M/S Imperia Structures Ltd. vs Anil Patni And Anr. Etc. on 2 November, 2020


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Supreme Court of India

M/S Imperia Structures Ltd. vs Anil Patni And Anr. Etc. on 2 November, 2020

Author: Uday Umesh Lalit

Bench: Uday Umesh Lalit, Vineet Saran, S. Ravindra Bhat

                          CIVIL APPEAL NO. 3581-3590 OF 2020
                          @ CIVIL APPEAL DIARY NO.9796/2019
                          M/s Imperia Structures Ltd. vs. Anil Patni
                                                                                                1

                                                                                   REPORTABLE
                                                 IN THE SUPREME COURT OF INDIA
                                                  CIVIL APPELLATE JURISDICTION


                                               CIVIL APPEAL NO. 3581-3590 OF 2020
                                              (@ CIVIL APPEAL DIARY NO.9796/2019)



                          M/S. IMPERIA STRUCTURES LTD.                             …Appellant

                                                                       VERSUS

                          ANIL PATNI AND ANOTHER                                  …Respondents

                                                                       WITH

                                                 CIVIL APPEAL NO.3591 OF 2020
                                              (@ CIVIL APPEAL DIARY NO.9793/2019)



                                                                 JUDGMENT

Uday Umesh Lalit, J.

1. These appeals under Section 23 of the Consumer Protection Act,

1986 (hereinafter referred to as “the CP Act”) are directed against the
Signature Not Verified

Digitally signed by Dr.
Mukesh Nasa
common judgement and order dated 12.09.2018 passed by the National
Date: 2020.11.02
16:11:19 IST
Reason:

Consumer Disputes Redressal Commission, New Delhi (hereinafter
 Arising out of Civil Appeal Diary No. 9796 of 2019
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referred to as “the Commission”) in Consumer Case Nos.3011, 3012, 3013,

3014, 3015, 3016, 3017, 3018, 3019 and 3020 of 2017. The relevant facts

leading to the filing of the aforesaid Consumer Cases are almost identical

and for the present purposes the facts leading to the filing of Consumer

Case No.3011 of 2017 are set out in detail and the appeal arising therefrom

is taken as the lead appeal. The connected appeal  seeks to challenge the

judgment and order dated 09.08.2018 passed by the Commission in

Consumer Case No.1605 of 2017 and raises same issues of fact and law.

Delay in filing these appeals is condoned.

2. A Housing Scheme called “The ESFERA” in Sector 13C, Gurgaon,

Haryana (hereinafter referred to as ‘the Project’) was launched by the

Appellant sometime in 2011 and all the original Complainants booked their

respective apartments by paying the booking amounts and thereafter each

of them executed Builder Buyer Agreement (hereinafter referred to as “the

Agreement”) with the Appellant.

3. The Respondents in the leading appeal (hereinafter referred to as

“the Respondents”) booked Apartment No.1803 on the 18th Floor of Tower

No. “C” having super built up area 153.34 Sq. meters (1650 Sq. feet

approx.) @ Rs.36530.2 per Sq. meter (Rs.3395/- per Sq. foot). The basic

price was thus Rs.56,01,750/- to which additional charges such as

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preferential location charges for “corner” “park facing” and for “higher

floor” as well as charges for reserve parking, club membership and

development were added; the aggregate price being Rs.76,43,000/-.

4. Clauses 11.1 and 11.2 of the Agreement dated 30.11.2013 entered

into by the Respondents dealt with “delay due to reasons beyond the

control of the Developer/Company” and “failure to deliver possession due

to Government Rules, Orders, Notifications, etc.” respectively. Clause

11.4 of the Agreement was:-

“11.4 FAILURE TO DELIVER POSSESSION: REMEDY
TO THE COMPANY

The intending Allottee(s) agrees that in consequence of the
Developer/Company abandoning the Scheme or becoming
unable to give possession within three years from the date
of execution of this Agreement to such extended periods
as permitted under this Agreement, the
Developer/Company shall be entitled to terminate this
Agreement whereupon the Developer/Company’s liability
shall be limited to the refund of the amounts paid by the
Intending Allottee(s) with simple interest @ 9% per
annum for the period such amounts we relying with the
Developer/Company and to pay no other compensation
whatsoever. However, the Developer/Company may, at its
sole option and discretion, decide not to terminate this
Agreement in which event the Developer/Company agrees
to pay only to the original Intending Allottee(s) and not to
anyone else and only in cases other than those provided in
Clauses 11.1, 11.2, 11.3 and Clause 41 and subject to the
Intending Allottee(s) not being in default under any term
of this Agreement, compensation @ Rs.5/- per sq. ft. equal
to Rs.53.8/- Per Sq. Meter of the super area of the said
Apartment per month for the period of such delay beyond
three & half years or such extended periods as permitted
under this Agreement. The adjustment of such
compensation shall be done only at the time of settling the
final accounts for handing over/conveyancing the said
Apartment to the intending Allottee(s) first named in this
Agreement and not earlier.”
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Clause 41 of the Agreement was as under:-

“41. FORCE MAJURE

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

5. On 01.05.2016, the Real Estate (Regulation and Development) Act,

2016 (hereinafter referred to as, “the RERA Act”) came into force.

6. Over a period of time the Respondents had paid Rs.63,53,625/- out

of the agreed sum of Rs.76,43,000/-. However, even after four years there

were no signs of the Project getting completed. In the circumstances

Consumer Case No.3011 of 2017 was preferred by the Respondents on

11.10.2017 before the Commission submitting, inter alia,:-

“11. That the complainants regularly visited the site but
were surprised to see that the construction was never in
progress. No one was present on the site to address the
queries of the buyers/allotees/purchases including the
present complainant. The O.P despite taking a substantial
amount towards the consideration deliberately did not
construct the towers in which house of the complainant
was situated. The entire site seems to be an abandoned
piece of land with semi constructed structure. Despite a
delay of many months, the construction of the apartment
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has not been completed. It can hence be seen that the O.P
is deficient in renderings services and after extracting most
of the money from the buyers/allotees/purchases have
deliberately stopped the construction of the houses.

12. That it could be seen that the construction of the
residential unit ‘THE ESFERA’ in which the
buyers/allotees/purchasers flats were booked many months
back, with a promise by the O.P. to deliver the same within
42 months were never completed for the reasons best
known to the O.P., which clearly shows the ulterior motive
of the O.P. to extract money from the innocent buyers
fraudulently and also demonstrates the unfair trade
practices and restrictive trade practices under the ambit of
consumer protection act 1986.

16. That as per the clause 11.4 of the Buyer’s Agreement,
it was agreed by the O.P. that in case of any delay, the O.P.
shall pay to the buyers/allotees/purchasers, a
compensation at the rate of Rs.5/- per sq. ft. per month for
the period of the delay. It could be seen here that the O.P
has incorporated the Clause 11.4 in the one sided buyer’s
agreement and has offered to pay a meagre sum of Rs.5/-
per square feet for every month of delay if we calculate
the amount in terms of financial charges, it comes to
approximate @ 1.4% per annum rate of interest. Even
these charges are to be paid after 42 months of period that
is taken by the O.P to construct the houses as per the
buyer’s agreement. This shows that the O.P. has found a
cheap source of funding the commercial projects from the
hard earned savings and borrowed money of innocent
residential apartments/house buyers like the present
complainants. The O.P is raising funds at the interest rate
of mere 1.4% per annum and that too with initial 42
months of interest free duration.

30. That the value of goods/services along with
compensation claimed in the present complaint is above
one crore rupees hence the complainants are entitled to
invoke the pecuniary jurisdiction of this Hon’ble
Commission. The present complaint has been assessed for
a sum of Rs.1,16,94,579/- and requisite fee i.e. Rs.5000/-
by way of a demand draft payable to “THE REGISTRAR,
NCDRC New Delhi” is being paid with this complaint.

Value of goods and services Rs.76,43,000/-

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Compensation claimed Rs.40,51,579/-

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

a. Direct the O.P. to refund the entire amount collected
form the complainants towards the consideration of the
Flat along with interest @ 18% p.a. on the amount
paid by them from the date of each deposit of the
amount till it is actually returned to the complaints.

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

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

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

7. On 17.11.2017, the Project was registered with Haryana Real

Estate Regulatory Authority, Panchkula (hereinafter referred to as,

“Haryana Authority”). The letter dated 17.11.2017 issued by Haryana

Authority stated:-

“….. Your request for registration of Group Housing
Colony being developed over an area of 60460 Sq. Mtrs.
Situated in Sector-37-C, Village Gharoli Khurd and Basai,
Gurugram, Haryana with regard to License No.64 of 2011
dated 16.07.2011 issued by the Director, town and Country
Planning Department, Haryana, has been examined vis-à-
vis the provisions of the Real Estate (Regulation and
Development) Act, 2016 and HRERA Rules, 2017 and
accordingly a registration certificate is herewith issued
with following terms and conditions:-

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

(ii) The Promoter shall deposit seventy percent of the
amount to be realized from the allottees by the
Promoter in a separate account to be maintained in
a schedule bank to meet exclusively the cost of
land and construction purpose as per provision of
Section 4 (2) (L) (D);

(iii) The registration shall be valid for a period
commencing from 17.11.2017 to 31.12.2020;

(iv) The Promoter shall offer to execute and register a
conveyance deed in favour of the allotees or the
association of the allottees, as the case may be, of
the apartment, plot or building as the case may be,
or on the common areas as per provision of section
17
of the Act;

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

(vi) The Promoter shall pay all outstanding payment
i.e. land cost, construction cost, ground rent,
municipal or other local taxes, charges for water or
electricity, maintenance charges, including
mortgage loan and interest on mortgages or other
encumbrances and such other liabilities payable to
competent authorities, bank and financial
institutions which are related to the project until he
transfers the physical possession of the real estate
project to the allottees or the associations of
allottees, as the case may be;

(vii) The Promoter shall be responsible for providing
and maintaining the essential services, on
reasonable charges, till the taking over of the
maintenance of the project by the Municipal
Corporation, Gurugram or any other local
authority/Association of the Allottees, as the case
may be;

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(viii) The Promoter shall not accept a sum more than ten
percent of the cost of the apartment, plot or
building as the case may be, as an advance
payment or an application fee, from a person
without first entering into a written agreement for
sale with such person and register the said
agreement for sale, under any law for the time
being in force;

(ix) The Promoter shall adhere all the terms and
conditions of this registration and license,
sanctioned plans and other permissions issued by
Competent Authorities under the provision of any
other law for the time being in force as applicable
to the project. In case any deficiency in fee is
found at later stage and the same shall be
recoverable from the promoter/owner accordingly.

(x) The promoter shall return the amount with interest
in case, allotee wishes to withdraw from the
project due to discontinuance of promoter’s
business or promoter fails to give possession of the
apartment/plot in accordance with terms and
conditions of agreement for sale in terms of sub-
section(4) of Section-19. The promoter shall return
the entire amount with interest as well as the
compensation payable. The rate of interest payable
by the promoter to the allottee or by the allottee to
the promoter, as the case may be, shall be the State
Bank of India highest marginal cost of lending rate
plus two percent. The promoter shall adhere the
provisions of The Real Estate (Regulation and
Development) Act, 2016 and its Rules 2017 issued
by the State Government.

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

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

a) Details of the registration granted by the
authority;

b) Quarterly up-to-date list of number and type of
apartments for plots, as the case may be,
booked;

c) Quarterly up-to-date the list of number of
garages/covered parking lot booked;

d) Quarterly up-to-date the list of approvals taken
and the approvals which are pending
subsequent to commencement certificate;

e) quarterly up-to-date status of the project; and

f) such other information and documents as may
be specified by the regulations made by the
authority.

(xiii) The Promoter shall be responsible to make
available to the allottees, the following information
at the time of the booking and issue of allotment
letter:-

a) Sanctioned plans, layout, along with
specifications, approved by the competent
authority and other information as prescribed in
Rule 14 of 2017 framed under the provision of
the Real Estate (Regulation and Development)
Act
2016 and the same shall be displayed at the
site or such other place as may be specified by
the regulations made by the Authority.”

8. In its response dated 18.01.2018 to the aforestated Consumer Case

No.3011 of 2017, the Appellant challenged the jurisdiction of the

Commission inter alia, on the ground that the apartment having been

booked for commercial purposes, the Respondents would not come within

the definition of “the consumer” under Section 2(d) of the CP Act. No
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reference was however made to the fact that the Project had been

registered under the RERA Act. It was submitted:-

“8. That the contents and averments made in para 8 are
wrong and denied. It is denied that the date of possession
of the unit was 30th May, 2017. It is submitted that the
respondents had clearly mentioned the schedule for
possession of the said apartment/Unit was based upon its
present plans and estimates and subject to all just
exceptions, contemplates to complete the construction of
the said building/said apartment within a period of three
and half years for the date of execution of this agreement
unless there is delay or there shall be failure due to reasons
beyond the control of the company including Force-
Majeure events, delay due to compliance of new rules,
regulations, orders or notifications made/issued by
government or any other authorities with respect to
construction at the project site.

11. That the contents and averments made in Para 11 are
wrong and denied. It is pertinent to mention here that the
construction of the Tower in which the Unit of the
Complainant was allotted is in full Swing and is nearing
possession. The allegations levelled by the Complainant
are concocted & baseless.

9. In their replication, the Respondents submitted, inter alia,:-

“….. the buyer’s agreement was a fixed set of papers,
which was asked to be signed by the complainant and no
modification was entertained by the O.P. On request to
change the one sided clauses, it was told that the buyer’s
agreement has to be signed as it is and in case it is not
acceptable than the allotment will stand cancelled and
earnest money will be forfeited.”

10. Consumer Case No.3011 of 2017 was allowed by the Commission

by its judgement and order dated 12.09.2018. It was observed:-

“10. It is pertinent to note that the Developer has not filed
any evidence to support his contention that the delay
occurred due to force majeure events. In fact
demonetization, non-availability of contractual labour,
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delay in notifying approvals cannot be construed to be
force majeure events from any angle.

11. Learned Counsel for the Developer vehemently
argued that the Complainants were offered alternative
accommodation vide letter dated 03.04.2017 which was
not accepted by them. The said letter is reproduced as
hereunder:-

“Be that as it may, in view of your allegations
of delay which we deny, we hereby offer that
till we complete construction of your subject
matter flat we shall arrange alternative
accommodation/flat for you in Group Housing
Colony named “Takshila Heights” situated at
Sector-37C, Gurgaon on lease/rent with
immediate effect. We will bear the rent of
alternative accommodation/flat at “Takshila
Heights”. However, you shall have to pay the
common area maintenance charges and other
user based charges like electricity, etc., which
you would have done for your flat in “Esfera”
as well.” (Emphasis supplied).

12. It is significant to mention that in the afore-noted
letter there is an admission by the Developer that the
construction is still not completed. Additionally, even the
specific date of delivery of possession has not been
mentioned anywhere either in the Written Version or in the
Affidavit or even in the letter dated 03.04.2017 which the
Counsel is relying upon.”

Concluding that the Appellant was deficient in rendering service,

the Commission granted relief to the Respondents in following terms:-

“14. Keeping in view the admitted incomplete
construction, the fact that some of the Complainants have
also taken bank loans and are paying EMIs and
considering the stipulation provided in Clause 11.4, this
Complaint is partly allowed directing the Developer to
refund the amounts deposited with simple interest @ 9%
p.a. from the respective dates of deposits till the date of
realization together with costs of Rs.50,000/- to be paid to
each of the Complainants. The directions are to be
complied withing fours weeks from the date of receipt of a
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copy of the order, failing which, the amount shall attract
interest @ 12% p.a. for the said period.”

11. Similarly, all other complaints were allowed by the Commission

granting relief of refund of the amounts deposited by each of the

Complainants with simple interest @ 9% per annum from the respective

dates of deposits alongwith Rs.50,000/- towards costs. It was also directed

that the amounts be deposited within four weeks, failing which the

amounts would carry interest @ 12% per annum.

12. The Appellant being aggrieved preferred the instant appeals on

14.03.2019. By way of Additional Documents, a copy of the letter dated

17.11.2017 was placed on record. An order passed by Haryana Authority,

Gurugram on 17.01.2019 in a complaint preferred by one Himanshu Giri

was also placed on record. The directions issued in said order were to the

following effect:-

“27. After taking into consideration all the material facts
as adduced and produced by both the parties, the authority
exercising powers vested in it under section 37 of the Real
Estate (Regulation and Development) Act, 2016 hereby
issues the following directions to the respondent in the
interest of justice and fair play:

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

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

13. The appeal memo also did not make any reference to the fact that

the Project had been registered under the RERA Act. In the leading appeal,

following assertions were made in the list of dates and events:-

“2011-2017 The Appellant was unable to hand
over the possession to the
Respondents within the stipulate time
as stipulated in Clause 10.1 due to
reasons beyond control of the
Appellant viz., due to severe shortage
of contractual labourers and delay
caused in obtaining statutory requisite
permissions for carrying on the
construction of said flats, failed to
deliver possession of the subject flats
to the Respondents within the
prescribed time limit.

One of the grounds raised in the appeal memo was as under:-

“C. Because the Hon’ble Commission failed to appreciate
that the Policy of Demonetization introduced by the
Government of India constituted as an event of Force
Majeure since as a consequence of the said event,
numerous persons including the Appellant suffered
shortage of cash which resulted in delay in delivering
possession to the Respondent. It is humbly submitted that
the shortage of cash ensuing as a result of the
Demonitization policy resulted in the stopping of work
since the process of construction requires many payments
to be made in cash on a day to day basis, for example,
wages paid to daily wage workers, payments made against
delivery of construction materials, etc.”
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14. After issuance of notice on 05.04.2019, it was submitted by the

Respondents that the Appellant had partially refunded the amounts in terms

of the directions of the Commission. Following details indicate that in four

out of ten cases, partial refund was made.

             “
             S.No.     Consumer         Case Amount Directed       Amount
                       Number                to be Refunded by     Refunded       by
                                             Appellant        to   Appellant     (In
                                             Complainant(s)        Rupees)
                                             (In Rupees)
             1.        Consumer Case No.3011 Rs.63,53,625/-        10,00,000/-
                       of 2017
             2.        Consumer Case No.3012 Rs.55,35,223/-        8,00,000/-
                       of 2017
             3.        Consumer Case No.3013 Rs.79,45,547/-        NIL
                       of 2017
             4.        Consumer Case No.3014 Rs.75,85,280/-        NIL
                       of 2017
             5.        Consumer Case No.3015 Rs.56,39,495/-        NIL
                       of 2017
             6.        Consumer Case No.3016 Rs.65,26,929/-        NIL
                       of 2017
             7.        Consumer Case No.3017 Rs.65,76,497/-        8,00,000/-
                       of 2017
             8.        Consumer Case No.3018 Rs.56,76,600/-        8,00,000/-
                       of 2017
             9.        Consumer Case No.3019 77,46,851/-           NIL
                       of 2017
             10.       Consumer Case No.3020 Rs.1,02,66,866/-      NIL
                       of 2017
                                                                                       ”

Refund of Rs.10,00,000/- to the Respondents, was made on

27.03.2019 i.e. even after filing of the leading appeal.

15. Mr. Vikas Singh, learned Senior Advocate for the Appellant

submitted inter alia:-

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a) The Appellant had completed Phase-I of the Project well-in-

time and Phase-II of the Project concerning about 437 allottees

was the matter in issue. Out of these 437 allottees, only in 59

cases complaints were filed under the CP Act, while Mr.

Himanshu Giri had approached authorities under the RERA Act.

A majority of the allottees had thus reposed faith in the

Appellant.

b) The Appellant had offered alternative accommodation to all the

allottees. But the offer was rejected by all the Complainants

which was indicative that the apartments were booked for

investment purposes.

c) The Complainants were not “Consumers” within the meaning

of the CP Act as the apartments were booked merely for profit

motive.

d) Once the RERA Act came into force, all questions concerning

the Project including issues relating to construction and

completion thereof, would be under the exclusive control and

jurisdiction of the authorities under the RERA Act. The

Commission, therefore, ought not to have entertained the

Consumer Cases.

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e) The Registration Certificate dated 17.11.2017 being valid upto

31.12.2020, the Appellant could not be said to have delayed the

construction and consequently, there could be no finding that

there was deficiency on part of the Appellant.

f) The order passed in the case of Himanshu Giri had directed

payment of interest @ 10.75% per annum without issuing any

direction for refund of money. The approach so adopted would

be conducive to completion of construction and at the same

time would balance the interest of the allottees.

g) Considering the provisions of the RERA Act and the fact that

the registration being valid upto 31.12.2020, the orders passed

by the Commission be set aside and instead the Complainants

be granted interest @ 10.75% p.a. on the amounts deposited;

whereby the Project would be completed without putting the

Appellant under any financial strain and at the same time the

relief in the nature of interest on investment would also be

accruable to the allottees.

16. Ms. Priyanjali Singh, learned Advocate for the Respondents as well

as for some of the other Complainants submitted:-
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a) All the Complainants had purchased only one residential

apartment each for self-use. They had taken home loans,

except the Complainant in Consumer Case No.3020 of 2017

who after his retirement as Group Captain from the Indian Air

Force had used all his retirement dues to book the apartment.

Therefore, the issue whether the Complainants satisfied the

requirements of being “Consumers” under the provisions of the

CP Act was rightly decided in favour of the Complainants.

b) The question whether the delay occurred due to force majeure

events was also rightly answered in favour of the Complainants

and no reasonable explanation was available on record to

dislodge that finding.

c) In the backdrop of these findings, the Commission was justified

in accepting the claim of the Complainants. In fact, the award

of interest @ 9% per annum was at a lower level.

d) At no stage, any plea was taken before the Commission that the

Project was registered under the RERA Act or about the effect

of the RERA Act. No such plea was taken even in the appeal

memo. Consequently, it would not be open to the Appellant to

raise any submissions about the applicability of the RERA Act.
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e) In any case, as construed by this Court consistently, the remedy

afforded by the CP Act would be an additional remedy to a

consumer and said legal position remained unchanged even

after the enactment of the RERA Act.

17. Three Complainants viz. (a) Chandra Shekhar; (b) Rajat Verma;

and (c) Krishan Kumar appeared in person and advanced submissions. It

was submitted, inter alia, that the decision of the Commission did not call

for any interference and that they be refunded the entire amount with 12%

interest instead of 9% as awarded by the Commission.

18. At the outset, we must deal with two factual issues. It was

concluded by the Commission that; (i) all the Complainants were

‘Consumers’ within the meaning of the Act and that; (ii) there was delay

on part of the Appellant in completing the construction within time. The

stand taken by the Appellant at various stages, itself acknowledged that

there was delay but the Appellant tried to rely on certain events as

mentioned in ground (c) quoted hereinabove. In our view, the conclusions

drawn by the National Commission in relation to these issues are

absolutely correct and do not call for any interference.

19. Before we deal with the issues about the applicability and effect of

the RERA Act as well as the effect of registration of the Project under the
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RERA Act, the relevant provisions of the CP Act and the RERA Act may

be extracted:-

A] The Consumer Protection Act, 1986

The CP Act was enacted, inter alia, “to provide for better protection

of the interest of the consumer”; to promote and protect the rights of

consumers such as “the rights to seek redressal against unfair trade

practices or unscrupulous exploitation of consumers”. Sections 3, 12(4)

and 24 were to the following effect: –

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

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

(1) … … …
(2) … … …
(3) … … …
(4) Where a complaint is allowed to be proceeded with
under sub-section (3), the District Forum may proceed
with the complaint in the manner provided under this Act:

Provided that where a complaint has been admitted by the
District Forum, it shall not be transferred to any other
court or tribunal or any authority set up by or under any
other law for the time being in force.

… … …

24. Finality of orders. — Every order of a District
Forum, the State Commission or the National Commission
shall, if no appeal has been preferred against such order
under the provisions of this Act, be final.”
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B] The Real Estate (Regulation and Development) Act, 2016

Sections 2(d), 2(zg), 2(zj) and 2(zk) define expressions “Allottee”,

“Person, “Project” and “Promoter” respectively. Sections 3, 4, 5, 18, 19,

22, 46, 71, 79, 88 and 89 of the RERA Act are as under:-

“3. Prior registration of real estate project with Real
Estate Regulatory Authority

(1) No promoter shall advertise, market, book, sell or offer
for sale, or invite persons to purchase in any manner any
plot, apartment or building, as the case may be, in any real
estate project or part of it, in any planning area, without
registering the real estate project with the Real Estate
Regulatory Authority established under this Act:

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

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

(2) Notwithstanding anything contained in sub-section (1),
no registration of the real estate project shall be required—

(a) where the area of land proposed to
be developed does not exceed five
hundred square meters or the
number of apartments proposed to
be developed does not exceed eight
inclusive of all phases: Provided
that, if the appropriate Government
considers it necessary, it may, reduce
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the threshold below five hundred
square meters or eight apartments,
as the case may be, inclusive of all
phases, for exemption from
registration under this Act;

(b) where the promoter has received
completion certificate for a real
estate project prior to
commencement of this Act;

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

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

4. Application for registration of real estate projects

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

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

(a) a brief details of his enterprise
including its name, registered
address, type of enterprise
(proprietorship, societies,
partnership, companies, competent
authority), and the particulars of
registration, and the names and
photographs of the promoter;

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(b) a brief detail of the projects
launched by him, in the past five
years, whether already completed or
being developed, as the case may
be, including the current status of
the said projects, any delay in its
completion, details of cases
pending, details of type of land and
payments pending;

(c) an authenticated copy of the
approvals and commencement
certificate from the competent
authority obtained in accordance
with the laws as may be applicable
for the real estate project mentioned
in the application, and where the
project is proposed to be developed
in phases, an authenticated copy of
the approvals and commencement
certificate from the competent
authority for each of such phases;

(d) the sanctioned plan, layout plan and
specifications of the proposed
project or the phase thereof, and the
whole project as sanctioned by the
competent authority;

(e) the plan of development works to be
executed in the proposed project and
the proposed facilities to be
provided thereof including fire
fighting facilities, drinking water
facilities, emergency evacuation
services, use of renewable energy;

(f) the location details of the project,
with clear demarcation of land
dedicated for the project along with
its boundaries including the latitude
and longitude of the end points of
the project;

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(g) proforma of the allotment letter,
agreement for sale, and the
conveyance deed proposed to be
signed with the allottees;

(h) the number, type and the carpet area
of apartments for sale in the project
along with the area of the exclusive
balcony or verandah areas and the
exclusive open terrace areas
apartment with the apartment, if
any;

(i) the number and areas of garage for
sale in the project;

(j) the names and addresses of his real
estate agents, if any, for the
proposed project;

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

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

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

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

(C) the time period within which he
undertakes to complete the
project or phase thereof, as the
case may be;

(D) that seventy per cent. of the
amounts realised for the real
estate project from the allottees,
from time to time, shall be
deposited in a separate account
to be maintained in a scheduled
bank to cover the cost of
construction and the land cost
and shall be used only for that
purpose: Provided that the
promoter shall withdraw the
amounts from the separate
account, to cover the cost of the
project, in proportion to the
percentage of completion of the
project: Provided further that
the amounts from the separate
account shall be withdrawn by
the promoter after it is certified
by an engineer, an architect and
a chartered accountant in
practice that the withdrawal is
in proportion to the percentage
of completion of the project:

Provided also that the promoter
shall get his accounts audited
within six months after the end
of every financial year by a
chartered accountant in practice,
and shall produce a statement of
accounts duly certified and
signed by such chartered
accountant and it shall be
verified during the audit that the
amounts collected for a
particular project have been
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utilised for the project and the
withdrawal has been in
compliance with the proportion
to the percentage of completion
of the project. Explanation.—
For the purpose of this clause,
the term “schedule bank” means
a bank included in the Second
Schduled to the Reserve Bank
of India Act
, 1934;

(E) that he shall take all the pending
approvals on time, from the
competent authorities;

(F) that he has furnished such other
documents as may be prescribed
by the rules or regulations made
under this Act; and (m) such
other information and documents
as may be prescribed.

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

5. Grant of registration

(1) On receipt of the application under sub-section (1) of
section 4, the Authority shall within a period of thirty
days.

(a) grant registration subject to the
provisions of this Act and the rules and
regulations made thereunder, and
provide a registration number, including
a Login Id and password to the applicant
for accessing the website of the
Authority and to create his web page
and to fill therein the details of the
proposed project; or

(b) reject the application for reasons to be
recorded in writing, if such application
does not conform to the provisions of
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this Act or the rules or regulations made
thereunder:

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

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

(3) The registration granted under this section shall be
valid for a period declared by the promoter under sub-
clause (C) of clause (1) of sub-section (2) of section 4 for
completion of the project or phase thereof, as the case may
be.

18. Return of amount and compensation

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

(a) in accordance with the terms of the
agreement for sale or, as the case may
be, duly completed by the date specified
therein; or

(b) due to discontinuance of his business as
a developer on account of suspension or
revocation of the registration under this
Act or for any other reason,

he shall be liable on demand to the allottees, in case the
allottee wishes to withdraw from the project, without
prejudice to any other remedy available, to return the
amount received by him in respect of that apartment, plot,
building, as the case may be, with interest at such rate as
may be prescribed in this behalf including compensation
in the manner as provided under this Act:
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PROVIDED that where an allottee does not intend to
withdraw from the project, he shall be paid, by the
promoter, interest for every month of delay, till the
handing over of the possession, at such rate as may be
prescribed.

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

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

19. Rights and duties of allottees

(1) The allottee shall be entitled to obtain the information
relating to sanctioned plans, layout plans along with the
specifications, approved by the competent authority and
such other information as provided in this Act or the rules
and regulations made thereunder or the agreement for sale
signed with the promoter.

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

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

(4) The allottee shall be entitled to claim the refund of
amount paid along with interest at such rate as may be
prescribed and compensation in the manner as provided
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under this Act, from the promoter, if the promoter fails to
comply or is unable to give possession of the apartment,
plot or building, as the case may be, in accordance with
the terms of agreement for sale or due to discontinuance of
his business as a developer on account of suspension or
revocation of his registration under the provisions of this
Act or the rules or regulations made thereunder.

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

(6) Every allottee, who has entered into an agreement for
sale to take an apartment, plot or building as the case may
be, under section 13, shall be responsible to make
necessary payments in the manner and within the time as
specified in the said agreement for sale and shall pay at the
proper time and place, the share of the registration
charges, municipal taxes, water and electricity charges,
maintenance charges, ground rent, and other charges, if
any.

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

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

(9) Every allottee of the apartment, plot or building as the
case may be, shall participate towards the formation of an
association or society or cooperative society of the
allottees, or a federation of the same.

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

(11) Every allottee shall participate towards registration of
the conveyance deed of the apartment, plot or building, as
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the case may be, as provided under sub-section (1) of
section 17 of this Act.

22. Qualifications of Chairperson and Members of
Authority.-

The Chairperson and other Members of the Authority shall
be appointed by the appropriate Government on the
recommendations of a Selection Committee consisting of
the Chief Justice of the High Court or his nominee, the
Secretary of the Department dealing with Housing and the
Law Secretary, in such manner as may be prescribed, from
amongst persons having adequate knowledge of and
professional experience of at-least twenty years in case of
the Chairperson and fifteen years in the case of the
Members in urban development, housing, real estate
development, infrastructure, economics, technical experts
from relevant fields, planning, law, commerce,
accountancy, industry, management, social service, public
affairs or administration:

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

Provided further that a person who is, or has been, in the
service of the State Government shall not be appointed as
a member unless such person has held the post of
Secretary to the State Government or any equivalent post
in the State Government or Central Government.

46. Qualifications for appointment of Chairperson and
Members.-

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

(a) in the case of Chairperson, is or has been a
Judge of a High Court; and
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(b) in the case of a Judicial Member he has held a
judicial office in the territory of India for at least
fifteen years or has been a member of the Indian
Legal Service and has held the post of Additional
Secretary of that service or any equivalent post,
or has been an advocate for at least twenty years
with experience in dealing with real estate
matters; and

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

(2) The Chairperson of the Appellate Tribunal shall be
appointed by the appropriate Government in consultation
with the Chief Justice of High Court or his nominee.
(3) The Judicial Members and Technical or Administrative
Members of the Appellate Tribunal shall be appointed by
the appropriate Government on the recommendations of a
Selection Committee consisting of the Chief Justice of the
High Court or his nominee, the Secretary of the
Department handling Housing and the Law Secretary and
in such manner as may be prescribed.

71. Power to adjudicate
(1) For the purpose of adjudging compensation under
sections 12, 14, 18 and section 19, the Authority shall
appoint in consultation with the appropriate Government
one or more judicial officer as deemed necessary, who is
or has been a District Judge to be an adjudicating officer
for holding an inquiry in the prescribed manner, after
giving any person concerned a reasonable opportunity of
being heard:

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

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

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

(3) While holding an inquiry the adjudicating officer shall
have power to summon and enforce the attendance of any
person acquainted with the facts and circumstances of the
case to give evidence or to produce any document which
in the opinion of the adjudicating officer, may be useful
for or relevant to the subject matter of the inquiry and if,
on such inquiry, he is satisfied that the person has failed to
comply with the provisions of any of the sections specified
in sub-section (1), he may direct to pay such compensation
or interest, as the case any be, as he thinks fit in
accordance with the provisions of any of those sections.

79. Bar of jurisdiction

No civil court shall have jurisdiction to entertain any suit
or proceeding in respect of any matter which the Authority
or the adjudicating officer or the Appellate Tribunal is
empowered by or under this Act to determine and no
injunction shall be granted by any court or other authority
in respect of any action taken or to be taken in pursuance
of any power conferred by or under this Act.
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88. Application of other laws not barred

The provisions of this Act shall be in addition to, and not
in derogation of, the provisions of any other law for the
time being in force.

89. Act to have overriding effect
The provisions of this Act shall have effect,
notwithstanding anything inconsistent therewith contained
in any other law for the time being in force.”

20. The question whether the remedies available to the consumers

under the provisions of the CP Act would be additional remedies, was

considered by this Court in some cases, the notable cases being:-

i) In Secretary, Thirumurugan Cooperative Agricultural

Credit Society vs. M. Lalitha (dead) through LRs. and others , this

Court observed:-

“11. From the Statement of Objects and Reasons and the
scheme of the 1986 Act, it is apparent that the main
objective of the Act is to provide for better protection of
the interest of the consumer and for that purpose to
provide for better redressal, mechanism through which
cheaper, easier, expeditious and effective redressal is made
available to consumers. To serve the purpose of the Act,
various quasi-judicial forums are set up at the district,
State and national level with wide range of powers vested
in them. These quasi-judicial forums, observing the
principles of natural justice, are empowered to give relief
of a specific nature and to award, wherever appropriate,
compensation to the consumers and to impose penalties
for non-compliance with their orders.

12. As per Section 3 of the Act, as already stated above,
the provisions of the Act shall be in addition to and not in
derogation of any other provisions of any other law for the

 (2004) 1 SCC 305
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time being in force. Having due regard to the scheme of
the Act and purpose sought to be achieved to protect the
interest of the consumers better, the provisions are to be
interpreted broadly, positively and purposefully in the
context of the present case to give meaning to
additional/extended jurisdiction, particularly when Section
3
seeks to provide remedy under the Act in addition to
other remedies provided under other Acts unless there is a
clear bar.”

The issue in this case was whether in the face of Section 156 of the

Tamil Nadu Cooperative Societies Act, 1983 the concerned persons could

avail remedies under the CP Act. Interpreting Section 3 of the CP Act, it

was held that the remedy provided under the CP Act would be in addition

to the remedies provided under the other Acts.

ii) In National Seeds Corporation Limited vs. M.

Madhusudhan Reddy and another, it was observed:-

“57. It can thus be said that in the context of
farmers/growers and other consumers of seeds, the Seeds
Act
is a special legislation insofar as the provisions
contained therein ensure that those engaged in agriculture
and horticulture get quality seeds and any person who
violates the provisions of the Act and/or the Rules is
brought before the law and punished. However, there is no
provision in that Act and the Rules framed thereunder for
compensating the farmers, etc. who may suffer adversely
due to loss of crop or deficient yield on account of
defective seeds supplied by a person authorised to sell the
seeds. That apart, there is nothing in the Seeds Act and the
Rules which may give an indication that the provisions of
the Consumer Protection Act are not available to the
farmers who are otherwise covered by the wide definition
of “consumer” under Section 2(1)(d) of the Consumer
Protection Act. As a matter of fact, any attempt to exclude
 (2012) 2 SCC 506
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the farmers from the ambit of the Consumer Protection
Act
by implication will make that Act vulnerable to an
attack of unconstitutionality on the ground of
discrimination and there is no reason why the provisions
of the Consumer Protection Act should be so interpreted.

… … …

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

In this case the provisions of the CP Act and those under the Seeds

Act, 1966 were considered.

iii) In Virender Jain vs. Alaknanda Cooperative Group

Housing Society Limited and others, it was observed by this Court

as under:-

“13. The other question which needs to be considered is
whether the District Forum should not have entertained the
complaints filed by the appellants and directed them to
avail the statutory remedies available under the
Cooperative Societies Act. Shri Neeraj Jain vehemently
argued that the forums constituted under the Act cannot
grant relief to the appellants because the action taken by
Respondent 1 was approved by the authorities constituted
under the Cooperative Societies Act, who were not
impleaded as parties in the complaints.

14. In our view, there is no merit in the submission of the
learned Senior Counsel. In the complaints filed by them,
the appellants had primarily challenged the action of
Respondent 1 to refund the amounts deposited by them
and thereby extinguished their entitlement to get the flats.

Therefore, the mere fact that the action taken by
Respondent 1 was approved by the Assistant Registrar,
 (2013) 9 SCC 383
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Cooperative Societies and higher authorities, cannot
deprive the appellants of their legitimate right to seek
remedy under the Act, which is in addition to the other
remedies available to them under the Cooperative
Societies Act
. Law on this issue must be treated as settled
by the judgments of this Court in Thirumurugan Coop.
Agricultural Credit Society v. M. Lalitha3, Kishore Lal v.
ESI Corpn. and National Seeds Corpn. Ltd. v. M.
Madhusudhan Reddy2
.

15. In the last mentioned judgment, National Seeds Corpn.

Case4, this Court referred to the earlier judgments in Fair
Air Engineers (P) Ltd. v. N.K. Modi
, Thirumurugan
Coop. Agricultural Credit Society v. M. Lalitha3, Skypak
Couriers Ltd. v. Tata Chemicals Ltd
. and Trans
Mediterranean Airways v. Universal Exports
 and held that
the remedy available under the Act is in addition to the
remedies available under other statutes and the availability
of alternative remedies is not a bar to the entertaining of a
complaint filed under the Act.”

In this case the statutory remedies available under the Haryana

Cooperative Societies Act, 1984 as against those under the CP Act was the

matter in issue.

21. It has consistently been held by this Court that the remedies

available under the provisions of the CP Act are additional remedies over

and above the other remedies including those made available under any

special statutes; and that the availability of an alternate remedy is no bar

in entertaining a complaint under the CP Act.

 (2007) 4 SCC 579
 (1996) 6 SCC 385
 (2000) 5 SCC 294
 (2011) 10 SCC 316
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22. Before we consider whether the provisions of the RERA Act have

made any change in the legal position stated in the preceding paragraph,

we may note that an allottee placed in circumstances similar to that of the

Complainants, could have initiated following proceedings before the

RERA Act came into force.

A) If he satisfied the requirements of being a “consumer” under the

CP Act, he could have initiated proceedings under the CP Act in

addition to normal civil remedies.

B) However, if he did not fulfil the requirements of being a

“consumer”, he could initiate and avail only normal civil remedies.
C) If the agreement with the developer or the builder provided for

arbitration:-

i) in cases covered under Clause ‘B’ hereinabove, he could

initiate or could be called upon to invoke the remedies in

arbitration.

ii) in cases covered under Clause ‘A’ hereinabove, in

accordance with law laid down in Emaar MGF Ltd and

anr. Vs. Aftab Singh, he could still choose to proceed

under the CP Act.

23. In terms of Section 18 of the RERA Act, if a promoter fails to

complete or is unable to give possession of an apartment duly completed

 (2019) 12 SCC 751
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by the date specified in the agreement, the Promoter would be liable, on

demand, to return the amount received by him in respect of that

apartment if the allottee wishes to withdraw from the Project. Such right

of an allottee is specifically made “without prejudice to any other

remedy available to him”. The right so given to the allottee is

unqualified and if availed, the money deposited by the allottee has to be

refunded with interest at such rate as may be prescribed. The proviso to

Section 18(1) contemplates a situation where the allottee does not intend

to withdraw from the Project. In that case he is entitled to and must be

paid interest for every month of delay till the handing over of the

possession. It is upto the allottee to proceed either under Section 18(1)

or under proviso to Section 18(1). The case of Himanshu Giri came

under the latter category. The RERA Act thus definitely provides a

remedy to an allottee who wishes to withdraw from the Project or claim

return on his investment.

24. It is, therefore, required to be considered whether the remedy so

provided under the RERA Act to an allottee is the only and exclusive

modality to raise a grievance and whether the provisions of the RERA

Act bar consideration of the grievance of an allottee by other fora.
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25. Section 79 of the RERA Act bars jurisdiction of a Civil Court to

entertain any suit or proceeding in respect of any matter which the

Authority or the adjudicating officer or the Appellate Tribunal is

empowered under the RERA Act to determine. Section 88 specifies that

the provisions of the RERA Act would be in addition to and not in

derogation of the provisions of any other law, while in terms of Section

89, the provisions of the RERA Act shall have effect notwithstanding

anything inconsistent contained in any other law for the time being in

force.

26. On plain reading of Section 79 of the RERA Act, an allottee

described in category (B) stated in paragraph 22 hereinabove, would

stand barred from invoking the jurisdiction of a Civil Court. However,

as regards the allottees who can be called “consumers” within the

meaning of the CP Act, two questions would arise; a) whether the bar

specified under Section 79 of the RERA Act would apply to proceedings

initiated under the provisions of the CP Act; and b) whether there is

anything inconsistent in the provisions of the CP Act with that of the

RERA Act.

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27. In Malay Kumar Ganguli vs. Dr. Sukumar Mukherjee , it was

held by this Court:-

“The proceedings before the National Commission are
although judicial proceedings, but at the same time it is
not a civil court within the meaning of the provisions of
the Code of Civil Procedure. It may have all the trappings
of the civil court but yet it cannot be called a civil court.
(See Bharat Bank Ltd. V. Employees and Nahar Industrial
Enterprises Ltd. vs. Hong Kong & Shanghai Banking
Corpn
.

On the strength of the law so declared, Section 79 of the RERA

Act does not in any way bar the Commission or Forum under the

provisions of the CP Act to entertain any complaint.

28. Proviso to Section 71(1) of the RERA Act entitles a complainant

who had initiated proceedings under the CP Act before the RERA Act

came into force, to withdraw the proceedings under the CP Act with the

permission of the Forum or Commission and file an appropriate

application before the adjudicating officer under the RERA Act. The

proviso thus gives a right or an option to the concerned complainant but

does not statutorily force him to withdraw such complaint nor do the

provisions of the RERA Act create any mechanism for transfer of such

pending proceedings to authorities under the RERA Act. As against that
 (2009) 9 SCC 221
 AIR 1950 SC 188 : 1950 SCR 459
 (2009) 6 SCC 635
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the mandate in Section 12(4) of the CP Act to the contrary is quite

significant.

Again, insofar as cases where such proceedings under the CP Act

are initiated after the provisions of the RERA Act came into force, there

is nothing in the RERA Act which bars such initiation. The absence of

bar under Section 79 to the initiation of proceedings before a fora which

cannot be called a Civil Court and express saving under Section 88 of

the RERA Act, make the position quite clear. Further, Section 18 itself

specifies that the remedy under said Section is “without prejudice to any

other remedy available”. Thus, the parliamentary intent is clear that a

choice or discretion is given to the allottee whether he wishes to initiate

appropriate proceedings under the CP Act or file an application under the

RERA Act.

29. It was, however, urged that going by the objective or the purpose

for which the RERA Act was enacted and considering the special

expertise and the qualifications of the Chairpersons and Members of the

Authority (Section 22) and the Appellate Tribunal (Section 46), such

authorities alone must be held entitled to decide all issues concerning the

Project registered under the RERA Act. It was submitted that if the

allottees were to be permitted to initiate parallel proceedings before the
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fora under the CP Act, the financial drain on the promoter would render

completion of construction an impossibility and, therefore, the RERA

Act in general and Section 89 in particular be construed in such a way

that all the issues pertaining to the concerned project be decided only by

the authorities under the RERA Act. Even with acceptance of such

interpretation, the allottees would still be entitled to approach the

authorities under Section 18 of the RERA Act.

30. It is true that some special authorities are created under the RERA

Act for the regulation and promotion of the real estate sector and the

issues concerning a registered project are specifically entrusted to

functionaries under the RERA Act. But for the present purposes, we

must go by the purport of Section 18 of the RERA Act. Since it gives a

right “without prejudice to any other remedy available’, in effect, such

other remedy is acknowledged and saved subject always to the

applicability of Section 79.

31. At this stage, we may profitably refer to the decision in Pioneer

Urban Land and Infrastructure Limited and another vs. Union of

India and another, where a bench of three Judges of this Court was

called upon to consider the provisions of Insolvency and Bankruptcy
 (2019) 8 SCC 416
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Code, 2016, RERA Act and other legislations including the provisions of

the CP Act. One of the conclusions arrived at by this Court was:-

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

32. We, therefore, reject the submissions advanced by the Appellant

and answer the questions raised in paragraph 26 hereinabove against the

Appellant.

33. We may now consider the effect of the registration of the Project

under the RERA Act. In the present case the apartments were booked

by the Complainants in 2011-2012 and the Builder Buyer Agreements

were entered into in November, 2013. As promised, the construction

should have been completed in 42 months. The period had expired well

before the Project was registered under the provisions of the RERA Act.

Merely because the registration under the RERA Act is valid till

31.12.2020 does not mean that the entitlement of the concerned allottees

to maintain an action stands deferred. It is relevant to note that even for

the purposes of Section 18, the period has to be reckoned in terms of the

agreement and not the registration. Condition no. (x) of the letter dated
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17.11.2017 also entitles an allottee in same fashion. Therefore, the

entitlement of the Complainants must be considered in the light of the

terms of the Builder Buyer Agreements and was rightly dealt with by the

Commission.

34. Lastly, it may be noted that the Consumer Protection Act, 2019 

(hereinafter referred as, “2019 Act”) was enacted by the Parliament “to

provide for protection of the interests of consumers and for the said

purpose, to establish authorities for timely and effectively administration

and settlement of the consumers’ dispute and for matters connected

therewith or incidental thereto”. Sections 2(7), 2(33), 2(37), and 2(42)

define expressions “Consumer”, “Product”, “Product Seller” and

“Service” respectively. Sections 85 and 86 deal with liability of “Product

Service Provider” and “Product Seller”. Sections 100 and 107 of 2019

Act are to the following effect:-

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

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

(2) Notwithstanding such repeal, anything done or any
action taken or purported to have been done or taken under


Most of the provisions in Chapters I, II, IV, V, VI, VII and VIII including Sections 100 and
107 were brought into force w.e.f. 27.07.2020 vide Notification dated 15.07.2020
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the Act hereby repealed shall, in so far as it Is not
inconsistent with the provisions of this Act, be deemed to
have been done or taken under the corresponding
provisions of this Act.

(3) The mention of particular matters in sub-section (2)
shall not be held to prejudice or affect the general
application of section 6 of the General Clauses Act, 1897
with regard to the effect of repeal.”

Section 100 of 2019 Act is akin to Section 3 of the CP Act and

Section 107 saves all actions taken or purported to have been taken

under the CP Act. It is significant that Section 100 is enacted with an

intent to secure the remedies under 2019 Act dealing with protection of

the interests of Consumers, even after the RERA Act was brought into

force.

Thus, the proceedings initiated by the complainants in the present

cases and the resultant actions including the orders passed by the

Commission are fully saved.

35. Resultantly, we reject all the submissions advanced by the

Appellant. These appeals are accordingly dismissed affirming the view

taken by the Commission. We quantify the costs at Rs.50,000/- (Rupees

Fifty Thousand only) to be paid by the Appellant in respect of each of the

Consumer Cases, over and above the amounts directed to be made over to
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the Complainants and shall form part of the amount payable by the

Appellant to the Complainants.

36. All the Complainants are entitled to execute the orders passed by

the Commission in their favour, in accordance with law.

……..……………….J.

[Uday Umesh Lalit]

.…………………….J.

[Vineet Saran]
New Delhi;

November 02, 2020.



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