutputting the Appellant under any financial strain andat the same time the relief in the nature of intereston investment would also be accruable to theallottees.

A

B

C

D

E

F

G

H

A16. Ms. Priyanjali Singh, learned Advocate for the Respondentsas well as for some of the other Complainants submitted:- a)All the Complainants had purchased only oneresidential apartment each for self-use. They hadtaken home loans, except the Complainant inConsumer Case No.3020 of 2017 who after hisretirement as Group Captain from the Indian AirForce had used all his retirement dues to book theapartment. Therefore, the issue whether theComplainants satisfied the requirements of being“Consumers” under the provisions of the CP Actwas rightly decided in favour of the Complainants.

B

C

b)The question whether the delay occurred dueto force majeure events was also rightly answeredin favour of the Complainants and no reasonableexplanation was available on record to dislodge thatfinding.

D

c)In the backdrop of these findings, theCommission was justified in accepting the claim ofthe Complainants. In fact, the award of interest @9% per annum was at a lower level.

E

d)At no stage, any plea was taken before theCommission that the Project was registered underthe RERA Act or about the effect of the RERAAct. No such plea was taken even in the appealmemo. Consequently, it would not be open to theAppellant to raise any submissions about theapplicability of the RERA Act.

F

e)In any case, as construed by this Courtconsistently, the remedy afforded by the CP Actwould be an additional remedy to a consumer andsaid legal position remained unchanged even afterthe enactment of the RERA Act.

G

17. Three Complainants viz. (a) Chandra Shekhar; (b) RajatVerma; and (c) Krishan Kumar appeared in person and advancedsubmissions. It was submitted, inter alia, that the decision of the H

Commission did not call for any interference and that they be refundedthe entire amount with 12% interest instead of 9% as awarded by theCommission.

18. At the outset, we must deal with two factual issues. It wasconcluded by the Commission that; (i) all the Complainants were‘Consumers’ within the meaning of the Act and that; (ii) there wasdelay on part of the Appellant in completing the construction within time.The stand taken by the Appellant at various stages, itself acknowledgedthat there was delay but the Appellant tried to rely on certain events asmentioned in ground (c) quoted hereinabove. In our view, the conclusionsdrawn by the National Commission in relation to these issues areabsolutely correct and do not call for any interference.

19. Before we deal with the issues about the applicability andeffect of the RERA Act as well as the effect of registration of theProject under the RERA Act, the relevant provisions of the CP Act andthe RERA Act may be extracted:- A]The Consumer Protection Act, 1986

The CP Act was enacted, inter alia, “to provide for betterprotection of the interest of the consumer”; to promote and protectthe rights of consumers such as “the rights to seek redressal againstunfair trade practices or unscrupulous exploitation of consumers”.Sections 3, 12(4) and 24 were to the following effect: - “3. Act not in derogation of any other law.—The provisionsof this Act shall be in addition to and not in derogation of theprovisions of any other law for the time being in force.

12. Manner in which complaint shall be made. ….

(1) … … …

(2) … … …

(3) … … …

(4) Where a complaint is allowed to be proceeded with undersub-section (3), the District Forum may proceed with the complaintin the manner provided under this Act:

Provided that where a complaint has been admitted by the DistrictForum, it shall not be transferred to any other court or tribunal or AB

C

D

E

F

G

H

[2020] 12 S.C.R.

A

any authority set up by or under any other law for the time beingin force.

………

24. Finality of orders. — Every order of a District Forum, theState Commission or the National Commission shall, if no appealBhas been preferred against such order under the provisions of thisAct, be final.”

B]The Real Estate (Regulation and Development)Act, 2016

CSections 2(d), 2(zg), 2(zj) and 2(zk) define expressions “Allottee”,“Person, “Project” and “Promoter” respectively. Sections 3, 4, 5, 18, 19,22, 46, 71, 79, 88 and 89 of the RERA Act are as under:- “3. Prior registration of real estate project with Real EstateRegulatory Authority D

(1) No promoter shall advertise, market, book, sell or offer forsale, or invite persons to purchase in any manner any plot, apartmentor building, as the case may be, in any real estate project or partof it, in any planning area, without registering the real estate projectwith the Real Estate Regulatory Authority established under thisAct:

E

PROVIDED that projects that are ongoing on the date ofcommencement of this Act and for which the completion certificatehas not been issued, the promoter shall make an application to theAuthority for registration of the said project within a period ofthree months from the date of commencement of this Act:

F

PROVIDED FURTHER that if the Authority thinks necessary,in the interest of allottees, for projects which are developed beyondthe planning area but with the requisite permission of the localauthority, it may, by order, direct the promoter of such project toregister with the Authority, and the provisions of this Act or theGrules and regulations made thereunder, shall apply to such projectsfrom that stage of registration.

(2) Notwithstanding anything contained in sub-section (1), noregistration of the real estate project shall be required—

(a) where the area of land proposed to be developed does notexceed five hundred square meters or the number ofapartments proposed to be developed does not exceedeight inclusive of all phases: Provided that, if the appropriateGovernment considers it necessary, it may, reduce thethreshold below five hundred square meters or eightapartments, as the case may be, inclusive of all phases,for exemption from registration under this Act; (b) where the promoter has received completion certificatefor a real estate project prior to commencement of thisAct;

(c) for the purpose of renovation or repair or re-developmentwhich does not involve marketing, advertising selling ornew allotment of any apartment, plot or building, as thecase may be, under the real estate project.

Explanation.—For the purpose of this section, where the real estateproject is to be developed in phases, every such phase shall beconsidered a stand alone real estate project, and the promotershall obtain registration under this Act for each phase separately.

4. Application for registration of real estate projects

(1) Every promoter shall make an application to the Authority forregistration of the real estate project in such form, manner, withinsuch time and accompanied by such fee as may be prescribed.

(2) The promoter shall enclose the following documents alongwith the application referred to in sub-section (1), namely:—

(a) a brief details of his enterprise including its name, registeredaddress, type of enterprise (proprietorship, societies,partnership, companies, competent authority), and theparticulars of registration, and the names and photographsof the promoter; (b) a brief detail of the projects launched by him, in the pastfive years, whether already completed or being developed,as the case may be, including the current status of thesaid projects, any delay in its completion, details of casespending, details of type of land and payments pending; A

B

C

D

E

F

G

H

A(c) an authenticated copy of the approvals andcommencement certificate from the competent authorityobtained in accordance with the laws as may be applicablefor the real estate project mentioned in the application,and where the project is proposed to be developed inphases, an authenticated copy of the approvals andBcommencement certificate from the competent authorityfor each of such phases; (d) the sanctioned plan, layout plan and specifications of theproposed project or the phase thereof, and the wholeproject as sanctioned by the competent authority; C

(e) the plan of development works to be executed in theproposed project and the proposed facilities to be providedthereof including fire fighting facilities, drinking waterfacilities, emergency evacuation services, use ofrenewable energy; D

(f) the location details of the project, with clear demarcationof land dedicated for the project along with its boundariesincluding the latitude and longitude of the end points ofthe project; (g) proforma of the allotment letter, agreement for sale, andthe conveyance deed proposed to be signed with theallottees; E

(h) the number, type and the carpet area of apartments forsale in the project along with the area of the exclusiveFbalcony or verandah areas and the exclusive open terraceareas apartment with the apartment, if any;

(i) the number and areas of garage for sale in the project; (j)the names and addresses of his real estate agents, if any,for the proposed project; G

(k) the names and addresses of the contractors, architect,structural engineer, if any and other persons concernedwith the development of the proposed project;

(l) a declaration, supported by an affidavit, which shall besigned by the promoter or any person authorised by theHpromoter, stating:—

(A)that he has a legal title to the land on which theAdevelopment is proposed along with legally validdocuments with authentication of such title, if suchland is owned by another person;

(B)that the land is free from all encumbrances, or asthe case may be details of the encumbrances onBsuch land including any rights, title, interest or nameof any party in or over such land along with details;

(C)the time period within which he undertakes tocomplete the project or phase thereof, as the casemay be; C

(D)that seventy per cent. of the amounts realised forthe real estate project from the allottees, from timeto time, shall be deposited in a separate account tobe maintained in a scheduled bank to cover the costof construction and the land cost and shall be usedonly for that purpose: Provided that the promotershall withdraw the amounts from the separateaccount, to cover the cost of the project, inproportion to the percentage of completion of theproject: Provided further that the amounts from theseparate account shall be withdrawn by thepromoter after it is certified by an engineer, anarchitect and a chartered accountant in practicethat the withdrawal is in proportion to the percentageof completion of the project: Provided also that thepromoter shall get his accounts audited within sixmonths after the end of every financial year by achartered accountant in practice, and shall producea statement of accounts duly certified and signedby such chartered accountant and it shall be verifiedduring the audit that the amounts collected for aparticular project have been utilised for the projectand the withdrawal has been in compliance withthe proportion to the percentage of completion ofthe project. Explanation.— For the purpose of thisclause, the term “schedule bank” means a bank D

E

F

G

H

A

B

C

D

E

F

G

H

included in the Second Schduled to the ReserveBank of India Act, 1934; (E)that he shall take all the pending approvals on time,from the competent authorities; (F)that he has furnished such other documents as maybe prescribed by the rules or regulations made underthis Act; and (m) such other information anddocuments as may be prescribed.

(3) The Authority shall operationalise a web based online systemfor submitting applications for registration of projects within aperiod of one year from the date of its establishment.

5. Grant of registration

(1) On receipt of the application under sub-section (1) of section4, the Authority shall within a period of thirty days.

(a) grant registration subject to the provisions of this Act andthe rules and regulations made thereunder, and provide aregistration number, including a Login Id and passwordto the applicant for accessing the website of the Authorityand to create his web page and to fill therein the detailsof the proposed project; or (b)reject the application for reasons to be recorded in writing,if such application does not conform to the provisions ofthis Act or the rules or regulations made thereunder:

PROVIDED that no application shall be rejected unless theapplicant has been given an opportunity of being heard in the matter.

(2) If the Authority fails to grant the registration or reject theapplication, as the case may be, as provided under sub-section(1), the project shall be deemed to have been registered, and theAuthority shall within a period of seven days of the expiry of thesaid period of thirty days specified under sub-section (1), providea registration number and a Login Id and password to the promoterfor accessing the website of the Authority and to create his webpage and to fill therein the details of the proposed project.

(3) The registration granted under this section shall be valid for aperiod declared by the promoter under sub-clause (C) of clause

(1) of sub-section (2) of section 4 for completion of the project orphase thereof, as the case may be.

18. Return of amount and compensation

(1) If the promoter fails to complete or is unable to give possessionof an apartment, plot or building,—

(a) in accordance with the terms of the agreement for saleor, as the case may be, duly completed by the date specifiedtherein; or (b)due to discontinuance of his business as a developer onaccount of suspension or revocation of the registrationunder this Act or for any other reason, he shall be liable on demand to the allottees, in case the allotteewishes to withdraw from the project, without prejudice to anyother remedy available, to return the amount received by him inrespect of that apartment, plot, building, as the case may be, withinterest at such rate as may be prescribed in this behalf includingcompensation in the manner as provided under this Act:

PROVIDED that where an allottee does not intend to withdrawfrom the project, he shall be paid, by the promoter, interest forevery month of delay, till the handing over of the possession, atsuch rate as may be prescribed.

(2) The promoter shall compensate the allottees in case of anyloss caused to him due to defective title of the land, on which theproject is being developed or has been developed, in the manneras provided under this Act, and the claim for compensation underthis subsection shall not be barred by limitation provided underany law for the time being in force.

(3) If the promoter fails to discharge any other obligations imposedon him under this Act or the rules or regulations made thereunderor in accordance with the terms and conditions of the agreementfor sale, he shall be liable to pay such compensation to the allottees,in the manner as provided under this Act.

19. Rights and duties of allottees

(1) The allottee shall be entitled to obtain the information relatingto sanctioned plans, layout plans along with the specifications, A

B

C

D

E

F

G

H

A

approved by the competent authority and such other informationas provided in this Act or the rules and regulations made thereunderor the agreement for sale signed with the promoter.

(2) The allottee shall be entitled to know stage-wise time scheduleof completion of the project, including the provisions for water,sanitation, electricity and other amenities and services as agreedto between the promoter and the allottee in accordance with theterms and conditions of the agreement for sale.

B

(3) The allottee shall be entitled to claim the possession ofapartment, plot or building, as the case may be, and the associationof allottees shall be entitled to claim the possession of the commonareas, as per the declaration given by the promoter under sub-clause (C) of clause (I) of sub-section (2) of section 4.

C

(4) The allottee shall be entitled to claim the refund of amountpaid along with interest at such rate as may be prescribed andDcompensation in the manner as provided under this Act, from thepromoter, if the promoter fails to comply or is unable to givepossession of the apartment, plot or building, as the case may be,in accordance with the terms of agreement for sale or due todiscontinuance of his business as a developer on account ofsuspension or revocation of his registration under the provisionsEof this Act or the rules or regulations made thereunder.

D

(5) The allottee shall be entitled to have the necessary documentsand plans, including that of common areas, after handing over thephysical possession of the apartment or plot or building as thecase may be, by the promoter.

F

(6) Every allottee, who has entered into an agreement for sale totake an apartment, plot or building as the case may be, undersection 13, shall be responsible to make necessary payments inthe manner and within the time as specified in the said agreementfor sale and shall pay at the proper time and place, the share ofGthe registration charges, municipal taxes, water and electricitycharges, maintenance charges, ground rent, and other charges, ifany.

(7) The allottee shall be liable to pay interest, at such rate as maybe prescribed, for any delay in payment towards any amount orHcharges to be paid under sub-section (6).

(8) The obligations of the allottee under sub-section (6) and theliability towards interest under sub-section (7) may be reducedwhen mutually agreed to between the promoter and such allottee.

(9) Every allottee of the apartment, plot or building as the casemay be, shall participate towards the formation of an associationor society or cooperative society of the allottees, or a federationof the same.

(10) Every allottee shall take physical possession of the apartment,plot or building as the case may be, within a period of two monthsof the occupancy certificate issued for the said apartment, plot orbuilding, as the case may be.

(11) Every allottee shall participate towards registration of theconveyance deed of the apartment, plot or building, as the casemay be, as provided under sub-section (1) of section 17 of thisAct.

22. Qualifications of Chairperson and Members ofAuthority.- The Chairperson and other Members of the Authority shall beappointed by the appropriate Government on the recommendationsof a Selection Committee consisting of the Chief Justice of theHigh Court or his nominee, the Secretary of the Department dealingwith Housing and the Law Secretary, in such manner as may beprescribed, from amongst persons having adequate knowledge ofand professional experience of at-least twenty years in case ofthe Chairperson and fifteen years in the case of the Members inurban development, housing, real estate development,infrastructure, economics, technical experts from relevant fields,planning, law, commerce, accountancy, industry, management,social service, public affairs or administration:

Provided that a person who is, or has been, in the service of theState Government shall not be appointed as a Chairperson unlesssuch person has held the post of Additional Secretary to the CentralGovernment or any equivalent post in the Central Government orState Government:

Provided further that a person who is, or has been, in the serviceof the State Government shall not be appointed as a member unless A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

such person has held the post of Secretary to the State Governmentor any equivalent post in the State Government or CentralGovernment.

46. Qualifications for appointment of Chairperson andMembers.-

1) A person shall not be qualified for appointment as theChairperson or a Member of the Appellate Tribunal unless he,—

(a) in the case of Chairperson, is or has been a Judge of aHigh Court; and (b) in the case of a Judicial Member he has held a judicialoffice in the territory of India for at least fifteen years or hasbeen a member of the Indian Legal Service and has held thepost of Additional Secretary of that service or any equivalentpost, or has been an advocate for at least twenty years withexperience in dealing with real estate matters; and

(c) in the case of a Technical or Administrative Member, he isa person who is well-versed in the field of urban development,housing, real estate development, infrastructure, economics,planning, law, commerce, accountancy, industry, management,public affairs or administration and possesses experience of atleast twenty years in the field or who has held the post in theCentral Government or a State Government equivalent to thepost of Additional Secretary to the Government of India or anequivalent post in the Central Government or an equivalentpost in the State Government.

(2) The Chairperson of the Appellate Tribunal shall be appointedby the appropriate Government in consultation with the ChiefJustice of High Court or his nominee.

(3) The Judicial Members and Technical or AdministrativeMembers of the Appellate Tribunal shall be appointed by theappropriate Government on the recommendations of a SelectionCommittee consisting of the Chief Justice of the High Court orhis nominee, the Secretary of the Department handling Housingand the Law Secretary and in such manner as may be prescribed.

71. Power to adjudicate

(1) For the purpose of adjudging compensation under sections 12,14, 18 and section 19, the Authority shall appoint in consultationwith the appropriate Government one or more judicial officer asdeemed necessary, who is or has been a District Judge to be anadjudicating officer for holding an inquiry in the prescribed manner,after giving any person concerned a reasonable opportunity ofbeing heard:

PROVIDED that any person whose complaint in respect ofmatters covered under sections 12, 14, 18 and section 19 is pendingbefore the Consumer Disputes Redressal Forum or the ConsumerDisputes Redressal Commission or the National ConsumerRedressal Commission, established under section 9 of theConsumer Protection Act, 1986, on or before the commencementof this Act, he may, with the permission of such Forum orCommission, as the case may be, withdraw the complaint pendingbefore it and file an application before the adjudicating officerunder this Act.

(2) The application for adjudging compensation under sub-section(1), shall be dealt with by the adjudicating officer as expeditiouslyas possible and dispose of the same within a period of sixty daysfrom the date of receipt of the application:

PROVIDED that where any such application could not be disposedof within the said period of sixty days, the adjudicating officershall record his reasons in writing for not disposing of the applicationwithin that period.

(3) While holding an inquiry the adjudicating officer shall havepower to summon and enforce the attendance of any personacquainted with the facts and circumstances of the case to giveevidence or to produce any document which in the opinion of theadjudicating officer, may be useful for or relevant to the subjectmatter of the inquiry and if, on such inquiry, he is satisfied that theperson has failed to comply with the provisions of any of thesections specified in sub-section (1), he may direct to pay suchcompensation or interest, as the case any be, as he thinks fit inaccordance with the provisions of any of those sections.

A

B

C

D

E

F

G

H

A79. Bar of jurisdiction

No civil court shall have jurisdiction to entertain any suit orproceeding in respect of any matter which the Authority or theadjudicating officer or the Appellate Tribunal is empowered by orunder this Act to determine and no injunction shall be granted byBany court or other authority in respect of any action taken or to betaken in pursuance of any power conferred by or under this Act.

88. Application of other laws not barred The provisions of this Act shall be in addition to, and not inderogation of, the provisions of any other law for the time being inCforce.

89. Act to have overriding effect

The provisions of this Act shall have effect, notwithstandinganything inconsistent therewith contained in any other law for theDtime being in force.”

20. The question whether the remedies available to the consumersunder the provisions of the CP Act would be additional remedies, wasconsidered by this Court in some cases, the notable cases being:-

i) In Secretary, Thirumurugan Cooperative Agricultural CreditESociety vs. M. Lalitha (dead) through LRs. and others*, thisCourt observed:- “11. From the Statement of Objects and Reasons and thescheme of the 1986 Act, it is apparent that the main objectiveof the Act is to provide for better protection of the interest ofFthe consumer and for that purpose to provide for betterredressal, mechanism through which cheaper, easier, expeditiousand effective redressal is made available to consumers. Toserve the purpose of the Act, various quasi-judicial forums areset up at the district, State and national level with wide rangeof powers vested in them. These quasi-judicial forums,Gobserving the principles of natural justice, are empowered togive relief of a specific nature and to award, whereverappropriate, compensation to the consumers and to imposepenalties for non-compliance with their orders.

12. As per Section 3 of the Act, as already stated above, theprovisions of the Act shall be in addition to and not in derogationof any other provisions of any other law for the time being inforce. Having due regard to the scheme of the Act and purposesought to be achieved to protect the interest of the consumersbetter, the provisions are to be interpreted broadly, positivelyand purposefully in the context of the present case to givemeaning to additional/extended jurisdiction, particularly whenSection 3 seeks to provide remedy under the Act in addition toother remedies provided under other Acts unless there is aclear bar.”

The issue in this case was whether in the face of Section 156 ofthe Tamil Nadu Cooperative Societies Act, 1983 the concerned personscould avail remedies under the CP Act. Interpreting Section 3 of the CPAct, it was held that the remedy provided under the CP Act would be inaddition to the remedies provided under the other Acts.

ii) In National Seeds Corporation Limited vs. M. MadhusudhanReddy and another*, it was observed:-

“57. It can thus be said that in the context of farmers/growersand other consumers of seeds, the Seeds Act is a speciallegislation insofar as the provisions contained therein ensurethat those engaged in agriculture and horticulture get qualityseeds and any person who violates the provisions of the Actand/or the Rules is brought before the law and punished.However, there is no provision in that Act and the Rules framedthereunder for compensating the farmers, etc. who may sufferadversely due to loss of crop or deficient yield on account ofdefective seeds supplied by a person authorised to sell theseeds. That apart, there is nothing in the Seeds Act and theRules which may give an indication that the provisions of theConsumer Protection Act are not available to the farmers whoare otherwise covered by the wide definition of “consumer”under Section 2(1)(d) of the Consumer Protection Act. As amatter of fact, any attempt to exclude the farmers from theambit of the Consumer Protection Act by implication will makethat Act vulnerable to an attack of unconstitutionality on the AB

C

D

EF

G

A

ground of discrimination and there is no reason why theprovisions of the Consumer Protection Act should be sointerpreted.

…

…

…

62. Since the farmers/growers purchased seeds by paying aBprice to the appellant, they would certainly fall within the ambitof Section 2(1)(d)(i) of the Consumer Protection Act and thereis no reason to deny them the remedies which are available toother consumers of goods and services.”

In this case the provisions of the CP Act and those under theCSeeds Act, 1966 were considered.

iii) In Virender Jain vs. Alaknanda Cooperative Group HousingSociety Limited and others*, it was observed by this Court asunder:- D“13. The other question which needs to be considered iswhether the District Forum should not have entertained thecomplaints filed by the appellants and directed them to availthe statutory remedies available under the Cooperative SocietiesAct. Shri Neeraj Jain vehemently argued that the forumsconstituted under the Act cannot grant relief to the appellantsEbecause the action taken by Respondent 1 was approved bythe authorities constituted under the Cooperative Societies Act,who were not impleaded as parties in the complaints.

D

14. In our view, there is no merit in the submission of the learnedSenior Counsel. In the complaints filed by them, the appellantsFhad primarily challenged the action of Respondent 1 to refundthe amounts deposited by them and thereby extinguished theirentitlement to get the flats. Therefore, the mere fact that theaction taken by Respondent 1 was approved by the AssistantRegistrar, Cooperative Societies and higher authorities, cannotdeprive the appellants of their legitimate right to seek remedyGunder the Act, which is in addition to the other remedies availableto them under the Cooperative Societies Act. Law on this issuemust be treated as settled by the judgments of this Court inThirumurugan Coop. Agricultural Credit Society v. M.

G

H*(2013) 9 SCC 383

Lalitha[3], Kishore Lal v. ESI Corpn.* and National SeedsCorpn. Ltd. v. M. Madhusudhan Reddy[2].

15. In the last mentioned judgment, National Seeds Corpn.Case[4], this Court referred to the earlier judgments in Fair AirEngineers (P) Ltd. v. N.K. Modi*, Thirumurugan Coop.Agricultural Credit Society v. M. Lalitha[3], Skypak CouriersLtd. v. Tata Chemicals Ltd.* and Trans MediterraneanAirways v. Universal Exports* and held that the remedyavailable under the Act is in addition to the remedies availableunder other statutes and the availability of alternative remediesis not a bar to the entertaining of a complaint filed under theAct.”

In this case the statutory remedies available under the HaryanaCooperative Societies Act, 1984 as against those under the CP Act wasthe matter in issue.

21. It has consistently been held by this Court that the remediesavailable under the provisions of the CP Act are additional remediesover and above the other remedies including those made available underany special statutes; and that the availability of an alternate remedy is nobar in entertaining a complaint under the CP Act.

22. Before we consider whether the provisions of the RERA Acthave made any change in the legal position stated in the precedingparagraph, we may note that an allottee placed in circumstances similarto that of the Complainants, could have initiated following proceedingsbefore the RERA Act came into force.

A)If he satisfied the requirements of being a “consumer” underthe CP Act, he could have initiated proceedings under theCP 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:- *(2007) 4 SCC 579*(1996) 6 SCC 385*(2000) 5 SCC 294*(2011) 10 SCC 316

A

B

C

D

E

F

G

H

A

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 LtdBand anr. Vs. Aftab Singh*, he could still choose toproceed under the CP Act.

23. In terms of Section 18 of the RERA Act, if a promoter fails tocomplete or is unable to give possession of an apartment duly completedby the date specified in the agreement, the Promoter would be liable, onCdemand, to return the amount received by him in respect of that apartmentif the allottee wishes to withdraw from the Project. Such right of anallottee is specifically made “without prejudice to any other remedyavailable to him”. The right so given to the allottee is unqualified and ifavailed, the money deposited by the allottee has to be refunded withinterest at such rate as may be prescribed. The proviso to Section 18(1)Dcontemplates a situation where the allottee does not intend to withdrawfrom the Project. In that case he is entitled to and must be paid interestfor every month of delay till the handing over of the possession. It isupto the allottee to proceed either under Section 18(1) or under provisoto Section 18(1). The case of Himanshu Giri came under the latterEcategory. The RERA Act thus definitely provides a remedy to an allotteewho wishes to withdraw from the Project or claim return on hisinvestment.

24. It is, therefore, required to be considered whether the remedyso provided under the RERA Act to an allottee is the only and exclusiveFmodality to raise a grievance and whether the provisions of the RERAAct bar consideration of the grievance of an allottee by other fora.

25. Section 79 of the RERA Act bars jurisdiction of a Civil Courtto entertain any suit or proceeding in respect of any matter which theAuthority or the adjudicating officer or the Appellate Tribunal isempowered under the RERA Act to determine. Section 88 specifiesGthat the provisions of the RERA Act would be in addition to and not inderogation of the provisions of any other law, while in terms of Section89, the provisions of the RERA Act shall have effect notwithstandinganything inconsistent contained in any other law for the time being inforce.H*(2019) 12 SCC 751

26. On plain reading of Section 79 of the RERA Act, an allotteedescribed in category (B) stated in paragraph 22 hereinabove, wouldstand barred from invoking the jurisdiction of a Civil Court. However,as regards the allottees who can be called “consumers” within themeaning of the CP Act, two questions would arise; a) whether the barspecified under Section 79 of the RERA Act would apply to proceedingsinitiated under the provisions of the CP Act; and b) whether there isanything inconsistent in the provisions of the CP Act with that of theRERA Act.

27. In Malay Kumar Ganguli vs. Dr. Sukumar Mukherjee*, itwas held by this Court:- “The proceedings before the National Commission are althoughjudicial proceedings, but at the same time it is not a civil courtwithin the meaning of the provisions of the Code of Civil Procedure.It may have all the trappings of the civil court but yet it cannot becalled a civil court. (See Bharat Bank Ltd. V. Employees* andNahar Industrial Enterprises Ltd. vs. Hong Kong & ShanghaiBanking Corpn*.

On the strength of the law so declared, Section 79 of the RERAAct does not in any way bar the Commission or Forum under theprovisions of the CP Act to entertain any complaint.

28. Proviso to Section 71(1) of the RERA Act entitles a complainantwho had initiated proceedings under the CP Act before the RERA Actcame into force, to withdraw the proceedings under the CP Act with thepermission of the Forum or Commission and file an appropriate applicationbefore the adjudicating officer under the RERA Act. The proviso thusgives a right or an option to the concerned complainant but does notstatutorily force him to withdraw such complaint nor do the provisions ofthe RERA Act create any mechanism for transfer of such pendingproceedings to authorities under the RERA Act. As against that themandate in Section 12(4) of the CP Act to the contrary is quite significant.

Again, insofar as cases where such proceedings under the CPAct are initiated after the provisions of the RERA Act came into force,there is nothing in the RERA Act which bars such initiation. The absence *(2009) 9 SCC 221*AIR 1950 SC 188 : 1950 SCR 459*(2009) 6 SCC 635

A

B

C

D

E

F

G

H

Aof bar under Section 79 to the initiation of proceedings before a forawhich cannot be called a Civil Court and express saving under Section88 of the RERA Act, make the position quite clear. Further, Section 18itself specifies that the remedy under said Section is “without prejudiceto any other remedy available”. Thus, the parliamentary intent is clearthat a choice or discretion is given to the allottee whether he wishes toBinitiate appropriate proceedings under the CP Act or file an applicationunder the RERA Act.

29. It was, however, urged that going by the objective or thepurpose for which the RERA Act was enacted and considering thespecial expertise and the qualifications of the Chairpersons and MembersCof the Authority (Section 22) and the Appellate Tribunal (Section 46),such authorities alone must be held entitled to decide all issues concerningthe Project registered under the RERA Act. It was submitted that if theallottees were to be permitted to initiate parallel proceedings before thefora under the CP Act, the financial drain on the promoter would render Dcompletion of construction an impossibility and, therefore, the RERAAct in general and Section 89 in particular be construed in such a waythat all the issues pertaining to the concerned project be decided only bythe authorities under the RERA Act. Even with acceptance of suchinterpretation, the allottees would still be entitled to approach theauthorities under Section 18 of the RERA Act.E

30. It is true that some special authorities are created under theRERA Act for the regulation and promotion of the real estate sector andthe issues concerning a registered project are specifically entrusted tofunctionaries under the RERA Act. But for the present purposes, wemust go by the purport of Section 18 of the RERA Act. Since it gives aFright “without prejudice to any other remedy available’, in effect, suchother remedy is acknowledged and saved subject always to theapplicability of Section 79.

31. At this stage, we may profitably refer to the decision in PioneerUrban Land and Infrastructure Limited and another vs. Union ofGIndia and another*, where a bench of three Judges of this Court wascalled upon to consider the provisions of Insolvency and BankruptcyCode, 2016, RERA Act and other legislations including the provisions ofthe CP Act. One of the conclusions arrived at by this Court was:- *(2019) 8 SCC 416H

“100. RERA is to be read harmoniously with the Code, asamended by the Amendment Act. It is only in the event of conflictthat the Code will prevail over RERA. Remedies that are given toallottees of flats/apartments are therefore concurrent remedies,such allottees of flats/apartments being in a position to avail ofremedies under the Consumer Protection Act, 1986, RERA aswell as the triggering of the Code.”

32. We, therefore, reject the submissions advanced by the Appellantand answer the questions raised in paragraph 26 hereinabove againstthe Appellant.

33. We may now consider the effect of the registration of theProject under the RERA Act. In the present case the apartments werebooked by the Complainants in 2011-2012 and the Builder BuyerAgreements were entered into in November, 2013. As promised, theconstruction should have been completed in 42 months. The period hadexpired well before the Project was registered under the provisions ofthe RERA Act. Merely because the registration under the RERA Actis valid till 31.12.2020 does not mean that the entitlement of the concernedallottees to maintain an action stands deferred. It is relevant to note thateven for the purposes of Section 18, the period has to be reckoned interms of the agreement and not the registration. Condition no. (x) of theletter dated 17.11.2017 also entitles an allottee in same fashion.Therefore, the entitlement of the Complainants must be considered inthe light of the terms of the Builder Buyer Agreements and was rightlydealt with by the Commission.

34. Lastly, it may be noted that the Consumer Protection Act,2019* (hereinafter referred as, “2019 Act”) was enacted by theParliament “to provide for protection of the interests of consumersand for the said purpose, to establish authorities for timely andeffectively administration and settlement of the consumers’ disputeand for matters connected therewith or incidental thereto”. Sections2(7), 2(33), 2(37), and 2(42) define expressions “Consumer”, “Product”,“Product Seller” and “Service” respectively. Sections 85 and 86 dealwith liability of “Product Service Provider” and “Product Seller”. Sections100 and 107 of 2019 Act are to the following effect:-

* Most of the provisions in Chapters I, II, IV, V, VI, VII and VIII including Sections 100and 107 were brought into force w.e.f. 27.07.2020 vide Notification dated 15.07.2020

A

B

CD

E

F

G

H

A“100. The provisions of this Act shall be in addition to and not inderogation of the provisions of any other law for the time being inforce.

107. (1) The Consumer Protection Act, 1986 is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action takenBor purported to have been done or taken under the Act herebyrepealed shall, in so far as it Is not inconsistent with the provisionsof this Act, be deemed to have been done or taken under thecorresponding provisions of this Act.

(3) The mention of particular matters in sub-section (2) shall notCbe held to prejudice or affect the general application of section 6of the General Clauses Act, 1897 with regard to the effect ofrepeal.”

Section 100 of 2019 Act is akin to Section 3 of the CP Act andSection 107 saves all actions taken or purported to have been takenDunder the CP Act. It is significant that Section 100 is enacted with anintent to secure the remedies under 2019 Act dealing with protection ofthe interests of Consumers, even after the RERA Act was brought intoforce.

Thus, the proceedings initiated by the complainants in the presentEcases and the resultant actions including the orders passed by theCommission are fully saved.

35. Resultantly, we reject all the submissions advanced by theAppellant. These appeals are accordingly dismissed affirming the viewtaken by the Commission. We quantify the costs at Rs.50,000/- (RupeesFFifty Thousand only) to be paid by the Appellant in respect of each ofthe Consumer Cases, over and above the amounts directed to be madeover to the Complainants and shall form part of the amount payable bythe Appellant to the Complainants.

36. All the Complainants are entitled to execute the orders passedGby the Commission in their favour, in accordance with law.

Ankit Gyan

Appeals dismissed.

H