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2019 Supreme(Del) 2101

IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATEEK JALAN, J.
M3M India Pvt. Ltd. And Another - Appellant
Versus
Dinesh Sharma And Another - Respondent
Civil Miscellaneous (M) No. 1244, 1248, 1249, 514, 516, 610, 611, 621, 691, 697, 698, 700, 703, 716, 721, 802, 803, 804, 805, 832, 850, 856, 858, 859, 860, 861, 862, 863, 864, 865, 901, 909, 938, 939, 967, 974, 975, 977, 978, 979, 980, 982, 983, 985, 999, 1023, 1074, 1146, 1180, 1183, 1187, 1189, 1191, 1192, 1195 of 2019; Civil Miscellaneous Application No. 38052, 38053, 38089, 38090, 38097, 38098, 15039, 26394, 15058, 18214, 18218, 18726, 21107, 21408, 21415, 21454, 21508, 21749, 21897, 21898, 24537, 24555, 24559, 24562, 25275, 25783, 25868, 25886, 25894, 25949, 25952, 25969, 25979, 26025, 26104, 27093, 27251, 27994, 28055, 29046, 29047, 29162, 29163, 29219, 29220, 29223, 29224, 29225, 29226, 29232, 29233, 29234, 29238, 29255, 29256, 29258, 29259, 29291, 29292, 29739, 29740, 30595, 30596, 32109, 34793, 34794, 35634, 35635, 35636, 35680, 35681, 35682, 35831, 35832, 35833, 35852, 35853, 35864, 35865, 35866, 35964, 35965, 36250, 36251 of 2019
Decided On : 04-09-2019

Advocates:
Advocate Appeared:
A.R. Takkar, Adv., Amarjeet Kumar, Adv., Shriya Takkar, Adv., Arun Wighmal, Adv., Vivek Kohli, Adv., Prerna Kohli, Adv., Mudhit Gupta, Adv., Ayushi Verma, Adv., Yeshi Rinchhen, Adv., Gaurav Hooda, Adv., Lokesh Bhola, Adv., Sandeep Mandar, Adv., Karan Grover, Adv., Vivek Sibal, Adv., Kanika Agnihotri, Adv., Sumesh Dhawan, Adv., Jitender Ratta, Adv., Vishesh Issar, Adv., Rahul Dhawan, Adv., Varun Sharma, Adv., Deepank Yadav, Adv., Sougat Sinha, Adv., Manoj Kumar, Adv., R. Gayathri Manasa, Adv., Uday Arora, Adv., Rajat Malhotra, Adv., Sunil Malhotra, Adv., Mayank Wadhwa, Adv., Jasvin Dhama, Adv., Vishakha Gupta, Adv., Kanishka Prasad, Adv., Arvind Bhatt, Adv., Kuber Giri, Adv., Abhishek Rautji, Adv., Sushil Kaushik, Adv., Manoj Yadav, Adv., Prerna Arora, Adv., Sharika Vijh, Adv., Sangya Gupta, Adv., Manish K. Bishnoi, Adv., Ashish Virmani, Adv., Gollamund Harsha Datta, Adv., Rishi Kapoor, Adv., Rachit, Adv., Pankaj Kumar Singh, Adv., Aditya Parolia, Adv., Piyush Singh, Adv., Nithin Chandran, Adv., Harikrishnan, Adv., Sanjiv Kakra, Adv., Rajani Chauhan, Adv., Rashmi Jain, Adv., Deepak Bashta, Adv., Shailesh K. Kapoor, Adv., Ajay Kumar, Adv., Koonal Tanwar, Adv., C.S. Gupta, Adv., Anand Shukla, Adv., Divya Jyoti Singh, Adv., Parmanand Yadav, Adv., Vinod Chauhan, Adv., Sudhir Mahajan, Adv.

The main legal point established is that the remedies available to home buyers under CPA and RERA are concurrent, as concluded by the Supreme Court in Pioneer Urban Land and Infrastructure Ltd. & Anr. vs. Union of India & Ors.

Headnote:
Consumer Protection Act - Proceedings under Consumer Protection Act, 1986 and Real Estate (Development and Regulation) Act, 2016 - Sections 79, 88, 89 of RERA - Summary of the judgment's legal framework
Fact of the Case:

The court addressed the issue of whether proceedings under the Consumer Protection Act, 1986 (CPA) can be initiated by home buyers against developers after the commencement of the Real Estate (Development and Regulation) Act, 2016 (RERA). The National Commission held that remedies under CPA and RERA are concurrent.
Finding of the Court:

The court found that the judgment in Pioneer Urban Land and Infrastructure Ltd. & Anr. vs. Union of India & Ors. concluded that remedies for allottees of flats/apartments are concurrent under CPA, RERA, and the Insolvency and Bankruptcy Code, 2016.
Issues: The main issue was the concurrent nature of remedies under CPA and RERA, and the effect of the judgment in Pioneer on the present petitions.
Ratio Decidendi: The court held that the judgment in Pioneer is binding, and the remedies available under CPA and RERA are concurrent, based on the conclusions of the Supreme Court.
Final Decision: The petitions were dismissed, and the interim orders were vacated.

JUDGMENT :

PRATEEK JALAN, J.

1. These petitions under Article 227 of the Constitution involve a common question, viz. whether proceedings under the Consumer Protection Act, 1986 [hereinafter referred to as "CPA"] can be commenced by home buyers (or allottees of properties in proposed real estate development projects) against developers, after the commencement of the Real Estate (Development and Regulation) Act, 2016 [hereinafter referred to as "RERA"].

2. Although there are a few cases in this batch in which notice has not been issued, and some in which service remains incomplete, in view of the order I propose to pass, it is unnecessary to await the appearance of the respondents.

3. The question referred to above has been decided against the petitioners by the National Consumer Disputes Redressal Commission [hereinafter referred to as "the National Commission"], by an order dated 15.04.2019 in Consumer Case No. 1764/2017 (Ajay Nagpal vs. Today Homes & Infrastructure Pvt. Ltd). The petition arising out of that complaint [CM(M) 621/2019] was treated as the lead matter in this batch. The order of the National Commission dated 15.04.2019 has been followed in several other orders, which have been challenged in other petitions mentioned above. Briefly stated, the National Commission has held that the remedies provided under CPA and RERA are concurrent, and the jurisdiction of the forums/commissions constituted under CPA is not ousted by RERA, particularly Section 79 thereof.

4. In several of the petitions, interim orders were passed at the initial stage, by which further proceedings before the National Commission were stayed. By an order dated 11.07.2019, the interim order was modified to the extent that proceedings before the National Commission could continue, but the National Commission was requested not to pass final orders in the complaints before it. This order has been followed in the cases subsequently filed, and this is the interim order which subsists today in all the petitions. (I am informed that interim orders in some of the cases have been challenged before the Supreme Court by the respondents, but I have not been informed of any matter where the proceedings in this Court have been stayed.)

5. On 08.08.2019, hearing in these cases commenced, first on the point of maintainability of the petitions under Article 227 of the Constitution, in view of the appellate remedy provided under Section 23 of CPA. While the matters remained part-heard however, the Supreme Court delivered a judgment dated 09.08.2019 in W.P.(C)43/2019 and connected matters (Pioneer Urban Land and Infrastructure Ltd. & Anr. vs. Union of India & Ors.,2019 SCCOnLineSC 1005), in which it has been concluded inter alia that remedies given to allottees of flat/apartments are concurrent, and such allottees are in a position to avail of remedies under CPA, RERA, as well as trigger the provisions of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "IBC").

6. Learned counsel for the respondents urged that the issue raised in these petitions thus stands decided against the petitioners.

7. Mr. Jayant Bhushan, learned Senior Advocate for the petitioner (appearing in CM(M)621/2019), contested this position. However, it was subsequently submitted that the petitioner in that case (M/s Today Homes and Infrastructure Private Limited) had filed an application before the Supreme Court for clarification of the judgment in Pioneer (supra). Mr. Vivek Sibal, learned counsel today submits that the application for clarification before the Supreme Court was ultimately withdrawn with liberty to seek impleadment in the Special Leave Petition filed against the interim orders of this Court.

8. I have therefore heard learned counsel for the parties regarding the effect of the judgment of the Supreme Court in Pioneer (supra). In addition to the arguments addressed by Mr. Bhushan on an earlier occasion, submissions were advanced by Mr. Vivek Sibal and Mr.Vivek Kohli, learned

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2019 Supreme(Del) 2101

The main legal point established is that the remedies available to home buyers under CPA and RERA are concurrent, as concluded by the Supreme Court in Pioneer Urban Land and Infrastructure Ltd. & Anr. vs. Union of India & Ors.

Cases Referred (12)