IREO GRACE REALTECH PVT. LTD. versus ABHISHEK KHANNA & OTHERS on 11 January 2021

[2021] 2 S.C.R. 1

IREO GRACE REALTECH PVT. LTD.

v.

ABHISHEK KHANNA & OTHERS

(Civil Appeal No. 5785 of 2019)

JANUARY 11, 2021

[DR. DHANANJAYA Y CHANDRACHUD,

INDU MALHOTRA AND INDIRA BANERJEE, JJ.]

Consumer Protection – Apartment Buyer’s Agreement – Unfairtrade practice – Oppressive and one sided contractual terms – Held:The Developer cannot compel the apartment buyers to be bound bythe one-sided contractual terms contained in the Apartment Buyer’sAgreement – Incorporation of one-sided and unreasonable clausesin the Apartment Buyer’s Agreement constitutes an unfair tradepractice u/s.2(1)(r) of CP Act, 1986 – Even under the CP Act of1986, the powers of the consumer fora were in no mannerconstrained to declare a contractual term as unfair or one-sided asan incident of the power to discontinue unfair or restrictive tradepractices – An “unfair contract” has been defined under theConsumer Protection Act, 2019, and powers have been conferredon the State Consumer Fora and the National Commission to declarecontractual terms which are unfair, as null and void – This is astatutory recognition of a power which was implicit under theConsumer Protection Act, 1986.

Consumer Protection – Applicability of provisions ofConsumer Protection Act as an additional remedy, despite existenceof remedies under special statutes – Whether primacy to be given toRERA Act over the Consumer Protection Act – Held: Remedies underthe Consumer Protection Act are in addition to remedies availableunder special statutes – Absence of a bar u/s.79 of RERA Act toinitiation of proceedings before a fora which is not a civil court,read with s.88 of the RERA Act makes the position clear – s.18 ofthe RERA Act specifies that remedies are “without prejudice to anyother remedy available” – Real Estate (Regulation & Development)Act, 2016 (RERA Act)

Consumer Protection – Apartment Buyer’s Agreement –Determination of the date for handing over Possession – Discussed,with reference to the facts and circumstances of the case.

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AConsumer Protection – Apartment Buyer’s Agreement –Entitlement of the Apartment Buyers to refund of the amount depositedwith Delay Compensation – Discussed, with reference to the factsand circumstances of the case.

Disposing of the appeals, the CourtB

HELD: 1.1 The first issue which has been raised by theAppellant-Developer as also the Apartment Buyers, is therelevant date from which the 42 months’ period is to be calculatedfor handing over possession. Clause 13.3 of the Agreement statesthat the Developer proposed to offer possession of the apartmentCto the allottee within a period of 42 months from the date ofapproval of the Building Plans and/or fulfilment of the pre-conditions imposed thereunder, referred to as the “CommitmentPeriod”. The Company would be entitled to a further “GracePeriod” of 180 days’ after the expiry of the Commitment Periodfor unforeseen delays beyond the reasonable control of theDCompany. This would work out to 42+6 months i.e. 48 months.[Para 18][29-C-E]

1.2 The point of controversy is whether the 42 months’period is to be calculated from the date when the Fire NOC wasgranted by the concerned authority, as contended by theEDeveloper; or, the date on which the Building Plans wereapproved, as contended by the Apartment Buyers. Section 15of the Haryana Fire Safety Act, 2009 makes it mandatory for aBuilder/Developer to obtain the approval of the Fire FightingScheme conforming to the National Building Code of India, andFobtain a No Objection Certificate before the commencement ofconstruction. Clause 13.3 of the Apartment Buyer’s Agreementprovides that the 42 months’ period has to be calculated fromthe date of approval of the Building Plans and/or fulfilment of thepre-conditions imposed thereunder. The Building Planssanctioned by the Directorate of Town and Country Planning,GHaryana contained the Terms & Conditions of Approval, whichincluded a provision for Fire Safety contained in Clause (3). TheDeveloper was directed to submit Fire Safety Plans indicatingthe complete Fire Protection Arrangements, and means of escape/

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access for the proposedbuilding with suitable legend and standardsigns. On receipt of the Fire Plans, the Commissioner, MunicipalCorporation, Gurgaon, after satisfying himself with the entire fireprotection measures as in conformity with the National BuildingCode, 2005 and the Fire Safety Bye-Laws, would issue an NOCfor Fire Safety. This NOC/Clearance was required to be submittedbefore the Municipal Corporation, within a period of 90 days’fromthe issuance of the sanctioned Building Plans. Clause 17(iv) ofthe sanctioned Plan stipulated that the Developer shall obtain anNOC from the Ministry of Environment & Forests, before startingthe construction/execution of development works at site. TheEnvironmental Clearance granted by the Ministry of Environment& Forest Government of Haryana on 12.12.2013 required theDeveloper to submit a copy of the Fire Safety Plan approved bythe Fire Department, before commencing construction of theproject. General Condition (vi) under Part B of the EnvironmentalClearance stipulated that the Developer shall obtain all otherstatutory clearances, including the approval from the FireDepartment, prior to construction of the project. Thus, it was amandatory requirement under the Haryana Fire Safety Act, 2009to obtain the Fire NOC before commencement of constructionactivity. This requirement is stipulated in the sanctioned BuildingPlans, as also in the Environment Clearance. The 42 months’period in Clause 13.3 of the Agreement for handing overpossession of the apartments would be required to be computedfrom the date on which Fire NOC was issued, and not from thedate of the Building Plans being sanctioned. In the present case,the Developer obtained approval of the Building Plans from theDirectorate, Town and Country Planning, Haryana, on 23.07.2013.The Developer applied for issuance of Fire NOC for the FireFighting Scheme of the Group Housing Colony within the 90 daysperiod before the Director, Fire Service, Panchkula. [Paras 18.1-18.10][29-E-G; 30-G-H; 31-A-H; 32-A-H]

1.3 The Commissioner vide letter dated 30.12.2013 raised16 objections with respect to the proposed Fire Fighting Plan.The Developer vide letter dated 22.01.2014 responded to theobjections, submitting that the objections had been cured, and AB

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Arequested that the approval of the Fire Fighting Scheme begranted on a priority basis. The Fire Department informed theDeveloper vide letter dated 28.03.2014 that the deficiencies inthe application for Fire NOC had not been cured. The Developerwas granted a further period of 15 days’ to cure the defects, failingwhich, its application would be deemed to be rejected. TheBDeveloper submitted revised drawings as per the NBC FireScheme alongwith its letter dated 18.08.2014. This letter wasreceived in the office of the Municipal Corporation on 13.10.2014,as per endorsement on the said letter. [Para 18.10][33-A-D]

1.4 On 27.11.2014, the Director, Haryana Fire ServiceCgranted approval to the Fire Fighting Scheme subject to theconditions mentioned therein. The computation of the period forhanding over possession would be computed from this date. TheCommitment Period of 42 months plus the Grace Period of 6months from 27.11.2014, would be 27.11.2018, as being theDrelevant date for offer of possession. The aforesaid chronologyfor obtaining Fire NOC would indicate a delay of approximately 7months in obtaining the Fire NOC by the Developer. [Para18.11][33-D-F]

2.1 Under the construction-linked plan, Clause 6 providedEthat the apartment buyers would be required to deposit 20% ofthe sale consideration within 45 days of booking of the apartment.Clause 7.4 of the Agreement provides that if there is a delay inpayment of an instalment, the apartment buyer would be requiredto pay Interest on every delayed payment of such instalment @20% S.I. p.a. Clause 13.2 of the Agreement provides that if theFallottee fails, ignores or neglects to take possession of the saidApartment in accordance with the Notice of Possession, theallottee shall be liable to pay “Holding Charges” on the superarea @ Rs.7.5 per sq. ft. per month. In contrast, Clause 13.3 ofthe Agreement provides that if the Company fails to offerGpossession by the end of the Grace Period i.e. 42+6 months, itwould be liable to pay Delay Compensation@ Rs.7.5 per sq. ft. ofthe super area for every month of delay. [Para 19.1][33-G-H;34-B-D]

2.2 Delay compensation at Rs. 7.5 per sq. ft. works out toHapproximately 0.9% to 1 % Interest per annum.The price per sq. ft of an apartment under the Apartment Buyer’s Agreementwas Rs. 10,350/- per sq. ft. Clause 13.5 provides that the allotteemay opt for termination, only after 42 months from the date ofissuance of Fire NOC + 6 months’ Grace Period, plus a furtherperiod of 12 months. The Delay Compensation would be payableto the allottee only if the termination was “validly opted”. Thecompensation was limited to a fixed period of 12 months only,and that no other claim whatsoever, whether monetary orotherwise, was payable by the Developer. Clause 13.8 of theAgreement provides that the allottee shall be deemed to havewaived all its claims in respect of the area, specifications, quality,construction, any other provision in the apartment against theDeveloper upon taking possession of the apartment. Clause 21provides for termination of the Agreement and forfeiture ofearnest money by the Developer, if the allottee neglects or failsto make timely payments as stipulated in the Agreement, or failsto exercise the options offered by the Developer. [Para 19.1][34-D-H; 35-A-B]

2.3 Clause 21.3 provides that upon such termination, theAppellant Company shall be under no obligation, except to refundthe amounts already paid by the allottee, without any interest,and after forfeiting and deducting the earnest money, interest ondelayed payments, brokerage / commission / charges, servicetax and other amounts due and payable to it. The principal amountafter the aforesaid deductions are made, would be refunded at anuncertain future date i.e. after the Developer had sold theapartment allotted to the complainant. In contrast, the allottee isgiven a very limited right to cancel the Agreement solely in theevent of the clear and unambiguous failure of the warranties ofthe Company, which leads to frustration of the Agreement onthat account. In such case, the allottee will be entitled to a refundof the instalments actually paid, along with interest @ 8% p.a.within a period of 90 days from the date of determination to thiseffect. No other claim, whatsoever, monetary or otherwise shalllie against the Company. [Para 19.1][35-B-E]

2.4 The aforesaid clauses reflect the wholly one-sided termsof the Apartment Buyer’s Agreement, which are entirely loaded ABCD

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[2021] 2 S.C.R.

Ain favour of the Developer, and against the allottee at every step.The terms of the Apartment Buyer’s Agreement are oppressiveand wholly one-sided, and would constitute an unfair trade practiceunder the Consumer Protection Act, 1986. Section 2(1)(g) of theAct defines the expression “deficiency” to include any fault,shortcoming or inadequacy in the quality, nature and manner ofBperformance which is required to be maintained under law, or inpursuance of a contract, or in relation to a ‘service’. The term“service” has been defined by S. 2(1)(o) to include a service ofany description which is made available to potential users. S.2(1)(o) was amended by Act 50 of 1993 w.e.f. from 18.06.1993 toCinclude “housing construction” within the purview of “service”.[Paras 19.2, 19.3][35-E-H; 36-A-D]Lucknow Development Authority v. M.K. Gupta (1994)1 SCC 243 : [1993] 3 Suppl. SCR 615; Pioneer UrbanLand and Infrastructure Ltd v. Govindan RaghavanD(2019) 5 SCC 725 : [2019] 5 SCR 1169; Wg. Cdr. ArifurRahman Khan & Others v. DLF Southern Homes Pvt.Ltd., 2020 SCC Online SC 667 – relied on 2.5 Section 14 of the 1986 Act empowers the ConsumerFora to redress the deficiency of service by issuing directions toEthe Builder, and compensate the consumer for the loss or injurycaused by the opposite party, or discontinue the unfair orrestrictive trade practices. The incorporation of such one-sidedand unreasonable clauses in the Apartment Buyer’s Agreementconstitutes an unfair trade practice under Section 2(1)(r) of theConsumer Protection Act. Even under the 1986 Act, the powersFof the consumer fora were in no manner constrained to declare acontractual term as unfair or one-sided as an incident of the powerto discontinue unfair or restrictive trade practices. An “unfaircontract” has been defined under the 2019 Act, and powers havebeen conferred on the State Consumer Fora and the NationalGCommission to declare contractual terms which are unfair, as nulland void. This is a statutory recognition of a power which wasimplicit under the 1986 Act. The Developer cannot compel theapartment buyers to be bound by the one-sided contractual termscontained in the Apartment Buyer’s Agreement. [Paras 19.6,19.7][40-B-F]H

3.1 The Consumer Protection Act, 1986 was enacted toprotect the interests of consumers, and provide a remedy forbetter protection of the interests of consumers, including theright to seek redressal against unfair trade practices orunscrupulous exploitation. Section 3 of the Consumer Actprovides that the remedies under the Act are in addition to, andnot in derogation of any other law applicable. [Paras 20.1, 20.2][40-F-G; 41-G-H]

Secretary, Thirumurugan Cooperative AgriculturalCredit Society v. M. Lalitha (dead) through LRs andothers (2004) 1 SCC 305 : [2003] 6 Suppl. SCR 659– referred to National Seeds Corporation Limited v. M.Madhusudhan Reddy (2012) 2 SCC 506 : [2012]2 SCR 1065; Virender Jain v. Alaknanda CooperativeGroup Housing Society Limited and others (2013) 9 SCC383 : [2013] 2 SCR 1058; Emaar MGF Land Ltd. v.Aftab Singh, (2019) 12 SCC 751 : [2018] 14 SCR 791– relied on.

3.2 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”. Section 71of the RERA Act empowers the RERA Authority to determinecompensation payable under Sections 12, 14, 18 and 19 of theAct. The proviso to Section 71 provides that a consumer has theright to withdraw its complaint before the consumer fora in respectof matters covered under Sections 12, 14, 18 and 19 of the Act,and file the same before the RERA. [Paras 20.5, 20.6][45-E-G]

3.2 Section 79 of the RERA Act bars the jurisdiction onlyof civil courts in respect of matters which an authority constitutedunder the RERA Act is empowered to adjudicate on. Section 88of the RERA Actis akin to Section 3 of the Consumer ProtectionAct, and provides that the provisions of the RERA Act shall applyin addition to and not in derogation of other applicable laws. [Paras20.7, 20.8][46-D-F]

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A3.3 An allottee may elect or opt for one out of the remediesprovided by law for redressal of its injury or grievance. An electionof remedies arises when two concurrent remedies are available,and the aggrieved party chooses to exercise one, in which eventhe loses the right to simultaneously exercise the other for thesame cause of action. [Para 20.9][46-G-H]B

A.P. State Financial Corporation v. M/s GAR Re-rollingCorporation (1994) 2 SCC 647 : [1994] 1 SCR 857;P.R. Deshpande v. Maruti Balaram Haibatti (1998) 6SCC 507 : [1998] 3 SCR 1079; National Insurance Co.Ltd. v. Mastan & Ors. (2006) 2 SCC 641 : [2005]C5 Suppl. SCR 704 – referred to Transcore v. Union of India (2008) 1 SCC 125 : [2006]9 Suppl. SCR 785; Mathew Varghese v. M. AmrithaKumar (2014) 5 SCC 610 : [2014] 2 SCR 736; M/sImperia Structures Ltd. v. Anil Patni and Anr (2020) 10DSCC 783 – relied on 3.4 The absence of a bar under Section 79 of the RERA Actto the initiation of proceedings before a fora which is not a civilcourt, read with Section 88 of the RERA Act makes the positionclear. Section 18 of the RERA Act specifies that the remediesEare “without prejudice to any other remedy available”. [Para20.11][51-D-E]

4.1 The Apartment Buyers in their Complaint filed beforethe National Commission made a prayer for refund of the amountdeposited alongwith Interest @ 20% p.a. compounding quarterlyFtill its realisation. The Apartment Buyers, in their submissionshave stated that they have obtained home loans on which Interest@ 7.90% p.a. is being paid, even as on date. The DelayCompensation specified in the Apartment Buyer’s Agreement ofRs. 7.5 per sq. ft. which translates to 0.9% to 1% p.a. on theGamount deposited by the Apartment Buyer cannot be acceptedas adequate compensation for the delay in the construction ofthe project. At the same time, the claim of the Apartment Buyersfor payment of compound interest @ 20% p.a., cannot be accepted AB

as it has no nexus with the commercial realities of the prevailingmarket. [Para 21.2][57-E-G]

4.2 Covid–19 Pandemic has greatly impacted theconstruction industry. In these circumstances, it is necessary tobalance the competing interest of both parties. In the interestsof justice and fairplay, the amounts deposited by the ApartmentBuyers is refunded with Interest @ 9% S.I. per annum from27.11.2018 till the date of payment of the entire amount. Therefund will be paid within a period of three months from the dateof this judgment. If there is any further delay, the Developer willbe liable to pay default interest @ 12% S.I. p.a. The Developershall not deduct the Earnest Money of 20% from the principalamount, or any other amount as mentioned in Clause 21.3 of theAgreement, on account of the various defaults committed by theDeveloper, including the delay of over 7 months in obtaining theFire NOC. [Para 21.2][58-A-D]

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ACIVIL APPELLATE JURISDICTION : Civil Appeal No. 5785of 2019.

From the Judgment and Order dated 28.03.2019 of the NationalConsumer Disputes Redressal Commission, New Delhi in ConsumerComplaint No. 3873 of 2017.

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Civil Appeal NoS. 7615, 7975, 8454, 8480, 8482, 8785-94, 9139,9216, 9638 of 2019 and Civil Appeal No. 3064 of 2020.

Anil Grover ,Sr. AAG Haryana, Chander Uday Singh, Sr. Adv.,CMahesh Agarwal, Rishi Agrawala, Abhimanyu Bhandari, AnshumanSrivastava, Sameer Chaudhary, Divyang Chandiramani, Shaishir Divatia,Aarush Bhatia for Mr. E. C. Agrawala, Piyush Singh, Aditya Parolia,Akshay Srivastava, Nithin Chandran, Prateek Vats, Rajesh Kumar, GauravGoel, A.R.Takkar, Amarjeet Kumar, Ms. Shriya Takkar, A. VenayagamBalan, Deepak Kumar Khushalani, Santosh Kumar Pandey, Yashraj SinghDDeora, Ms. Sonal Mashankar, Ms. Shivangi Sud, Shyam Agarwal,Abhishek Birthray, Adeem Ahmed, Sumit R Sharma, Rajiv Raheja, GopalJha, Ms. Noopur Singhal, Rahul Khurana, Satish Kumar, Subas Ray,Sanjay Kumar Visen, Advs. for the appearing parties.

The Judgment of the Court was delivered by EINDU MALHOTRA, J.

1. The present batch of Appeals has been filed by the Appellant-Developer, to challenge the judgment passed by the National ConsumerDisputes Redressal Commission (“National Commission”) directing refundof the amounts deposited by the Apartment Buyers in the project “TheFCorridors” developed in Sector 67-A, Gurgaon, Haryana, on account ofthe inordinate delay in completing the construction and obtaining theOccupation Certificate. Aggrieved by the said Judgment, the Appellant-Developer has filed the present batch of Appeals under Section 23 ofthe Consumer Protection Act, 1986 (“Consumer Protection Act”).

Since common issues have arisen for consideration, they are beingdecided by a common Judgment.

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For the sake of brevity, the facts in Civil Appeal No. 5785 of 2019are being referred to as the lead matter.

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2. The Department of Town and Country Planning granted alicense to Respondent No.3 – Precision Realtors Pvt. Ltd. andRespondent No.4 – Blue Planet Infra Developers and Madeira ConbuildPvt. Ltd. for developing a group housing colony on a vast tract of landadmeasuring about 37.5125 acres where multiple towers comprising of1356 apartments were to be constructed. Subsequently, the license forconstruction was transferred to the Appellant- Developer.

3. On 23.07.2013, the Building Plans of the project were sanctionedby the Directorate of Town and Country Planning, Haryana. Clause 3 ofthe sanctioned Plan stipulated that NOC/ Clearance from the FireAuthority shall be submitted within 90 days from the date of issuance ofthe sanctioned Building Plans.

4. The Developeropened booking for the apartments in 2013. On07.08.2013, the Respondent No.1- Apartment Buyer was allotted a 2BHK apartment in Tower-C of the project. Similar allotment letters wereissued to various other Apartment Buyers in the housing project.

5. On 23/24.10.2013, the Developer applied for issuance of anNOC for the Fire Fighting Scheme of the group housing colony to theCommissioner, Municipal Corporation, Gurgaon.

The Commissioner, Municipal Corporation vide letter dated30.12.2013 raised 16 objections with respect to the proposed Fire FightingScheme submitted by the Developer.

The Developer replied to the said objections vide letter dated22.01.2014, stating that the objections raised by the Commissioner hadbeen rectified. The Developer sought approval of the Fire FightingScheme on priority.

The Municipal Corporation vide letter dated 28.03.2014 informedthe Developer that the deficiencies in the application for Fire NOC hadnot been cured.The Developer was granted 15 days’ time to cure thedefects, failing which, the application would be deemed to be rejected.

Ultimately, on 27.11.2014, the Director, Haryana Fire Servicegranted approval to the Fire Fighting Scheme subject to the conditionsmentioned therein.

6. On 12.12.2013, Respondent No.3 obtained environmentalclearance for setting up the group housing project from the State A

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AEnvironment Impact Assessment Authority. Clause 39 of the saidclearance stipulated that the project proponent shall submit a copy of theFire Safety Plan duly approved by the Fire Department before the startof construction.

Under Part-B of the General Conditions in Clause (vi), it wasBstipulated that the project proponent would obtain all other statutoryclearances, such as the approval for storage of diesel from the ChiefController of Explosives, Fire Department, Civil Aviation Department,Forest Conservation Act, 1980 and Wildlife (Protection) Act, 1972, ForestAct, 1927, PLPA 1900 etc. from the concerned authorities, prior to theconstruction of the project.C7. The Apartment Buyers vide letter dated 25.03.2014 received acopy of the Apartment Buyer’s Agreement with a construction linkedpayment plan, which is extracted hereunder :

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8. On 12.05.2014, the Developer executed the Apartment Buyer’sAgreement in favour of Respondent No.1 – Apartment Buyer for a totalconsideration of Rs.1,45,22,006/-.

The relevant terms of the Apartment Buyer’s Agreement are set-out hereinbelow :

Clause 6 pertains to payment of Earnest Money, and reads as :

“6. EARNEST MONEY

The Company and the Allottee hereby agree that 20% (Twentypercent) of the Sale Consideration of the Apartment shall bedeemed to constitute the “Earnest Money”.”

Clause 7 pertains to payment of instalments, and provides that :

“7. PAYMENT OF INSTALLMENTS

7.1 The Allottee has opted for the Payment Plan annexed herewithas Annexure-IV. The Allottee understands that it shall alwaysremain responsible for making timely payments in accordancewith the Payment Plan Annexure-IV. Only in the case of aconstruction linked Payment Plan, the Company shall be obligedto send demand notices for installments on or about the completionof the respective stages of construction. The demand notices shallbe sent by registered post/courier and shall be deemed to havebeen received by the Allottee within 05 (five) days of dispatch bythe Company or receipt thereof, whichever is earlier.

7.2 It shall not be obligatory on the part of the Company to sendany reminders for any payments whatsoever. Although theCompany shall not be obliged to send demand notices other thanfor the construction linked Payment Plan, or any reminderswhatsoever for payments of the instalment, in the event that anysuch notices or reminders are sent by the Company to the Allottee,as a gesture of courtesy, these shall not, under any circumstances,be construed or deemed to be a waiver of the obligations andresponsibility of the Allottee to itself make timely payments inaccordance with the Payment Plan or in response to such demandnotices in the case of a construction linked Payment Plan.

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7.3 If the Allottee prepays any installments(s) or part thereof tothe Company before it falls due for payment, the Allottee shall beentitled to pre-payment rebate on such prepaid amounts at theinterest rate declared by the Company for this purpose from timeto time. The interest on such prepaid installment(s) shall becalculated from the date of prepayment uptill the date when suchamount would actually have become due. The credit due to theAllottee on account of such pre-payment rebate shall however beadjusted/paid only at the time of final instalment for the saidApartment.

7.4 The Allottee shall be liable to pay simple interest on everydelayed payment, at the rate of 20% per annum from the datethat it is due for payment till the date of actual payment thereof.Incase the Allottee defaults in making payment of the due installment(including partial default) beyond a period of 90 days from thedue date, the Company shall be entitled, though not obliged, tocancel the Allotment and terminate this Agreement at any timethereafter in accordance herewith. However, the Company mayalternatively, in its sole discretion, instead decide to enforce thepayment of all its dues from the Allottee by seeking SpecificPerformance of this Agreement. Further, in every such case ofdelayed payment, irrespective of the type of Payment Plan, thesubsequent credit of such delayed installments(s)/payments alongwith delayed interest in the account of the Company shall nothowever constitute waiver of the right of termination reservedherein and shall always be without prejudice to the rights of theCompany to terminate this Agreement in the manner providedherein.

7.5 Save and except in the case of any bank, financial institutionor company with whom a tripartite agreement has been separatelyexecuted for financing the said Apartment, or where the Companyhas given its permission to mortgage to any bank, financial institutionor company for extending a loan to the Allottee against the saidApartment, the Company shall not be responsible towards anyother third party, who has made payments or remittances to theCompany on behalf of the Allottee and any such third party shallnot have any right against the said Apartment or under thisAgreement whatsoever. The Company shall issue the payment receipts only in favour of the Allottee. Notwithstanding the above,the Allottee is and shall remain solely and absolutely responsiblefor ensuring and making all the payments due under this Agreementon time.

7.6 The Allottee may obtain finance/loan from any financialinstitution, bank or any other source, but the Allottee’s obligationto purchase the said Apartment pursuant to this Agreement shallnot be contingent on the Allottee’s ability or competency to obtainsuch finance. The Allottee would remain bound under thisAgreement whether or not it has been able to obtain finance forthe purchase of the said Apartment. The Allottee agrees and hasfully understood that the Company shall not be under any obligationwhatsoever to make any arrangement for the finance/loan facilitiesto the Allottee from any bank/financial institution. The Allotteeshall not omit, ignore, delay, withhold, or fail to make timelypayments due to the Company in accordance with the PaymentPlan opted by the Allottee in terms of this Agreement on the groundsof the non-availability of bank loan or finance from any bank/financial institution for any reason whatsoever and if the Allotteefails to make the due payment to the Company within the timeagreed herein, then the Company shall have right to terminate thisAgreement in accordance herewith.

7.7 Furthermore, in every case where the Allottee has obtained aloan/finance from a bank, financial institution or any other sourceand for which a tripartite agreement has also been executed bythe Company, it is agreed by the Allottee that any default by theAllottee of the terms and conditions of such loan/finance, shallalso be deemed to constitute a default by the Allottee of thisAgreement, whereupon or at the written request of such bank,financial institution or person from whom such loan has beenobtained the Company shall be entitled to terminate thisAgreement.”

Clause 13 of the Agreement provides for handing over possessionof the Apartments and reads as :

“13. POSSESSION AND HOLDING CHARGES

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SUPREME COURT REPORTS

A13.1. Upon receipt of the Occupation Certificate under the Actpertaining to the said Apartment, the Company shall notify theAllotee in writing to come and take over the possession of thesaid Apartment (“Notice of Possession”). In the event the Allotteefails to accept and take the possession of the said Apartmentwithin the time indicated in the said Notice of Possession, theBAllottee shall be deemed to have become the custodian of thesaid Apartment from the date indicated in the Notice of Possessionand the said Apartment shall thenceforth remain at the sole riskand cost of the Allottee itself.

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13.2. Notwithstanding any other provisions of this Agreement, theAllottee agrees that if it fails, ignores or neglects to take thepossession of the said Apartment in accordance with the Noticeof Possession sent by the Company, the Allottee shall be liable topay additional charges equivalent to Rs.7.5 (Rupees Seven &Half only) per sq. ft. on the Super Area per month of the saidApartment (“Holding Charges”). The Holding Charges shall be adistinct charge in addition to the maintenance charges and notrelated to any other charges/consideration as provided in thisAgreement.

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13.3 Subject to Force Majeure, as defined herein and furtherEsubject to the Allottee having complied with all its obligations underthe terms and conditions of this Agreement and not havingdefaulted under any provision(s) of this Agreement including butnot limited to the timely payment of all dues and charges includingthe total Sale Consideration, registration charges, stamp duty andother charges and also subject to the Allottee having compliedFwith all formalities or documentation as prescribed by the Company, E

the Company proposes to offer the possession of the saidApartment to the Allottee within a period of 42 (Forty Two) monthsfrom the date of approval of the Building Plans and/or fulfilmentof the preconditions imposed thereunder (“Commitment Period”).GThe Allottee further agrees and understands that the Companyshall additionally be entitled to a period of 180 days (“GracePeriod”), after the expiry of the said Commitment Period to allowfor unforeseen delays beyond the reasonable control of theCompany.

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13.4. Subject to Clause 13.3, if the Company fails to offerpossession of the said Apartment to the Allottee by the end of theGrace Period, it shall be liable to pay to the Allottee compensationcalculated at the rate of Rs.7.5 (Rupees Seven & Half only) persq. ft. of the Super Area (“Delay Compensation”) for every monthof delay until the actual date fixed by the Company for offeringpossession of the said Apartment to the Allottee. The Allotteeshall be entitled to payment/adjustment against such ‘DelayCompensation’ only at the time of ‘Notice of Possession’ or atthe time of payment of the final installment, whichever is earlier.

13.5. Subject to Clause 13.3, in the event of delay by the Companyin offering the possession of the said Apartment beyond a periodof 12 months from the end of the Grace Period (such 12 monthperiod hereinafter referred to as the “Extended Delay Period”),then the Allottee shall become entitled to opt for termination ofthe Allotment/Agreement and refund of the actual paid upinstallment(s) paid by it against the said Apartment after adjustingthe interest on delayed payments along with Delay Compensationfor 12 months. Such refund shall be made by the Company within90 days of receipt of intimation to this effect from the Allottee,without any interest thereon. For the removal of doubt, it is clarifiedthat the Delay Compensation payable to the Allotee who is validlyopting for termination, shall be limited to and calculated for thefixed period of 12 months only irrespective of the date on whichthe Allottee actually exercised the option for termination. Thisoption may be exercised by the Allottee only up till dispatch of theNotice of Possession by the Company to the Allottee whereuponthe said option shall be deemed to have irrevocably lapsed. Noother claim, whatsoever, monetary or otherwise shall lie againstthe Company and/or the Confirming Parties nor be raised otherwiseor in any other manner by the Allottee.

13.6. If, however, the completion of the said Apartment is delayeddue to Force Majeure as defined herein, the Commitment Periodand/or the Grace Period and/or the Extended Delay Period, asthe case may be, shall stand extended automatically to the extentof the delay caused under the Force Majeure circumstances. TheAllottee shall not be entitled to any compensation whatsoever,including Delay Compensation for the period of such delay.

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A13.7. Under no circumstances shall the possession of the saidApartment be given to the Allotteeand the Allottee shall not beentitled to the possession of the said Apartment unless and untilthe full payment of the Sale Consideration and any other duespayable under the Agreement have been remitted to the Companyand all other obligations imposed under this Agreementhave beenBfulfilled by the Allottee to the complete satisfaction of theCompany.

A

13.8. The Allottee hereby agrees and affirms that upon takingpossession of the said Apartment, the Allottee shall be deemed tohave waived all claims against the Company/Confirming Parties,if any, in respect of the area, specifications, quality, constructionand/or any item, amenity or provision in the said Apartment or”The Corridors Project.

C

Clause 21.3 reads as under:D

“21. TIME IS OF ESSENCE; TERMINATION ANDFORFEITURE OF EARNEST MONEY

21.1 Not with standing anything contained in this Agreement, timelyperformance by the Allottee of all its obligations under thisEAgreement or exercise of any options wherever and whereverand whenever indicated herein this Agreement including withoutlimitation its obligations to make timely payments of the SaleConsideration, maintenance charges and other deposits andamounts, including any interest, in accordance with this AgreementFshall be of essence under this Agreement. If the Allottee neglects,omits, ignores, or fails in the timely performance of its obligationsagreed or stipulated herein for any reason whatsoever or acts inany manner contrary to any undertaking assured herein or fails toexercise the options offered by the Company within the stipulatedperiod or to pay in time to the Company any of the instalments orGother amounts and charges due and payable by the Allottee asdescribed in Clause 7.7 herein, the Company shall be entitled tocancel the allotment and terminate this Agreement in the mannerdescribed hereunder.

21.1.1 In case any failure or breach committed by the Allotee isincapable or rectification or is in the opinion of the Company H

unlikely to be rectified by the Allottee or where the Allottee is arepetitive defaulter or such failure or default is continuing despitethe Allottee being given an opportunity to rectify the same, thenthis Agreement may be cancelled by the Company with immediateeffect at its sole option by written notice (“Notice of Termination”)to the Allottee intimating to the Allottee the decision of theCompany to terminate the Agreement and the grounds on whichsuch action has been taken.

…..

21.3 The Allottee understands, agrees and consents that upon suchtermination, the Company shall be under no obligation save andexcept to refund the amounts already paid by the Allottee to theCompany, without any interest, and after forfeiting and deductingthe Earnest Money, interest on delayed payments, brokerage/commission/charges, service tax and other amounts due andpayable to it, only after resale of the said Apartment. Upontermination of this Agreement by the Company, save for the rightto refund, if any to the extent agreed hereinabove, the Allotteeshall have no further right or claim against the Company and/orthe Confirming Parties which, if any, shall be deemed to havebeen waived off by the Allottee and the Allottee hereby expresslyconsents thereto. The Company shall thenceforth be free to dealwith the said Apartment in any manner whatsoever, in its sole andabsolute discretion and in the event that the Allottee has takenpossession of the said Apartment and everything whatsoevercontained therein and in such event, the Allottee and/or any otherperson/occupant of the said Apartment shall immediately vacatethe said Apartment and otherwise be liable to immediate ejectmentas an unlawful occupant/trespasser. This is without prejudice toany other rights available to the Company against the Allottee.”

9. On 27.12.2017, Respondent No.1 filed a Consumer Complaintbeing Consumer Case No.3823 of 2017 before the National Commission,wherein it was inter alia prayed that the Developer be directed to refundthe amount of Rs.1,44,72,364/- paid by the Apartment Buyer alongwithinterest @ 20% per annum compounded quarterly till realization, andcompensation towards damages on account of harassment, mental agonyand litigation charges.

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AThe Apartment Buyer inter alia submitted that the Developerhad invited applications from the public for booking flats in the housingcomplex “The Corridors”, by misrepresenting that all necessaryapprovals/pre-clearances with respect to the and constructions hadalready been obtained from the office of the Director, Town and CountryPlanning, Haryana, and other civil authorities. The Developer hadBmisrepresented at the time of booking that the project would have a 90-meters motorable access road approaching the project from Junction63A to 67A which was shown in the Apartment Buyer’s Agreement inthe layout plan. However, there was no access road of 90-meters to theproject, and/or 24-meters in the revised plans. The ApartmentCBuyerswere induced to book apartments on false representations madeby the Developer that construction of the project would be completedthe project within 42 months from the collection of the initial bookingamount.

As per Clause 13.3 of the Agreement, possession was to be handedDover within a period of 42 months from the date of approval of theBuilding Plans, with a GracePeriod of 180 days. Despite the aforesaidterms, the Developer had not offered possession to the Apartment Buyerstill the date of filing the complaint, even though the “CommitmentPeriod”for handing over possession had expired on 22.01.2017, and alsothe Grace Period had lapsed on 22.07.2017.TheApartment Buyers hadEregularly paid instalments as per the demands raised by the Developer.As on December 2016, a total sum of Rs.1,44,72,364/- had been paid bythe Respondent No. 1 to the Developer. To date, no offer of possessionhas been made to Apartment Buyers.

The Apartment Buyerssubmitted that the Building PlanswereFrevised in 2017, when the entire layout was changed whichled to thescrapping of some of the residential towers, so that the same could beconverted to commercial towers in the project. It was further mentionedthat the office of the District Town Planner (Enforcement), Gurgaon,Haryana, vide a restraint order dated 20.02.2017 issued Memo No.525-G526 to the Developer to immediately stop the construction with respectto Tower-A and Tower-B for causing harassment to the buyers.

10. The Developer filed its reply to the Consumer Complaintsubmitting that there was no delay in offering possession of the flats,since as per Clause 13.3 of the Agreement, possession was to be handedHover to the allottees within 42 months from the date of approval of the Building Plans, which included fulfilment of the conditions imposedthereunder. The Building Plan approval had been granted on 23.07.2013,which stipulatedcompliance with several pre-conditions, includingobtaining Fire Safety Scheme approval. This approval was granted onlyon 27.11.2014. Consequently, the 48 months’ time period for delivery ofpossession of the apartment would commence only on 27.11.2014,andexpire on 27.11.2018. Consequently, there was no delay in offeringpossession of the apartments. Hence, the complaint was premature andliable to be dismissed.

11. The National Commission in another case titled as “IREOGrace Realtech Pvt. Ltd. v. Ritu Hasija”being CC No.190 of 2017and connected matters, decided on 18.09.2018, held that clause 44 ofthat Agreement was wholly unfair and one-sided, which gave only alimited right to the Apartment Buyers to terminate the agreement, andseek refund of the amount paid by them.Clause 21.3 of the Flat BuyersAgreement read in conjunction with the other Clauses of the Agreementwould result in a situation where a flat buyer, despite the failure of thebuilder to offer possession within the time stipulated, would be practicallyleft remediless for 1½ years from the date of default, with no interest orcompensation payable to him, even though the money was utilized bythe builder. Even the principal amount would be refunded at an uncertainfuture point, after the builder had sold the apartment allotted to thecomplainant. Such a term was wholly unfair and unjust since theDeveloper had the right to terminate the agreement even if a singledefault occurred on the part of the Buyers, and forfeit the earnest money,and deduct other charges specified in Clause 21.3 of the BuyersAgreement. Clause 44 postponed the right of the flat buyer to terminatethe agreement and seek compensation even after the Grace Period hadexpired, which was wholly unfair and one-sided. The contract could beterminated after a delay of 12 months, and would be entitled to onlydelay compensation, without interest.

The Commission held that since the Developer had failed to deliverpossession of the allotted flats to the Apartment Buyers, it amounted todeficiency in service, and the complainants were entitled to refund ofthe amount alongwith appropriate compensation.

The Developer has filed SLP (C) No.40286 of 2019 against thisjudgment, which has been tagged to the present batch of appeals.

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A12. This judgment was followed by the National Commission inthe case of Subodh Pawar v. IREO Grace Realtech Pvt. Ltd. & Others,decided on 24.09.2018.The SLP filed by the Developer against thisjudgment,was dismissed by the Supreme Court vide order dated28.01.2019, on the statement made by the Counsel for the Developerthat the amount due and payable as per the order of the NationalBCommission, shall be refunded within a period of four weeks withinterest@ 10% p.a. w.e.f. 27.05.2018 till the date of payment.

A

A similar order was passed by this Court in IREO v. SurendraArora Civil Appeal (Diary) No. 48101 of 2018 on 28.01.2019.

C13. With respect to the same project, an Apartment Buyer filed acomplaint under Section 31 of the Real Estate (Regulation &Development) Act, 2016 (“RERA Act”) read with Rule 28 of theHaryana Real Estate (Regulation & Development) Rules, 2017 beforethe Haryana Real Estate Regulatory Authority, Gurugram (“RERA”).In this case, the Authority vide order dated 12.03.2019 held thatsince theDenvironment clearance for the project contained a pre-condition forobtaining Fire Safety Plan duly approved by the Fire Department beforestarting construction, the due date for possession would be required tobe computed from the date of Fire Approval granted on 27.11.2014,which would come to 27.11.2018. Since the Developer had failed toEfulfil the obligation under Section 11(4)(a) of this Act, the Developerwas liable under the proviso to Section 18 to pay interest at the prescribedrate of 10.75% p.a. on the amount deposited by the complainant, uptothe date when the possession was offered. However, keeping in viewthe status of the project, and the interest of other allottees, the Authoritywas of the view that refund cannot be allowed at this stage. TheFDeveloper was directed to handover possession of the apartment by30.06.2020, as per the Registration Certificate for the project.

14. The present batch of consumer complaints was decided bythe National Commission vide judgment and order dated 28.03.2019,which has been impugned herein. The National Commission has allowedGthe consumer complaints in terms of the earlier order passed in theSubodh Pawar case (supra). The National Commission recorded thestatement of the counsel for the complainants that in order to avoid anyfurther litigation, the complainants were restricting their claim for refundof the principal amount paid to the Developer, alongwith compensationH@ 10% S.I. p.a. w.e.f. from 10.07.2017, which was awarded by this

Court to another allottee in the same project as per Consent Order dated28.01.2019 passed in Civil Appeal Diary No.48101 of 2018.

15. We have heard the learned Counsel for the parties. The issueswhich have arisen for consideration are:

(i) Determination of the date from which the 42 months periodfor handing over possession is to be calculated under Clause13.3, whether it would be from the date of issuance of theFire NOC as contended by the Developer; or, from thedate of sanction of the Building Plans, as contended by theApartment Buyers; B

C

(ii) Whether the terms of the Apartment Buyer’s Agreementwere one-sided, and the Apartment Buyers would not bebound by the same;

(iii) Whether the provisions ofthe Real Estate (Regulation andDevelopment) Act, 2016 must be given primacy over theConsumer Protection Act, 1986;D

(iv) Whether on account of the inordinate delay in handing overpossession, the Apartment Buyers were entitled to terminatethe agreement, and claim refund of the amounts depositedwith interest.

E

16. The counsel for the Appellant – Developer inter alia submitted that :

(a) On the first issue, it was submitted that the period of 42months for handing over possession would commence onlyafter the conditions mentioned in the Building Plans werefulfilled. The ApartmentBuyer’sAgreement in Clause 13.3provides that the 42 months period would commence from“the date of approval of the Buildings plans and/or fulfilmentof the pre-conditions imposed thereunder”.

F

Clause 17(iv) of the Building Plans duly sanctioned on 23.07.2013issued by the Directorate of Town and Country Planning, stipulatedthat:- G

“17(iv). That the Coloniser shall obtain the clearance/NOC asper the provisions of the Notification No.SO 1533(E) dated14.09.2006 issued by the Ministry of Environment & Forests, H

[2021] 2 S.C.R.

AGovernment of India before starting the construction/execution”of development works at site.

This stipulation has been affirmed by the RERA, a specialisedfact-finding authority in respect of real estate projects, while interpretingBthe starting point of the 42 months period from the date of fire safetyapproval.Since the fire safety approval was obtained on 27.11.2014, theperiod of 42 months would commence from this date.

The due date for handing over possession of apartments must betaken to be 27.11.2018 i.e. 42 months from the date of obtaining the FireCSafety NOC on 27.11.2014, and a Grace Period of 6 months. In thisview of the matter, the complaint filed before the National Commissionwas premature and liable to rejected.

(b) The Apartment Buyers were bound by the terms of theApartment Buyer’s Agreement, which clearly states thatDthe “Commitment Period” would start only after fulfilmentof the pre-conditions under the Building Plan, and must begiven effect to by any adjudicatory body.

(c) Under Sections 15(2) and (3) of the Haryana Fire ServiceAct, 2009, it is the duty of the Authority to grant a provisionalENOC within a period of 60 days from the date of submissionof the application. The delay/failure of the Authority to granta provisional NOC cannot be attributed to the Developer.

(d) The Apartment Buyers was not required to pay the entireconsideration amount at the commencement of theFagreement, in a lump sum amount, since the considerationwas linked to the construction plan, and was payable ininstalments at various stages of the construction.

The Developer had not taken any instalment prior to27.11.2014, when the Fire Safety NOC was granted. TheGfirst instalment was taken on 27.01.2015, when a demandfor casting the lower roof slab was made from the allottees.All substantial payments of the project were based onmilestones linked to construction.

(e) It was submitted that in large development projects, whereHmultiple towers are being constructed, delays are inevitable.

The Agreement contemplated a reasonable Grace Periodof 180 days, which is a standard clause in the constructionindustry. The Apartment Buyer is not entitled to seek refundunless the Extended Delay Period is over. In any event, theApartment Buyer is being paid Delay Compensation forthe period of delay which has occurred during the courseof construction.

(f) The finding recorded by the National Commission that theclauses of the Apartment Buyer’s Agreement were one-sided and unfair was illegal and without jurisdiction, underthe Consumer Protection Act, 1986. It was only under theConsumer Protection Act, 2019, which came into effectfrom 20.07.2020, that the State Consumer Forum and theNational Commission were conferred with the power todeclare contractual terms that were as unfair to consumersas null and void. Such power did not exist under the 1986Act.

(g) It was further submitted that the National Commission wasnot justified in passing the impugned order by directing afull refund of the principal amount with interest @10% S.I.p.a. as compensation from 10.07.2017 till the refund wasmade within four weeks, failing which, interest would bepayable from the date of each deposit to the Developer, tillthe entire amount was refunded.

(h) It was submitted that the Respondents in Civil AppealsNo.7615, 7975, 8454, 8480, 8482, 8785-8794, 9139, 9216and 9638 of 2019; and the Appellant in Civil Appeal No.3064of 2020, are defaulters since they had paid only between30 to 40% of the total consideration. These buyers hadbreached their obligation to make payments as per theconstruction linked payment plan. Despite this, theDeveloper had made an alternate offer of similar units inthe completed towers in Phase 1 of the project where theOccupation Certificate had been granted, before the expiryof the Extended Delay Period.

(i) It was contended that the decision of the RERA must begiven primacy over the National Commission. The impugned A

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judgment passed by the National Commission was in directconflict with the judgment passed by the RERA, Haryanasince the National Commission had assumed the due datefor offer of possession as 23.01.2017.The RERA hadcorrectly held that the due date for delivery of possessionof apartments under the Agreement was 27.11.2018. RERAhad directed the Developer to hand over possession by30.06.2020, as mentioned in the Registration Certificate filedbefore the RERA. In view of the conflicting views takenby the two Fora which exercise original jurisdiction, it is theorder of RERA which ought to be upheld. Particularly, sinceRERA is a specialized fact-finding authority with respecttoreal estate projects, it is the special law which must prevailover the general law. RERA has been established underthe Real Estate (Regulation & Development) Act, 2016(“RERA Act”), for regulation and promotion of the realestate sector.

(j) It was submitted that by 21.07.2017, the construction ofPhase I of the project had been completed, which comprisedof Towers A6 – A10, B1 – B4, and C3 – C7, for which theOccupation Certificate was issued on 31.05.2019, and anoffer of possession was made to the apartment buyers.

With respect to the remaining Towers in Cluster-Acomprising of buildings A1 to A5; Cluster-B comprising ofbuildings B5 to B8; and, Cluster-C comprising of buildingsC8 to C11, the application for grant of part OccupationCertificate was submitted on 10.09.2019, which is pendingapproval.

The Developer made an alternate offer to the apartmentbuyers whose allotments were in Phase-II of the project,where the Occupancy Certificate has yet to be obtained, totransfer their allotment to a ready to move-in apartment inPhase-I of the project,wherethe Occupation Certificatehadbeen issued.

The construction and development of “The Corridors” grouphousing project has now been completed, with OccupationCertificate having been issued with respect to 700

apartments, out of a total of 1356 apartments in Towers A6to A10, B1 to B4, and C3 to C7.

(k) The Consent Order passed in IREO Grace Realtech Pvt.Ltd. v. Surendra Arora could not be relied upon to grantrelief in this batch of cases, since it was a Consent Orderpassed by the Court, and couldnot be treated as a precedent.

17. In response, the Apartment Buyers have inter alia submittedas under :-

(a) The building plans were approved on 23.07.2013, and theDeveloper wasrequired to hand over possession of theapartments within a period of 42 months from the date ofapproval, which expired on 22.01.2017. If the Grace Periodof 6 months under Clause 13.3 was added, the Developerwas required to give possession by 22.07.2017. TheDeveloper received the Occupation Certificate for certainTowers of the Project on 31.05.2019. Possession wasoffered to the Apartment Buyers in Phase I of the projectin 2019, after a delay of 1½ years.

Assuming that the date for possession would begin fromthe date of issuance of the Fire NOC i.e. 27.11.2014, theDeveloper was required to offer possession by 27.11.2018.The Developer offered possession in Phase I of the Projectto certain Apartment Buyers only after it received theOccupation Certificate in 2019.

With respect to the majority of the apartment buyers beforethis Court, their allotments were in Towers which were inPhase II of the project, where O.C. is yet to be obtainedeven as on date. Consequently, there has been a delay ofover 3 ½ years.

(b) The grant of Fire NOC was not apre-condition forcommencement of construction work. In fact, theDeveloper had started the construction before the grant ofFire NOC. Therefore, it could not becontended that thedelay in issuance of the Fire Safety clearance had impededthe construction of the units allotted to the respondents.

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28SUPREME COURT REPORTS

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A(c)The Developer had sought payment of the first threeinstalments prior to receiving the Fire NOC.The thirdinstalment was paid on 18.03.2014, before the grant of FireNOC.

(d) It was further submitted that neither the Building PlanBApproval nor Section 15 of the Haryana Safety Act, 2009places any restriction on the commencement ofconstruction, which wouldbe evident from the fact that theDeveloper had started theconstruction before the grant ofthe Fire NOC.

C(e)The sanctioned Building Plans stipulated thatthe NOC forFire Safety (Provisional) was required to be obtained withina period of 90 days from the date of approval of the BuildingPlans, which expired on 21.10.2013. The Developer appliedfor the Provisional Fire Approval on 24.10.2013 after theexpiry of the mandatory 90 days’ period got over. TheDapplication filed was deficient and casual and did not providethe requisite details. The appellant submitted the correctedsets of drawings as per the NBC-2005 Fire Scheme onlyon 13.10.2014, which reflected the laxity of the Developerin obtaining the Fire NOC.

EThe approval of the Fire Safety Scheme took more than 16months from the date of the Building Plan approval i.e. from23.07.2013 to 27.11.2014. The Builder failed to give anyexplanation for the inordinate delay in obtaining the FireNOC.

F(f)The Respondents placed reliance on the order passed inthe case of IREO Victory Valley Pvt. Ltd. v. ShamshulHoda Khan,[1 ]wherein the National Commission held thatthe Fire NOC was not a pre-condition for commencementof the construction work. The Appeal of the Developer wasGrejected by this Court vide order dated 03.05.2019, and theReview Petition was dismissed on 15.10.2019.

(g) The Agreement contained one-sided clauses, which werenot final and binding on the apartment buyers, and wouldconstitute an unfair trade practice. Reliance was placed on H1 Civil Appeal No.4801 of 2019 decided on 03.05.2019.

the judgment of this Court in Pioneer Urban Land andInfrastructure Ltd v. Govindan Raghavan.[[2]]

the judgment of this Court in Pioneer Urban Land andAInfrastructure Ltd v. Govindan Raghavan.[[2]](h)The respondents submitted that they had availed of loansto pay the instalments, on which interest @ 7.90% wasbeing paid. On account of the inordinate delay which hadoccurred, they were unable to pay further instalments, andBinsisted on refund of the amounts paid.

DISCUSSION & ANALYSIS

18. Determination of the date for handing over Possession The first issue which has been raised by the Appellant-Developerasalso the Apartment Buyers, is the relevant date from which the 42 months’period is to be calculated for handing over possession. Clause 13.3 ofthe Agreementstates that the Developer proposed to offer possession ofthe apartment to the allottee within a period of 42 months from the dateof approval of the Building Plans and/or fulfilment of the pre-conditionsimposed thereunder, referred to as the “Commitment Period”. TheCompany would be entitled to a further “Grace Period”of 180 days’after the expiry of the Commitment Period for unforeseen delays beyondthe reasonable control of the Company.This would work out to 42+6months i.e. 48 months.

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18.1 The point of controversy is whether the 42 months’ period isto be calculated from the date when the Fire NOC was granted by theconcerned authority, as contended by the Developer; or, the date onwhich the Building Plans were approved, as contended by the ApartmentBuyers.

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18.2 Section 15 of the Haryana Fire Safety Act, 2009 makes itmandatory for a Builder/Developer to obtain the approval of the FireFighting Scheme conforming to the National Building Code of India, andobtain a No Objection Certificate before the commencement ofconstruction. Section 15 is extracted hereinbelow for ready reference:

“15. Approval of Fire Fighting Scheme and issue of noobjection certificate.—(1) Any person proposing to construct abuilding to be used for any purpose other than residential purposeor a building proposed to be used for residential purpose of more-than 15 meters in height, such as group housing, multistoreyed G

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Aflats, walk-up apartments, etc. before the commencement ofthe construction, shall apply for the approval of Fire FightingScheme conforming to National Building Code of India, theDisaster Management Act, 2005 (53 of 2005), the Factories Act,1948 (Act 63 of 1948) and the Punjab Factory Rules, 1952, andissue of no objection certificate on such form, alongwith suchBfield as may be prescribed.

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(2) The Director or any officer duly authorised by him in thisbehalf, may take cognizance of any application and issue suchinstructions and orders regarding the building plan and forconstruction by issuing a provisional no objection certificate beforethe construction is taken up.

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Explanation. –In case any person proposes to increase the numberof floors on any building already constructed in such a mannerthat it shall qualify for being termed as a high rise building, shallbefore construction, apply for no objection certificate.

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(3) The provisional no objection certificate shall be issued within60 days of submission of application along with such fee, as maybe prescribed, giving all the details of the construction beingundertaken as well as the rescue, fire prevention and fire safetydetails required to be incorporated during the period ofEconstruction.

(4) During the process of construction, the inspection of theconstruction may be conducted and the advice about any additions,deviations, modifications that are required to be carried out fromthe precaution and prevention point of view, may be tendered.FSuch advice shall be made on a prescribed proforma and handedover to the party concerned.

(5) On completion of the construction of the high-rise building, ano objection certificate shall be obtained. In the absence of suchcertificate, the owner shall not occupy, lease or sell the building.”

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18.3 Clause 13.3 of the Apartment Buyer’s Agreement providesthat the 42 months’ period has to be calculated from the date of approval-of the Building Plans and/or fulfilment of the preconditions imposedHthereunder.

18.4 The Building Plans sanctioned by the Directorate of Townand Country Planning, Haryana contained the Terms & Conditions ofApproval, which included a provision for Fire Safety contained in Clause(3). The Developer was directed to submit Fire Safety Plans indicatingthe complete Fire Protection Arrangements, and means of escape/accessfor the proposedbuilding with suitable legend and standard signs.

Clause 3 of the Building Plans contained a provision for Fire Safety,which reads :

“3. FIRE SAFETY

On receipt of the above request the Commissioner, MunicipalCorporation, Gurgaon after satisfying himself that the entire fireprotection measures proposed for the above buildings are as perNBC and other Fire Safety Bye Laws, and would issue a NOCfrom Fire safety and means of escape/access point of view. Thisclearance/NOC from Fire Authority shall be submitted in this officealong with a set of plans duty signed by the Commissioner,Municipal Corporation, Gurgaon within a period of 90 days fromthe date of issuance of sanction of building plans.Further, it isalso made clear that no permission for occupancy of the buildingshall be issued by Commissioner, Municipal Corporation, Gurgaonunless he is satisfied that adequate fire fighting measures havebeen installed by you and suitable external fire fightinginfrastructure has been created at Gurgaon, by MunicipalCorporation, Gurgaon. A clearance to this effect shall be obtainedfrom the Commissioner, Municipal Corporation, Gurgaon beforegrant of occupation certificate by the Director General.”

18.5 On receipt of the Fire Plans, the Commissioner, MunicipalCorporation, Gurgaon, after satisfying himself with the entire fireprotection measures as in conformity with the National Building Code,2005 (“NBC”) and the Fire Safety Bye-Laws, would issue an NOC forFire Safety.This NOC/Clearance was required to be submitted beforethe Municipal Corporation, within a period of 90 days’from the issuanceof the sanctioned Building Plans.

18.6 Clause 17(iv) of the sanctioned Plan stipulated that theDeveloper shall obtain an NOC from the Ministry of Environment &Forests, before starting the construction/execution of development worksat site.

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“17 (iv) That the Developer shall obtain the clearance/NOC asper the provisions of the Notification No. S.O. 1533(E) dated14.09.2006 issued by Ministry of Environment and Forest,Government of India before starting the construction/execution”of development works at site.

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18.7 The Environmental Clearance granted by the Ministry ofEnvironment & Forest Government of Haryana on 12.12.2013 requiredthe Developer to submit a copy of the Fire Safety Plan approved by theFire Department, before commencing construction of the project.

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General Condition (vi) under Part B of the EnvironmentalClearance stipulated that the Developer shall obtain all other statutoryclearances, including the approval from the Fire Department, prior toconstruction of the project.

Clause (vi) provides that :D

“(vi) All other statutory clearancesuch as the approvals for storageof diesel from Chief Controller of Explosive, Fire Department,Civil Aviation Department, Forest Conservation Act, 1980 andWildlife (Protection) Act, 1972, Forest Act, 1927, PLPA 1900 etc.shall be obtained as applicable by project proponents from theErespective authorities prior to construction of the project.”

18.8 We are of the view that it was a mandatory requirementunder the Haryana Fire Safety Act, 2009 to obtain the Fire NOC beforecommencement of construction activity. This requirement is stipulatedFin the sanctioned Building Plans, as also in the Environment Clearance.

18.9 The 42 months’ period in Clause 13.3. of the Agreement forhanding over possession of the apartments would be required tobecomputed from the date on which Fire NOC was issued, and not fromthe date of the Building Plans being sanctioned.

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18.10 In the present case, the Developer obtained approval of theBuilding Plans from the Directorate, Town and Country Planning, Haryana,on 23.07.2013.The Developer applied for issuance of Fire NOC for theFire Fighting Scheme of the Group Housing Colony within the 90 daysperiod before the Director, Fire Service, Panchkula.

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The Commissioner vide letter dated 30.12.2013 raised 16 objectionswith respect to the proposed Fire Fighting Plan.

The Developer vide letter dated 22.01.2014 responded to theobjections, submitting that the objections had been cured, and requestedthat the approval of the Fire Fighting Scheme be granted on a prioritybasis.

The Fire Department informed the Developer vide letter dated28.03.2014 that the deficiencies in the application for Fire NOC had notbeen cured. The Developer was granted a further period of 15 days’ tocure the defects, failing which, its application would be deemed to berejected.

The Developer submitted revised drawings as per the NBC FireScheme alongwith its letter dated 18.08.2014. This letter was receivedin the office of the Municipal Corporation on 13.10.2014, as perendorsement on the said letter.

18.11 On 27.11.2014, the Director, Haryana Fire Service grantedapproval to the Fire Fighting Scheme subject to the conditions mentionedtherein. The computation of the period for handing over possession wouldbe computed from this date. The Commitment Period of 42 months plusthe Grace Period of 6 months from 27.11.2014, would be 27.11.2018, asbeing the relevant date for offer of possession.

The aforesaid chronology for obtaining Fire NOC would indicatea delay of approximately 7 months in obtaining the Fire NOC by theDeveloper.

19. Whether the terms of the Apartment Buyer’s Agreementare one-sided?

The second issue which has been raised by the Apartment Buyersisthat the Agreement in this case, contains wholly one-sided clauses, andwould not be bound by its terms.

19.1 We have carefully perused the terms of the Agreement, andan analysis of the same reveals that :

a)Under the construction-linked plan, Clause 6 provided thatthe apartment buyers would be required to deposit 20% ofthe sale consideration within 45 days of booking of theapartment.

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Ab)Clause 7.4 of the Agreement provides that if there is a delayin payment of an instalment, the apartment buyer would berequired to pay Interest on every delayed payment of suchinstalment @ 20% S.I.p.a.

c)Clause 13.2 of the Agreement provides that if the allotteeBfails, ignores or neglects to take possession of the saidApartment in accordance with the Notice of Possession,the allottee shall be liable to pay “Holding Charges”on thesuper area @ Rs.7.5 per sq. ft. per month.

d)In contrast, Clause 13.3 of the Agreement provides that ifCthe Company fails to offer possession by the end of theGrace Period i.e. 42+6 months, it would be liable to payDelay Compensation@ Rs.7.5 per sq. ft. of the super areafor every month of delay.

Delay compensation at Rs. 7.5 per sq. ft. works out toDapproximately 0.9% to 1 % Interest per annum.The priceper sq. ft of an apartment under the Apartment Buyer’sAgreement was Rs. 10,350/- per sq. ft. The compensationpayable for delay was Rs. 7.5 per sq. ft. The compensationpayable by the Developer for delay in offering possessionworks out to :

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7.5___x 100 x 12= 0.9 % to 1% p.a.10,350

e)Clause 13.5 provides that the allottee may opt fortermination, only after 42 months from the date of issuanceFof Fire NOC + 6 months’ Grace Period, plusa further periodof 12 months.

The Delay Compensation would be payable to the allotteeonly if the termination was “validly opted”. Thecompensation was limited to a fixed period of 12 monthsGonly, and that no other claim whatsoever, whether monetaryor otherwise, was payable by the Developer.

f)Clause 13.8 of the Agreement provides that the allotteeshall be deemed to have waived all its claims in respect ofthe area, specifications, quality, construction, any other H

provision in the apartment against the Developer upon takingpossession of the apartment.

g)Clause 21 provides for termination of the Agreement andforfeiture of earnest money by the Developer, if the allotteeneglects or fails to make timely payments as stipulated inthe Agreement, or fails to exercise the options offered bythe Developer.

Clause 21.3 provides that upon such termination, the AppellantCompany shall be under no obligation, except to refund the amountsalready paid by the allottee, without any interest, and after forfeiting anddeducting the earnest money, interest on delayed payments, brokerage /commission / charges, service tax and other amounts due and payable toit. The principal amount after the aforesaid deductions are made, wouldbe refunded at an uncertain future date i.e. after the Developer had soldthe apartment allotted to the complainant.

In contrast, the allottee is given a very limited right to cancel theAgreement solely in the event of the clear and unambiguous failure ofthe warranties of the Company, which leads to frustration of theAgreement on that account. In such case, the allottee will be entitled toa refund of the instalments actually paid, along with interest @ 8% p.a.within a period of 90 days from the date of determination to this effect.No other claim, whatsoever, monetary or otherwiseshall lie against theCompany.

19.2 The aforesaid clauses reflect the wholly one-sided terms ofthe Apartment Buyer’s Agreement, which are entirelyloaded in favourof the Developer, and against the allottee at every step.

The terms of the Apartment Buyer’s Agreement are oppressiveand wholly one-sided, and would constitute an unfair trade practice underthe Consumer Protection Act, 1986.

19.3 Section 2(1)(c) of the Consumer Protection Act, 1986 definesa ‘complaint’ as :

“2.(1)(c) “complaint” means any allegation in writing made by acomplainant that –

(i) any unfair trade practice or a restrictive trade practice hasbeen adopted by any trader or service provider; A

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A(ii) the goods bought by him or agreed to be bought by him sufferfrom one or more defects.

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BSection 2(1)(g) of the Act defines the expression “deficiency” toinclude any fault, shortcoming or inadequacy in the quality, nature andmanner of performance which is required to be maintained under law, orin pursuance of a contract, or in relation to a ‘service’.

The term “service” has been defined by S. 2(1)(o) to include aCservice of any description which is made available to potential users.S. 2(1)(o) was amended by Act 50 of 1993 w.e.f. from 18.06.1993to include “housing construction” within the purview of “service”. Theamended Section 2(1)(o) reads as follows :- “2(1)(o) “service” means service of any description which is madeDavail-able to potential users and includes, but not limited to, theprovision of facilities in connection with banking, financinginsurance, transport, processing, supply of electrical or other energy,board or lodging or both, housing construction, entertainment,amusement or the purveying of news or other information, butdoes not include the rendering of any service free of charge orEunder a contract of personal service;”

In Lucknow Development Authority v. M.K. Gupta,[3] this Courtdiscussed the legislative intent of including “housing construction” withinFthe ambit of ‘service’ as :

“2. …. A scrutiny of various definitions such as ‘consumer’,‘service’, ‘trader’, ‘unfair trade practice’ indicates that legislaturehas attempted to widen the reach of the Act. Each of thesedefinitions are in two parts, one, explanatory and the otherGexplanatory. The explanatory or the main part itself usesexpressions of wide amplitude indicating clearly its wide sweep,then its ambit is widened to such things which otherwise wouldhave been beyond its natural import. Manner of construing aninclusive clause and its widening effect has been explained in H3 (1994) 1 SCC 243.

Dilworth v. Commissioner of Stamps [1899 AC 99 : 15 TLR 61]as under:

“‘include’ is very generally used in interpretation clauses inorder to enlarge the meaning of the words or phrases occurringin the body of the statute, and when it is so used these wordsor phrases must be construed as comprehending, not only suchthings as they signify according to their natural, import, butalso those things which the definition clause declares that theyshall include.”

It has been approved by this Court in Regional Director,Employees’ State Insurance Corpn. v. High Land Coffee Worksof P.F.X. Saldanha and Sons [(1991) 3 SCC 617] ; CIT v. TajMahal Hotel, Secunderabad [(1971) 3 SCC 550] and State ofBombay v. Hospital Mazdoor Sabha [AIR 1960 SC 610 : (1960) 2SCR 866 : (1960) 1 LLJ 251] . The provisions of the Act thushave to be construed in favour of the consumer to achieve thepurpose of enactment as it is a social benefit oriented legislation.The primary duty of the court while construing the provisions ofsuch an Act is to adopt a constructive approach subject to that itshould not do violence to the language of the provisions and is notcontrary to the attempted objective of the enactment.

6….. As pointed out earlier the entire purpose of widening thedefinition is to include in it not only day to day buying and sellingactivity undertaken by a common man but even such activitieswhich are otherwise not commercial in nature yet they partake ofa character in which some benefit is conferred on the consumer.Construction of a house or flat is for the benefit of person forwhom it is constructed. He may do it himself or hire services of abuilder or contractor. The latter being for consideration is serviceas defined in the Act. Similarly when a statutory authority developsland or allots a site or constructs a house for the benefit of commonman it is as much service as by a builder or contractor. The one iscontractual service and other statutory service. If the service isdefective or it is not what was represented then it would be unfairtrade practice as defined in the Act. Any defect in constructionactivity would be denial of comfort and service to a consumer.When possession of property is not delivered within stipulatedperiod the delay so caused is denial of service. Such disputes or AB

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A person who applies for allotment of a building site or for a flatconstructed by the development authority or enters into anagreement with a builder or a contractor is a potential user andnature of transaction is covered in the expression ‘service of anydescription’. It further indicates that the definition is not exhaustive.CThe inclusive clause succeeded in widening its scope but notexhausting the services which could be covered in earlier part. Soany service except when it is free of charge or under a constraintof personal service is included in it. Since housing activity is aservice it was covered in the clause as it stood before 1993.”

D19.4 Clause 2(1)(r) of the Consumer Protection Act, 1986 defines“unfair trade practice” as follows :- “2(1)(r) “unfair trade practice” means a trade practice which, forthe purpose of promoting the sale, use or supply of any goods orfor the provision of any service, adopts any unfair method or unfairEor deceptive practice including any of the following practices,namely:- ’’…….…

The said definition is an inclusive one, as held by this Court inFPioneer Urban Land & Infrastructure Ltd. v.Govindan Raghavan,[4]whereinthis Court speaking through one of us (J. Indu Malhotra) held :- “6.1 …. The inordinate delay in handing over possession of theflat clearly amounts to deficiency of service. In FortuneInfrastructure v. Trevor D’Lima [Fortune Infrastructure v. TrevorGD’Lima, (2018) 5 SCC 442 : (2018) 3 SCC (Civ) 1] , this Courtheld that a person cannot be made to wait indefinitely for possessionof the flat allotted to him, and is entitled to seek refund of theamount paid by him, along with compensation.

6.2. The respondent flat purchaser has made out a clear case ofdeficiency of service on the part of the appellant builder. Therespondent flat purchaser was justified in terminating the apartmentbuyer’s agreement by filing the consumer complaint, and cannotbe compelled to accept the possession whenever it is offered bythe builder. The respondent purchaser was legally entitled to seekrefund of the money deposited by him along with appropriatecompensation.

6.3 The National Commission in the impugned order dated 23-10-2018 [Geetu Gidwani Verma v. Pioneer Urban Land andInfrastructure Ltd., 2018 SCC OnLine NCDRC 1164] held thatthe clauses relied upon by the builder were wholly one-sided, unfairand unreasonable, and could not be relied upon. The LawCommission of India in its 199th Report, addressed the issue of“Unfair (Procedural & Substantive) Terms in Contract”. The LawCommission inter alia recommended that a legislation be enactedto counter such unfair terms in contracts. In the draft legislationprovided in the Report, it was stated that:

“… a contract or a term thereof is substantively unfair if suchcontract or the term thereof is in itself harsh, oppressive orunconscionable to one of the parties.”

6.8. A term of a contract will not be final and binding if it is shownthat the flat purchasers had no option but to sign on the dottedline, on a contract framed by the builder. The contractual terms ofthe agreement dated 8-5-2012 are ex facie one-sided, unfair andunreasonable. The incorporation of such one-sided clauses in anagreement constitutes an unfair trade practice as per Section2(1)(r) of the Consumer Protection Act, 1986 since it adopts unfairmethods or practices for the purpose of selling the flats by thebuilder.”

19.5 In a similar case, this Court in Wg. Cdr. Arifur RahmanKhan & Others v. DLF Southern Homes Pvt. Ltd.,[5] affirmed the viewtaken in Pioneer (supra), and held that the terms of the agreementauthored by the Developer does not maintain a level platform betweenthe Developer and the flat purchaser. The stringent terms imposed onthe flat purchaser are not in consonance with the obligation of the ABC

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ADeveloper to meet the timelines for construction and handing overpossession, and do not reflect an even bargain. The failure of theDeveloper to comply with the contractual obligation to provide the flatwithin the contractually stipulated period, would amount to a deficiencyof service. Given the one-sided nature of the Apartment Buyer’sAgreement, the consumer fora had the jurisdiction to award just andBreasonable compensation as an incident of the power to direct removalof deficiency in service.

19.6 Section 14 of the 1986 Act empowers the Consumer Fora toredress the deficiency of service by issuing directions to the Builder, andcompensate the consumer for the loss or injury caused by the oppositeCparty, or discontinue the unfair or restrictive trade practices.

19.7 We are of the view that the incorporation of such one-sidedand unreasonable clauses in the Apartment Buyer’s Agreementconstitutes an unfair trade practice under Section 2(1)(r) of the ConsumerProtection Act. Even under the 1986 Act, the powers of the consumerDfora were in no manner constrained to declare a contractual term asunfair or one-sided as an incident of the power to discontinue unfair orrestrictive trade practices. An “unfair contract” has been defined underthe 2019 Act, and powers have been conferred on the State ConsumerFora and the National Commission to declare contractual terms whichEare unfair, as null and void. This is a statutory recognition of a powerwhich was implicit under the 1986 Act.

In view of the above, we hold that the Developer cannot compelthe apartment buyers to be bound by the one-sided contractual termscontained in the Apartment Buyer’s Agreement.

F20. Whether primacy to be given to RERAover theConsumer Protection Act

20.1 The Consumer Protection Act, 1986 was enacted to protectthe interests of consumers, and provide a remedy for better protectionof the interests of consumers, including the right to seek redressal againstGunfair trade practices or unscrupulous exploitation.

The Statement of Objects and Reasons of the Consumer ProtectionBill, 1986 reads as :

“STATEMENT OF OBJECTS AND REASONS

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The Consumer Protection Bill, 1986 seeks to provide for betterprotection of the interests of consumers and for the purpose, tomake provision for the establishment of Consumer councils andother authorities for the settlement of consumer disputes and formatter connected therewith.

2. It seeks, inter alia, to promote and protect the rights ofconsumers such as:—

(a) the right to be protected against marketing of goods which arehazardous to life and property; (b) the right to be informed about the quality, quantity, potency,purity, standard and price of goods to protect the consumer againstunfair trade practices;

(c) the right to be assured, wherever possible, access to anauthority of goods at competitive prices; (d) the right to be heard and to be assured that consumers interestswill receive due consideration at appropriate forums; (e) the right to seek redressal against unfair trade practices orunscrupulous exploitation of consumers; and (f) right to consumer education.

3. These objects are sought to be promoted and protected by theConsumer Protection Council to be established at the Central andState level.

4. To provide speedy and simple redressal to consumer disputes,a quasi-judicial machinery is sought to be set up at the district,State and Central levels. These quasi-judicial bodies will observethe principles of natural justice and have been empowered to giverelief of a specific nature and to award, wherever appropriate,compensation to consumers. Penalties for non-compliance of theorders given by the quasi-judicial bodies have also been provided.”

20.2 Section 3 of the Consumer Act provides that the remediesunderthe Act are in addition to, and not in derogation of any other lawapplicable. Section 3 reads as :

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A“3. Act not in derogation of any other law.—The provisions ofthis Act shall be in addition to and not in derogation of the provisionsof any other law for the time being in force.”

In Secretary, Thirumurugan Cooperative Agricultural CreditSociety v. M. Lalitha (dead) through LRs and others,[6] this CourtheldBthat:

“11. From the Statement of Objects and Reasons and the schemeof the 1986 Act, it is apparent that the main objective of the Act isto provide for better protection of the interest of the consumerand for that purpose to provide for better redressal, mechanismCthrough which cheaper, easier, expeditious and effective redressalis made available to consumers. To serve the purpose of the Act,various quasi-judicial forums are set up at the district, State andnational level with wide range of powers vested in them. Thesequasi-judicial forums, observing the principles of natural justice,are empowered to give relief of a specific nature and to award,Dwherever appropriate, compensation to the consumers and toimpose penalties 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 inEforce. 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, positively andpurposefully in the context of the present case to give meaning toadditional/extended jurisdiction, particularly when Section 3 seeksFto provide remedy under 19 the Act in addition to other remediesprovided under other Acts unless there is a clear bar.”

In National Seeds Corporation Limited v. M. MadhusudhanReddy,[7] the jurisdiction of the District Consumer forum was challengedon the ground that there was an arbitration clause in the AgreementGbetween the parties. It was contended that the provisions of the SeedsAct, 1966 would prevail over the Consumer Protection Act. Relevantextracts of the ruling are extracted hereinunder :

6 (2004) 1 SCC 305.7 (2012) 2 SCC 506.H

“57. It can thus be said that in the context of farmers/growersand other consumers of seeds, the Seeds Act is a special legislationinsofar as the provisions contained therein ensure that thoseengaged in agriculture and horticulture get quality seeds and anyperson who violates the provisions of the Act and/or the Rules isbrought before the law and punished. However, there is noprovision in that Act and the Rules framed thereunder forcompensating the farmers, etc. who may suffer adversely due toloss of crop or deficient yield on account of defective seedssupplied by a person authorised to sell the seeds. That apart, thereis nothing in the Seeds Act and the Rules which may give anindication that the provisions of the Consumer Protection Act arenot available to the farmers who are otherwise covered by thewide definition of “consumer” under Section 2(1)(d) of theConsumer Protection Act. As a matter of fact, any attempt toexclude the farmers from the ambit of the Consumer ProtectionAct by implication will make that Act vulnerable to an attack ofunconstitutionality on the ground of discrimination and there is noreason why the provisions of the Consumer Protection Act shouldbe so interpreted.

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62. Since the farmers/growers purchased seeds by paying a priceto the appellant, they would certainly fall within the ambit of Section2(1)(d)(i) of the Consumer Protection Act and there is no reasonto deny them the remedies which are available to other consumersof goods and services.”

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64. According to the learned counsel for the appellant, if thegrowers had applied for arbitration then in terms of Section 8 ofthe Arbitration and Conciliation Act the dispute arising out of thearbitration clause had to be 23 referred to an appropriate arbitratorand the District Consumer Forums were not entitled to entertaintheir complaint. This contention represents an extension of themain objection of the appellant that the only remedy available tothe farmers and growers who claim to have suffered loss onaccount of use of defective seeds sold/supplied by the appellantwas to file complaints with the Seed Inspectors concerned fortaking action under Sections 19 and/or 21 of the Seeds Act.

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SUPREME COURT REPORTS

A66. The remedy of arbitration is not the only remedy available toa grower. Rather, it is an optional remedy. He can either seekreference to an arbitrator or file a complaint under the ConsumerProtection Act. If the grower opts for the remedy of arbitration,then it may be possible to say that he cannot, subsequently, filecomplaint under the Consumer Protection Act. However, if heBchooses to file a complaint in the first instance before thecompetent Consumer Forum, then he cannot be denied relief byinvoking Section 8 of the Arbitration and Conciliation Act, 1996.Moreover, the plain language of Section 3 of the ConsumerProtection Act makes it clear that the remedy available in thatCAct is in addition to and not in derogation of the provisions of anyother law for the time being in force.”

Subsequently, the judgments in Thirumurugan CooperativeAgricultural Society (Supra) and National Seeds were followed inVirender Jain v. Alaknanda Cooperative Group Housing SocietyDLimited and others.[8]

20.3 Various judgments of this Court have upheld the applicabilityof provisions of Consumer Protection Act as an additional remedy, despitethe existence ofremedies under special statutes, including the Arbitrationand Conciliation Act, 1996. In Emaar MGF Land Ltd. v. Aftab Singh,[9]Ethis Court has held that the remedy under the Consumer Protection Act,1986 is confined to the Complaint filed by a Consumer as defined by theAct, for defects and deficiency caused by the service provider. Theexistence of an arbitration clause was not a ground to restrain theConsumer Fora from proceeding with the consumer complaint.

F20.4 We will now consider the provisions of the RERA Act, whichwas brought into force on 01.05.2016.

The Statement of Objects and Reasons of the RERA Act, 2016read as follows :

“THE STATEMENT OF OBJECTS AND REASONSG

The real estate sector plays a catalytic role in fulfilling the needand demand for housing and infrastructure in the country. Whilethis sector has grown significantly in recent years, it has been 8 (2013) 9 SCC 383.H9 (2019) 12 SCC 751.

largely unregulated, with absence of professionalism andstandardisation and lack of adequate consumer protection. Thoughthe Consumer Protection Act, 1986 is available as a forum to thebuyers in the real estate market, the recourse is only curative andis not adequate to address all the concerns of buyers and promotersin that sector.The lack of standardisation has been a constraint tothe healthy and orderly growth of industry. Therefore, the needfor regulating the sector has been emphasised in various forums.

In view of the above, it becomes necessary to have a Centrallegislation, namely, the Real Estate (Regulation and Development)Bill, 2013 in the interests of effective consumer protection,uniformity and standardisation of business practices and thetransactions in the real estate sector. The proposed Bill providesfor the establishment of the Real Estate Regulatory Authority (theAuthority) for regulation and promotion of real estate sector andto ensure sale of plot, apartment or building, as the case may be,in an efficient and transparent manner and to protect the interestof consumers in real estate sector and establish the Real EstateAppellate Tribunal to hear appeals from the decisions, directionsor orders of the Authority.

20.5 Section 18 of the RERA Act, 2016 provides the remedy ofrefund with interest and compensation to allottees, when a Developerfails to complete the construction or give possession as per the Agreementof Sale. The remedies under Section 18 are “without prejudice to anyother remedy available”.

20.6 Section 71 of the RERA Act empowers the RERA Authorityto determine compensation payable under Sections 12, 14, 18 and 19 ofthe Act. The proviso to Section 71 provides that a consumer has theright to withdraw its complaint before the consumer fora in respect ofmatters covered under Sections 12, 14, 18 and 19 of the Act, and file thesame before the RERA.

Section 71 reads as :

“71. Power to adjudicate.– (1) For the purpose of adjudgingcompensation under sections 12, 14, 18 and section 19, theAuthority shall appoint, in consultation with the appropriateGovernment, one or more judicial officer as deemed necessary, AB

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Awho is or has been a District Judge to be an adjudicating officerfor holding an inquiry in the prescribed manner, after giving anyperson concerned a reasonable opportunity of being heard:

Provided that any person whose complaint in respect of matterscovered under sections 12, 14, 18 and section 19 is pending beforeBthe Consumer Disputes Redressal Forum or the ConsumerDisputes Redressal Commission or the National ConsumerRedressal Commission, established under section 9 of theConsumer Protection Act, 1986 (68 of 1986), on or before thecommencement of this Act, he may, with the permission of suchForum or Commission, as the case may be, withdraw the complaintCpending before it and file an application before the adjudicatingofficer under this Act”.

20.7 Section 79 of the RERA Act bars the jurisdiction only of civilcourts in respect of matters which an authority constituted under theRERA Act is empowered to adjudicate on.D

Section 79 reads as :

“79. Bar of jurisdiction: No civil court shall have jurisdiction toentertain any suit or proceeding in respect of any matter whichthe Authority or the adjudicating officer or the Appellate TribunalEis empowered by or under this Act to determine and no injunctionshall be granted by any court or other authority in respect of anyaction taken or to be taken in pursuance of any power conferredby or under this Act.”

20.8 Section 88 of the RERA Act is akin to Section 3 of theFConsumer Protection Act, and provides that the provisions of the RERAAct shall apply in in addition to and not in derogation of other applicablelaws. Section 88 reads as :

“88. Application of other law not barred: The provisions ofthis Act shall be in addition to, and not in derogation of, the provisionsof any other law for the time being in force.”G

20.9 An allottee may elect or opt for one out of the remediesprovided by law for redressal of its injury or grievance. An election ofremedies arises when two concurrent remedies are available, and theaggrieved party chooses to exercise one, in which event he loses theright to simultaneously exercise the other for the same cause of action.H

20.10 The doctrine of election was discussed in A.P. StateFinancial Corporation v. M/s GAR Re-rolling Corporation,[10] in thefollowing words :

“15. The Doctrine of Election clearly suggests that when tworemedies are available for the same relief, the party to whom thesaid remedies are available has the option to elect either of thembut that doctrine would not apply to cases where the ambit andscope of the two remedies is essentially different. To hold otherwisemay lead to injustice and inconsistent results. …. Since, theCorporation must be held entitled and given full protection by theCourt to recover its dues it cannot be bound down to adopt onlyone of the two remedies provided under the Act. In our opinionthe Corporation can initially take recourse to Section 31 of theAct but withdraw or abandon it at any stage and take recourse tothe provisions of Section 29 of the Act, which section deals withnot only the rights but also provides a self-contained remedy tothe Corporation for recovery of its dues. If the Corporation choosesto take recourse to the remedy available under Section 31 of theAct and pursues the same to the logical conclusion and obtains anorder or decree, it may thereafter execute the order or decree, inthe manner provided by Section 32(7) and (8) of the Act. TheCorporation, however, may withdraw or abandon the proceedingsat that stage and take recourse to the provisions of Section 29 ofthe Act. A ‘decree’ under Section 31 of the Act not being a moneydecree or a decree for realisation of the dues of the Corporation,as held in Gujarat State Financial Corpn. v. Naatson Mfg. Co. P.Ltd. [(1979) 1 SCC 193, 198 : AIR 1978 SC 1765, 1768] recourseto it cannot debar the Corporation from taking recourse to theprovisions of Section 29 of the Act by not persuing the decree ororder under Section 31 of the Act, in which event the order madeunder Section 31 of the Act would serve in aid of the relief availableunder Section 29 of the Act

16. The doctrine of election, as commonly understood, would, thus,not be attracted under the Act in view of the express phraseologyused in Section 31 of the Act, viz., “without prejudice to theprovisions of Section 29 of this Act”. While the Corporation cannotsimultaneously pursue the two remedies, it is under no disability to ABC

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Atake recourse to the rights and remedy available to it under Section29 of the Act even after an order under Section 31 has beenobtained but without executing it and withdrawing from thoseproceedings at any stage. The use of the expression “withoutprejudice to the provisions of Section 29 of the Act” in Section 31cannot be read to mean that the Corporation after obtaining aBfinal order under Section 31 of the Act from a court of competentjurisdiction, is denuded of its rights under Section 29 of the Act.To hold so would render the above-quoted expression redundantin Section 31 of the Act and the courts do not lean in favour ofrendering words used by the Legislature in the statutory provisionsCredundant. The Corporation which has the right to make the choicemay make the choice initially whether to proceed under Section29 of the Act or Section 31 of the Act, but its rights under Section29 of the Act are not extinguished, if it decides to take recourse tothe provisions of Section 31 of the Act. It can abandon theproceedings under Section 31 of the Act at any stage, includingDthe stage of execution, if it finds it more practical, and may initiateproceedings under Section 29 of the Act.”

The doctrine of election is based on the rule of estoppel. In P.R.Deshpande v. Maruti Balaram Haibatti,[11] it was held that :

E“8. The doctrine of election is based on the rule of estoppel —the principle that one cannot approbate and reprobate inheres init. The doctrine of estoppel by election is one of the species ofestoppel in pais (or equitable estoppel) which is a rule in equity.By that rule, a person may be precluded by his actions or conductor silence when it is his duty to speak, from asserting a right whichFhe otherwise would have had. (vide Black’s Law Dictionary, 5thEdn.)”

In National Insurance Co. Ltd. v. Mastan & Ors.,[12] claims forcompensation were filed both under the Workmen’s Compensation Act,1923 and the Motor Vehicles Act, 1988. This Court held that the doctrineGof election was incorporated in Section 167 of the Motor Vehicles Act.The relevant extract from the judgment reads as follows :

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‘23. The “doctrine of election” is a branch of “rule of estoppel”,in terms whereof a person may be precluded by his actions orconduct or silence when it is his duty to speak, from asserting aright which he otherwise would have had. The doctrine of electionpostulates that when two remedies are available for the samerelief, the aggrieved party has the option to elect either of thembut not both. Although there are certain exceptions to the samerule but the same has no application in the instant case.

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27. The first respondent having chosen the forum under the 1923Act for the purpose of obtaining compensation against his employercannot now fall back upon the provisions of the 1988 Act therefor,inasmuch as the procedure laid down under both the Acts aredifferent save and except those which are covered by Section143 thereof.

33. On the establishment of a Claims Tribunal in terms of Section165 of the Motor Vehicles Act, 1988, the victim of a motor accidenthas a right to apply for compensation in terms of Section 166 ofthat Act before that Tribunal. On the establishment of the ClaimsTribunal, the jurisdiction of the civil court to entertain a claim forcompensation arising out of a motor accident, stands ousted bySection 175 of that Act. Until the establishment of the Tribunal,the claim had to be enforced through the civil court as a claim intort. The exclusiveness of the jurisdiction of the Motor AccidentsClaims Tribunal is taken away by Section 167 of the MotorVehicles Act in one instance, when the claim could also fall underthe Workmen’s Compensation Act, 1923. That section providesthat death or bodily injury arising out of a motor accident whichmay also give rise to a claim for compensation under the Workmen’sCompensation Act, can be enforced through the authorities underthat Act, the option in that behalf being with the victim or hisrepresentative. But Section 167 makes it clear that a claim couldnot be maintained under both the Acts.In other words, a claimantwho becomes entitled to claim compensation under both the MotorVehicles Act, 1988 and the Workmen’s Compensation Act, becauseof a motor vehicle accident has the choice of proceeding undereither of the Acts before the forum concerned. By confining the A

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Aclaim to the authority or the Tribunal under either of the Acts, thelegislature has incorporated the concept of election of remedies,insofar as the claimant is concerned. In other words, he has toelect whether to make his claim under the Motor Vehicles Act,1988 or under the Workmen’s Compensation Act, 1923. Theemphasis in the section that a claim cannot be made under bothBthe enactments, is a further reiteration of the doctrine of electionincorporated in the scheme for claiming compensation. Theprinciple “where, either of the two alternative Tribunals are opento a litigant, each having jurisdiction over the matters in dispute,and he resorts for his remedy to one of such Tribunals in preferenceCto the other, he is precluded, as against his opponent, from anysubsequent recourse to the latter” (see R. v. Evans [(1854) 3 E &B 363 : 118 ER 1178] ) is fully incorporated in the scheme ofSection 167 of the Motor Vehicles Act, precluding the claimantwho has invoked the Workmen’s Compensation Act from havingresort to the provisions of the Motor Vehicles Act, except to theDlimited extent permitted therein. The claimant having resorted tothe Workmen’s Compensation Act, is controlled by the provisionsof that Act subject only to the exception recognised in Section167 of the Motor Vehicles Act.”

E

In Transcore v. Union of India,[13] this Court considered theprovisions of the Securitisation and Reconstruction of Financial Assetsand Enforcement of Securities Interest Act, 2002 (“SARFAESI Act”)and the Recovery of Debts due to Banks and Financial Institutions Act,F1993 (“RDDB Act”), wherein it was held that there are three elementsof election viz. existence of two or more remedies, inconsistenciesbetween such remedies, and a choice of one of them. If any one of thethree elements is not there, the doctrine will not apply.

The judgment in Transcore was subsequently followed in MathewGVarghese v. M. Amritha Kumar,[14] where it was held that :

“46. A reading of Section 37 discloses that the application of theSARFAESI Act will be in addition to and not in derogation of the 13 (2008) 1 SCC 125.H14 (2014) 5 SCC 610.

provisions of the RDDB Act. In other words, it will not in anyway nullify or annul or impair the effect of the provisions of theRDDB Act. We are also fortified by our above statement of lawas the heading of the said section also makes the position clearthat application of other laws are not barred. The effect of Section37 would, therefore, be that in addition to the provisions containedunder the Sarfaesi Act, in respect of proceedings initiated underthe said Act, it will be in order for a party to fall back upon theprovisions of the other Acts mentioned in Section 37, namely, theCompanies Act, 1956, the Securities Contracts (Regulation) Act,1956, the Securities and Exchange Board of India Act, 1992, theRecovery of Debts Due to Banks and Financial Institutions Act,1993, or any other law for the time being in force.”

20.11 In a recent judgment delivered by this Court in M/s ImperiaStructures Ltd. v. Anil Patni and Anr,[15] it was held that remedies underthe Consumer Protection Act were in addition to the remedies availableunder special statutes. The absence of a bar under Section 79 of theRERA Act to the initiation of proceedings before a fora which is not acivil court, read with Section 88 of the RERA Act makes the positionclear. Section 18 of the RERA Act specifies that the remedies are “withoutprejudice to any other remedy available”. We place reliance on thisjudgment, wherein it has been held that :

“31. Proviso to Section 71(1) of the RERA Act entitles acomplainant who had initiated proceedings under the CP Act beforethe RERA Act came into force, to withdraw the proceedings underthe CP Act with the permission of the Forum or Commission andfile an appropriate application before the adjudicating officer underthe RERA Act. The proviso thus gives a right or an option to thecomplainant concerned but does not statutorily force him towithdraw such complaint nor do the provisions of the RERA Actcreate any mechanism for transfer of such pending proceedingsto authorities under the RERA Act. As against that the mandatein Section 12(4) of the CP Act to the contrary is quite significant.

32. Again, insofar as cases where such proceedings under theCP Act are initiated after the provisions of the RERA Act came AB

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Ainto force, there is nothing in the RERA Act which bars suchinitiation. The absence of bar under Section 79 to the initiation ofproceedings before a fora which cannot be called a civil courtand express saving under Section 88 of the RERA Act, make theposition quite clear. Further, Section 18 itself specifies that theremedy under the said section is “without prejudice to any otherBremedy available”. Thus, the parliamentary intent is clear that achoice or discretion is given to the allottee whether he wishes toinitiate appropriate proceedings under the CP Act or file anapplication under the RERA Act.”

C21. Whether the Apartment Buyers are entitled to terminatethe Agreement, or refund of the amount deposited with DelayCompensation.

21.1 The issue which now arises is whether the apartment buyersare bound to accept the offer of possession made by the DeveloperDwhere the Occupation Certificate has been issued, along with the paymentof Delay Compensation, or are entitled to terminate the Agreement.

E

The factum of delay in completing the construction and makingthe offer of possession is an undisputed fact in this case.

21.2 In the present case, the allottees before this Court in thepresent batch of appeals, can be categorised into two categories:-

i)Apartment Buyers whose allotments fall in Phase 1 of theproject comprised in Towers A6 to A10, B1 to B4, and C3Fto C7, where the Developer has been granted occupationcertificate, and offer of possession has been made, areenlisted in Chart A;

ii)Apartment Buyers whose allotments fall in Phase 2 of theproject, where the allotments are in Towers A1 to A5, B5Gto B8, C8 to C11, where the Occupation Certificate has notbeen granted so far, are set out in Chart B below.

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CHART A

APARTMENTS WHERE O.C. OBTAINED BY DEVELOPER

CHART B

APARTMENTS WHERE NO O.C. AVAILABLE EVEN AS ON

DATE

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Chart A allottees

(i) We are of the view that allottees at Serial Nos. 1 and 2 inGChartA are obligated to take possession of the apartments, since theconstruction was completed, and possession offered on 28.06.2019, afterthe issuance of Occupation Certificate on 31.05.2019. The Developerishowever obligated topay Delay Compensation for the period of delaywhich has occurred from 27.11.2018 till the date of offer of possessionHwas made to the allottees.

A(ii) Insofar as the allottee at Serial No.3 in Chart A is concerned,he has filed Civil Appeal No.3064 of 2020 under Section 62 of theInsolvency and Bankruptcy Code, 2016 before this Court. We wereinformed by theCounsel for the allottee that the Developer had filed anaffidavit dated 16.09.2019 before the National Company Law Tribunal(“NCLT”) stating that it was willing to refund the principal amount ofBRs.1,59,29,016/- in four equal instalments, and had produced photocopyof the cheques. The relevant portion of the affidavit filed by the Developerbefore the NCLT is extracted hereunder :- A

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“3. Without prejudice to contentions and averments raised duringthe course of arguments by the Corporate Debtor, the CorporateCDebtor explored the possibility of the settlement with the Petitionerand had offered to pay the entire principal amount i.e. 1,59,29,016/- in a time bound manner by way of 4 equal instalments, wherein1st instalment starting from 16.09.2019. Copy of the Cheques bythe Corporate Debtor for payment of the principal amount in fullis annexed herewith and marked as Annexure-A.”D

Despite the said Undertaking given before the NCLT, theDeveloper has failed to refund even the principal amount so far.

We direct the Developer to refund the amount deposited by thesaid Appellant within a period 4 weeks from the date of this judgmentwith interest @ 9% p.a. from 16.09.2019 (date of the affidavit filed byEthe Developer before the NCLT). If this direction is not complied with,the Developer will be liable to pay Default Interest @12% p.a. on theentire amount.

Chart B allottees

(i) Insofar as the allottees in Chart B are concerned, they haveFpaid part consideration, in most cases up to the 4th instalment till 2017,when they found that there was no progress being made in respect ofthe Towers in which the apartments had been allotted to them.It is anadmitted position that Occupation Certificate for Towers A1, A2, A3,B7, C9 and C11, in which the allotments have been made for this categoryGhas not been issued by the Municipal Corporation.

The apartments have not been ready for allotment even as on30.06.2020, as per the date fixed before the RERA Authority.

(ii) The allottees submitted that they were facing great hardshipsince they had obtained loans from Banks for purchasing theseHapartments, and were paying high rates of interest. In 2017, when they realised that there was no construction activity in progress, they wereconstrained to file consumer complaints before the National Commission,and then discontinued payment of further instalments.

(iii) The Developer made an alternate offerof allotment ofapartments in Phase 1 of the project. The allottees are however notbound to accept the same because of the inordinate delay in completingthe construction of the Towers where units wereallotted to them. TheOccupation Certificate is not available even as on date, which clearlyamounts to deficiency of service. The allottees cannot be made to waitindefinitely for possession of the apartments allotted to them, nor canthey be bound to take the apartments in Phase 1 of the project. Theallottees have submitted that they have taken loans, and are paying highrates of interest to the tune of 7.9% etc. to the Banks.

Consequently, we hold that the allottees in ChartB are entitled torefund of the entire amount deposited by them.

(iv) In so far as awardof compensation by payment of Interest isconcerned, clause 13.4 of the Apartment Buyer’s Agreement providesthat the Developer shall be liable to pay the allottee compensationcalculated @ Rs. 7.5 per sq. ft. of the Super Area for every month ofdelay, after the end of the Grace Period. The compensation will be payableonly for a period of 12 months.

The Apartment Buyers in their Complaint filed before the NationalCommission made a prayer for refund of the amount deposited alongwithInterest @ 20% p.a. compounding quarterly till its realisation. TheApartment Buyers, in their submissions have stated that they haveobtained home loans on which Interest @ 7.90% p.a. is being paid, evenas on date.

We have considered the rival submissions made by both the parties.The Delay Compensation specified in the Apartment Buyer’s Agreementof Rs. 7.5 per sq. ft. which translates to 0.9% to 1% p.a. on the amountdeposited by the Apartment Buyer cannot be accepted as being adequatecompensation for the delay in the construction of the project. At thesame time, we cannot accept the claim of the Apartment Buyers forpayment of compound interest @ 20% p.a., which has no nexus withthe commercial realities of the prevailing market. We have also takeninto consideration that in Subodh Pawar v. IREO Grace, this Courtrecorded the statement of the Counsel for the Developer that the amountwould be refunded with Interest @ 10% p.a. A similar order was passed AB

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Ain the case of IREO v. Surendra Arora. However, the Order in thesecases were passed prior to the out-break of the pandemic.

We are cognizant of the prevailing market conditions as a resultof Covid–19 Pandemic, which have greatly impacted the constructionindustry.BIn these circumstances, it is necessary to balance the competinginterest of both parties. We think it would be in the interests of justiceand fairplay that the amounts deposited by the Apartment Buyers isrefunded with Interest @ 9% S.I. per annum from 27.11.2018 till thedate of payment of the entire amount.

CThe refund will be paid within a period of three months from thedate of this judgment. If there is any further delay, the Developer will beliable to pay default interest @ 12% S.I. p.a.

(v) The Developer shall not deduct the Earnest Money of 20%from the principal amount, or any other amount as mentioned in Clause21.3 of the Agreement, on account of the various defaults committed byDthe Developer, including the delay of over 7 months in obtaining the FireNOC.

(vi) In Civil Appeal No.9139 of 2019, we were informed by thelearned counsel that the Respondent had made a request for refund ofthe amount deposited since his wife was critical and required a lungEtransplant, to meet the huge expenses of hospitalisation. However, theDeveloper failed to refund the amount. During the pendency ofproceedings, the wife has since expired on 08.12.2020, and there arepending hospital bills to the tune of Rs.50 to 60 lakhs to be cleared.

We direct the Developer to refund the entire amountdeposited byFthis respondent alongwith Interest @ 9%S.I. p.a. within a period of 4weeksfrom the date of this judgment. The failure to refund the amountwithin 4 weekswill make the Developer liable for payment of defaultinterest @ 12% S.I. p.a. till the payment is made.

The Civil Appeals are accordingly disposed of, with no order as tocosts. All pending applications are disposed of.G

Ordered accordingly.

Devika Gujral

Appeal disposed of.

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