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2021 (9) TMI 1154 - SC - Indian LawsRefund of the amounts deposited by the Apartment Buyers - inordinate delay in completing the construction and obtaining the Occupation Certificate - determination of the date from which the 42 months period for handing over possession is to be calculated - whether it would be from the date of issuance of the Fire NOC as contended by the Developer or, from the date of sanction of the Building Plans, as contended by the Apartment Buyers? - terms of the Apartment Buyer's Agreement were one-sided - applicability of such terms on the Apartment Buyers - Real Estate (Regulation and Development) Act, 2016 having primacy over the Consumer Protection Act, 1986 or not - termination of agreement on account of the inordinate delay in handing over possession. Determination of the date for handing over Possession - whether the 42 months' period is to be calculated from the date when the Fire NOC was granted by the concerned authority, as contended by the Developer or, the date on which the Building Plans were approved, as contended by the Apartment Buyers? - HELD THAT:- It was a mandatory requirement under the Haryana Fire Safety Act, 2009 to obtain the Fire NOC before commencement of construction activity. This requirement is stipulated in the sanctioned Building Plans, as also in the Environment Clearance. The 42 months' period in Clause 13.3. of the Agreement for handing over possession of the apartments would be required to be computed from the date on which Fire NOC was issued, and not from the date of the Building Plans being sanctioned - In the present case, the Developer obtained approval of the Building Plans from the Directorate, Town and Country Planning, Haryana, on 23.07.2013. The Developer applied for issuance of Fire NOC for the Fire Fighting Scheme of the Group Housing Colony within the 90 days period before the Director, Fire Service, Panchkula. On 27.11.2014, the Director, Haryana Fire Service granted approval to the Fire Fighting Scheme subject to the conditions mentioned therein. The computation of the period for handing over possession would be computed from this date. The Commitment Period of 42 months plus the Grace Period of 6 months from 27.11.2014, would be 27.11.2018, as being the relevant date for offer of possession - thus, there is a delay of approximately 7 months in obtaining the Fire NOC by the Developer. Whether the terms of the Apartment Buyer's Agreement are one-sided? - the Agreement in this case, contains wholly one-sided clauses or not - HELD THAT:- The incorporation of such one-sided and unreasonable clauses in the Apartment Buyer's Agreement constitutes an unfair trade practice Under Section 2(1)(r) of the Consumer Protection Act. Even under the 1986 Act, the powers of the consumer fora were in no manner constrained to declare a contractual term as unfair or one-sided as an incident of the power to discontinue unfair or restrictive trade practices. An "unfair contract" has been defined under the 2019 Act, and powers have been conferred on the State Consumer Fora and the National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which was implicit under the 1986 Act - the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer's Agreement. Whether primacy to be given to RERA over the Consumer Protection Act? - HELD THAT:- In a recent judgment delivered by this Court in IMPERIA STRUCTURES LTD. VERSUS ANIL PATNI AND OTHERS [2020 (11) TMI 189 - SUPREME COURT], it was held that remedies under the Consumer Protection Act were in addition to the remedies available under special statutes. The absence of a bar Under Section 79 of the RERA Act to the initiation of proceedings before a fora which is not a civil court, read with Section 88 of the RERA Act makes the position clear. Section 18 of the RERA Act specifies that the remedies are "without prejudice to any other remedy available". Whether the Apartment Buyers are entitled to terminate the Agreement, or refund of the amount deposited with Delay Compensation? - HELD THAT:- The factum of delay in completing the construction and making the offer of possession is an undisputed fact in this case - the Developer is directed to refund the entire amount deposited by this Respondent alongwith Interest @ 9% S.I. p.a. within a period of 4 weeks from the date of this judgment. The failure to refund the amount within 4 weeks will make the Developer liable for payment of default interest @ 12% S.I. p.a. till the payment is made. Appeal disposed off.
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