1. Apartment booking — Delay in possession — Refund claim under Consumer Protection Act — Project registration under Real Estate (Regulation and Development) Act. (Para 1 , 2 , 3 , 6 , 7 )
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2020 Supreme(SC) 636
SUPREME COURT OF INDIA
UDAY UMESH LALIT, VINEET SARAN, JJ.
M/s. Imperia Structures Ltd. – Appellant
Versus
Anil Patni and Another – Respondents
Civil Appeal Nos. 3581-3590, 3591 of 2020, Civil Appeal Diary Nos. 9793, 9796 of 2019
Decided On : 02-11-2020
Important Points
Remedies under the Consumer Protection Act are additional and concurrent to those under the RERA Act. The bar on civil court jurisdiction under Section 79 of RERA does not apply to consumer forums, allowing allottees to choose the appropriate forum for seeking redressal for construction delays.
Subject
Consumer Law - Real Estate
Act Referred
Headnote
Consumer Protection Act, 1986 - Section 23- Service – Possession – construction - appeals Section 23 of the Act, 1986 are directed against the common judgment and order passed by the National Consumer Disputes Redressal Commission – Held, Resultant actions including the orders passed by the Commission are fully saved - Resultantly, Court reject all the submissions advanced by the Appellant - These appeals are accordingly dismissed affirming the view taken by the Commission - Court quantify the costs 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 the Complainants and shall form part of the amount payable by the Appellant to the Complainants - All the Complainants are entitled to execute the orders passed by the Commission in their favour, in accordance with law – Ordered accordingly
Legal Category Hierarchy
- consumer law
- real estate law
- civil law
Advocates Appeared:
For the Petitioner(s):Simranjeet Singh, Rea Dube, Gautam Talukdar, Advocates
For the Respondent(s):Respondent-in-person Priyanjali Singh, Rahul Rathore, Karunesh Kumar Shukla, Advocates
For the Petitioner(s):Simranjeet Singh, Rea Dube, Gautam Talukdar, Advocates
For the Respondent(s):Respondent-in-person Priyanjali Singh, Rahul Rathore, Karunesh Kumar Shukla, Advocates
Table of Contents
2. Consumer status — Exclusive jurisdiction of RERA authorities — Force majeure due to demonetization — Effect of RERA registration on delivery timelines. (Para 8 , 13 , 15 )
3. Consumer status confirmed — RERA bar applies to civil courts, not consumer forums — RERA remedies are concurrent and additional to CP Act remedies. (Para 18 , 20 , 21 , 24 , 25 , 26 , 27 , 28 , 30 , 31 , 33 , 34 )
4. Remedies under the Consumer Protection Act are additional to those under the RERA Act, and RERA's civil court jurisdiction bar does not apply to consumer forums. (Para 21 , 27 , 28 , 31 )
5. Appeals dismissed — NCDRC order for refund with interest and costs affirmed. (Para 35 , 36 )
6. Does the RERA Act bar the jurisdiction of Consumer Forums?
No. Section 79 of the RERA Act bars the jurisdiction of Civil Courts, but Consumer Forums are not civil courts. Section 88 specifies the Act is in addition to other laws, and Section 18 provides remedies without prejudice to any other available remedy. (Para 25 , 27 , 28 )
7. Are remedies under the Consumer Protection Act and RERA Act concurrent?
Yes. Remedies under the CP Act are additional to those under special statutes. Allottees have the discretion to initiate proceedings under the CP Act or the RERA Act, as these are concurrent remedies. (Para 21 , 28 , 31 )
8. Does RERA registration extend the delivery timeline specified in a Builder Buyer Agreement?
No. The entitlement of allottees to seek relief for delay is determined by the terms of the Builder Buyer Agreement, not the validity period of the RERA registration. (Para 33 )
9. How does the Consumer Protection Act, 2019 affect proceedings initiated under the 1986 Act?
Section 100 of the 2019 Act maintains that its provisions are in addition to other laws, and Section 107 saves actions taken under the 1986 Act, provided they are not inconsistent with the 2019 Act. (Para 34 )
JUDGMENT :
UDAY UMESH LALIT, J.
1. These appeals [Arising out of Civil Appeal Diary No. 9796 of 2019] under Section 23 of the Consumer Protection Act, 1986 (hereinafter referred to as “the CP Act”) are directed against the common judgment and order dated 12.09.2018 passed by the National Consumer Disputes Redressal Commission, New Delhi (hereinafter 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 [Arising out of Civil Appeal Diary No. 9793 of 2019] 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 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 Allottees 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 Allottees 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 Allottees 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 Allottees 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 Allottees first named in this Agreement and not earlier.”
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 i
