TMI Blog2021 (9) TMI 1154X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is made. Appeal disposed off. - Civil Appeal Nos. 5785, 7615, 7975, 8454, 8480, 8482, 8785-94, 9139, 9216, 9638 of 2019 and 3064 of 2020 - - - Dated:- 11-1-2021 - Dr. D.Y. Chandrachud, Indu Malhotra and Indira Banerjee, JJ. JUDGMENT Indu Malhotra, J. 1. The present batch of Appeals has been filed by the Appellant-Developer, to challenge the judgment passed by the National Consumer Disputes Redressal Commission ( National Commission ) directing refund of the amounts deposited by the Apartment Buyers in the project The Corridors developed in Sector 67-A, Gurgaon, Haryana, on account of the inordinate delay in completing the construction and obtaining the Occupation Certificate. Aggrieved by the said Judgment, the Appellant-Developer has filed the present batch of Appeals Under Section 23 of the Consumer Protection Act, 1986 ( Consumer Protection Act ). Since common issues have arisen for consideration, they are being decided by a common Judgment. For the sake of brevity, the facts in Civil Appeal No. 5785 of 2019 are being referred to as the lead matter. 2. The Department of Town and Country Planning granted a license to Respondent No. 3 - Precision R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nent would obtain all other statutory clearances, such as the approval for storage of diesel from the Chief Controller of Explosives, Fire Department, Civil Aviation Department, Forest Conservation Act, 1980 and Wildlife (Protection) Act, 1972, Forest Act, 1927, PLPA 1900 etc. from the concerned authorities, prior to the construction of the project. 7. The Apartment Buyers vide letter dated 25.03.2014 received a copy of the Apartment Buyer's Agreement with a construction linked payment plan, which is extracted hereunder: 8. On 12.05.2014, the Developer executed the Apartment Buyer's Agreement in favour of Respondent No. 1 - Apartment Buyer for a total consideration of ₹ 1,45,22,006/-. The relevant terms of the Apartment Buyer's Agreement are set-out hereinbelow: Clause 6 pertains to payment of Earnest Money, and reads as: 6. EARNEST MONEY The Company and the Allottee hereby agree that 20% (Twenty percent) of the Sale Consideration of the Apartment shall be deemed to constitute the Earnest Money . (emphasis supplied) Clause 7 pertains to payment of instalments, and provides that: 7. PAYMENT OF INSTALLMENTS 7.1 The Allottee has op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may alternatively, in its sole discretion, instead decide to enforce the payment of all its dues from the Allottee by seeking Specific Performance of this Agreement. Further, in every such case of delayed payment, irrespective of the type of Payment Plan, the subsequent credit of such delayed installments(s)/payments along with delayed interest in the account of the Company shall not however constitute waiver of the right of termination reserved herein and shall always be without prejudice to the rights of the Company to terminate this Agreement in the manner provided herein. 7.5 Save and except in the case of any bank, financial institution or company with whom a tripartite agreement has been separately executed for financing the said Apartment, or where the Company has given its permission to mortgage to any bank, financial institution or company for extending a loan to the Allottee against the said Apartment, the Company shall not be responsible towards any other third party, who has made payments or remittances to the Company on behalf of the Allottee and any such third party shall not have any right against the said Apartment or under this Agreement whatsoever. The Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take the possession of the said Apartment within the time indicated in the said Notice of Possession, the Allottee shall be deemed to have become the custodian of the said Apartment from the date indicated in the Notice of Possession and the said Apartment shall thenceforth remain at the sole risk and cost of the Allottee itself. 13.2. Notwithstanding any other provisions of this Agreement, the Allottee agrees that if it fails, ignores or neglects to take the possession of the said Apartment in accordance with the Notice of Possession sent by the Company, the Allottee shall be liable to pay additional charges equivalent to ₹ 7.5 (Rupees Seven Half only) per sq. ft. on the Super Area per month of the said Apartment ( Holding Charges' ). The Holding Charges shall be a distinct charge in addition to the maintenance charges and not related to any other charges/consideration as provided in this Agreement. 13.3 Subject to Force Majeure, as defined herein and further subject to the Allottee having complied with all its obligations under the terms and conditions of this Agreement and not having defaulted under any provision(s) of this Agreement including but not limited t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for termination. This option may be exercised by the Allottee only up till dispatch of the Notice of Possession by the Company to the Allottee whereupon the said option shall be deemed to have irrevocably lapsed. No other claim, whatsoever, monetary or otherwise shall lie against the Company and/or the Confirming Parties nor be raised otherwise or in any other manner by the Allottee. 13.6. If, however, the completion of the said Apartment is delayed due to Force Majeure as defined herein, the Commitment Period and/or the Grace Period and/or the Extended Delay Period, as the case may be, shall stand extended automatically to the extent of the delay caused under the Force Majeure circumstances. The Allottee shall not be entitled to any compensation whatsoever, including Delay Compensation for the period of such delay. 13.7. Under no circumstances shall the possession of the said Apartment be given to the Allottee and the Allottee shall not be entitled to the possession of the said Apartment unless and until the full payment of the Sale Consideration and any other dues payable under the Agreement have been remitted to the Company and all other obligations imposed under this Agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unts already paid by the Allottee to the Company, without any interest, and after forfeiting and deducting the Earnest Money, interest on delayed payments, brokerage/commission/charges, service tax and other amounts due and payable to it, only after resale of the said Apartment. Upon termination of this Agreement by the Company, save for the right to refund, if any to the extent agreed hereinabove, the Allottee shall have no further right or claim against the Company and/or the Confirming Parties which, if any, shall be deemed to have been waived off by the Allottee and the Allottee hereby expressly consents thereto. The Company shall thenceforth be free to deal with the said Apartment in any manner whatsoever, in its sole and absolute discretion and in the event that the Allottee has taken possession of the said Apartment and everything whatsoever contained therein and in such event, the Allottee and/or any other person/occupant of the said Apartment shall immediately vacate the said Apartment and otherwise be liable to immediate ejectment as an unlawful occupant/trespasser. This is without prejudice to any other rights available to the Company against the Allottee. (emphasis s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was further mentioned that the office of the District Town Planner (Enforcement), Gurgaon, Haryana, vide a restraint order dated 20.02.2017 issued Memo No. 525-526 to the Developer to immediately stop the construction with respect to Tower-A and Tower-B for causing harassment to the buyers. 10. The Developer filed its reply to the Consumer Complaint submitting that there was no delay in offering possession of the flats, since as per Clause 13.3 of the Agreement, possession was to be handed over to the allottees within 42 months from the date of approval of the Building Plans, which included fulfilment of the conditions imposed thereunder. The Building Plan approval had been granted on 23.07.2013, which stipulated compliance with several pre-conditions, including obtaining Fire Safety Scheme approval. This approval was granted only on 27.11.2014. Consequently, the 48 months' time period for delivery of possession of the apartment would commence only on 27.11.2014, and expire on 27.11.2018. Consequently, there was no delay in offering possession of the apartments. Hence, the complaint was premature and liable to be dismissed. 11. The National Commission in another case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court in IREO v. Surendra Arora Civil Appeal (Diary) No. 48101 of 2018 on 28.01.2019. 13. With respect to the same project, an Apartment Buyer filed a complaint Under Section 31 of the Real Estate (Regulation Development) Act, 2016 ( RERA Act ) read with Rule 28 of the Haryana Real Estate (Regulation Development) Rules, 2017 before the Haryana Real Estate Regulatory Authority, Gurugram ( RERA ). In this case, the Authority vide order dated 12.03.2019 held that since the environment clearance for the project contained a pre-condition for obtaining Fire Safety Plan duly approved by the Fire Department before starting construction, the due date for possession would be required to be computed from the date of Fire Approval granted on 27.11.2014, which would come to 27.11.2018. Since the Developer had failed to fulfil the obligation Under Section 11(a) of this Act, the Developer was liable under the proviso to Section 18 to pay interest at the prescribed rate of 10.75% p.a. on the amount deposited by the complainant, upto the date when the possession was offered. However, keeping in view the status of the project, and the interest of other allottees, the Authority was of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Directorate of Town and Country Planning, stipulated that: 17(iv). That the Coloniser shall obtain the clearance/NOC as per the provisions of the Notification No. SO 1533(E) : dated 14.09.2006 issued by the Ministry of Environment Forests, Government of India before starting the construction/execution of development works at site. (emphasis supplied) This stipulation has been affirmed by the RERA, a specialised fact-finding authority in respect of real estate projects, while interpreting the starting point of the 42 months period from the date of fire safety approval. Since the fire safety approval was obtained on 27.11.2014, the period of 42 months would commence from this date. The due date for handing over possession of apartments must be taken to be 27.11.2018 i.e. 42 months from the date of obtaining the Fire Safety NOC on 27.11.2014, and a Grace Period of 6 months. In this view of the matter, the complaint filed before the National Commission was premature and liable to rejected. (b) The Apartment Buyers were bound by the terms of the Apartment Buyer's Agreement, which clearly states that the Commitment Period would start only after fulfilment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. (h) It was submitted that the Respondents in Civil Appeals No. 7615, 7975, 8454, 8480, 8482, 8785-8794, 9139, 9216 and 9638 of 2019; and the Appellant in Civil Appeal No. 3064 of 2020, are defaulters since they had paid only between 30 to 40% of the total consideration. These buyers had breached their obligation to make payments as per the construction linked payment plan. Despite this, the Developer had made an alternate offer of similar units in the completed towers in Phase 1 of the project where the Occupation Certificate had been granted, before the expiry of the Extended Delay Period. (i) It was contended that the decision of the RERA must be given primacy over the National Commission. The impugned judgment passed by the National Commission was in direct conflict with the judgment passed by the RERA, Haryana since the National Commission had assumed the due date for offer of possession as 23.01.2017. The RERA had correctly held that the due date for delivery of possession of apartments under the Agreement was 27.11.2018. RERA had directed the Developer to hand over possession by 30.06.2020, as mentioned in the Registration Certificate filed before the RERA. In view o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Phase I of the project in 2019, after a delay of 1 years. Assuming that the date for possession would begin from the date of issuance of the Fire NOC i.e. 27.11.2014, the Developer was required to offer possession by 27.11.2018. The Developer offered possession in Phase I of the Project to certain Apartment Buyers only after it received the Occupation Certificate in 2019. With respect to the majority of the apartment buyers before this Court, their allotments were in Towers which were in Phase II of the project, where O.C. is yet to be obtained even as on date. Consequently, there has been a delay of over 3 years. (b) The grant of Fire NOC was not a pre-condition for commencement of construction work. In fact, the Developer had started the construction before the grant of Fire NOC. Therefore, it could not be contended that the delay in issuance of the Fire Safety clearance had impeded the construction of the units allotted to the Respondents. (c) The Developer had sought payment of the first three instalments prior to receiving the Fire NOC. The third instalment was paid on 18.03.2014, before the grant of Fire NOC. (d) It was further submitted that neither the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession. Clause 13.3 of the Agreement states that the Developer proposed to offer possession of the apartment to the allottee within a period of 42 months from the date of approval of the Building Plans and/or fulfilment of the pre-conditions imposed thereunder, referred to as the Commitment Period . The Company would be entitled to a further Grace Period of 180 days' after the expiry of the Commitment Period for unforeseen delays beyond the reasonable control of the Company. This would work out to 42 + 6 months i.e. 48 months. 18.1. The point of controversy is 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. 18.2. Section 15 of the Haryana Fire Safety Act, 2009 makes it mandatory for a Builder/Developer to obtain the approval of the Fire Fighting Scheme conforming to the National Building Code of India, and obtain a No Objection Certificate before the commencement of construction. Section 15 is extracted hereinbelow for ready reference: 15. Approval of Fire Fighti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ans sanctioned by the Directorate of Town and Country Planning, Haryana contained the Terms Conditions of Approval, which included a provision for Fire Safety contained in Clause (3). The Developer was directed to submit Fire Safety Plans indicating the complete Fire Protection Arrangements, and means of escape/access for the proposed building with suitable legend and standard signs. Clause 3 of the Building Plans contained a provision for Fire Safety, which reads: 3. FIRE SAFETY On receipt of the above request the Commissioner, Municipal Corporation, Gurgaon after satisfying himself that the entire fire protection measures proposed for the above buildings are as per NBC and other Fire Safety Bye Laws, and would issue a NOC from Fire safety and means of escape/access point of view. This clearance/NOC from Fire Authority shall be submitted in this office along with a set of plans duty signed by the Commissioner, Municipal Corporation, Gurgaon within a period of 90 days from the date of issuance of sanction of building plans. Further, it is also made clear that no permission for occupancy of the building shall be issued by Commissioner, Municipal Corporation, Gurgaon unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cement of construction activity. This requirement is stipulated in the sanctioned Building Plans, as also in the Environment Clearance. 18.9. 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. 18.10. 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. The Commissioner vide letter dated 30.12.2013 raised 16 objections with respect to the proposed Fire Fighting Plan. The Developer vide letter dated 22.01.2014 responded to the objections, submitting that the objections had been cured, and requested that the approval of the Fire Fighting Scheme be granted on a priority basis. The Fire Department informed the Developer vide letter dated 28.03.2014 that the deficiencies in the application for Fire NOC had not been cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Buyer's Agreement was ₹ 10,350/- per sq. ft. The compensation payable for delay was ₹ 7.5 per sq. ft. The compensation payable by the Developer for delay in offering possession works out to: e) Clause 13.5 provides that the allottee may opt for termination, only after 42 months from the date of issuance of Fire NOC + 6 months' Grace Period, plus a further period of 12 months. The Delay Compensation would be payable to the allottee only if the termination was validly opted . The compensation was limited to a fixed period of 12 months only, and that no other claim whatsoever, whether monetary or otherwise, was payable by the Developer. f) Clause 13.8 of the Agreement provides that the allottee shall be deemed to have waived all its claims in respect of the area, specifications, quality, construction, any other provision in the apartment against the Developer upon taking possession of the apartment. g) Clause 21 provides for termination of the Agreement and forfeiture of earnest money by the Developer, if the allottee neglects or fails to make timely payments as stipulated in the Agreement, or fails to exercise the options offered by the Develope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice . The amended Section 2(1)(o) reads as follows: 2(1)(o) service means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service; (emphasis supplied) In Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243, this Court discussed the legislative intent of including housing construction within the ambit of 'service' as: 2..... A scrutiny of various definitions such as 'consumer', 'service', 'trader', 'unfair trade practice' indicates that legislature has attempted to widen the reach of the Act. Each of these definitions are in two parts, one, explanatory and the other explanatory. The explanatory or the main part itself uses expressions of wide amplitude indicating clearly its wide sweep, then its ambit is widened ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of property is not delivered within stipulated period the delay so caused is denial of service. Such disputes or claims are not in respect of immoveable property as argued but deficiency in rendering of service of particular standard, quality or grade. Such deficiencies or omissions are defined in Sub-clause (ii) of Clause (r) of Section 2 as unfair trade practice. .... A person who applies for allotment of a building site or for a flat constructed by the development authority or enters into an agreement with a builder or a contractor is a potential user and nature of transaction is covered in the expression 'service of any description'. It further indicates that the definition is not exhaustive. The inclusive Clause succeeded in widening its scope but not exhausting the services which could be covered in earlier part. So any service except when it is free of charge or under a constraint of personal service is included in it. Since housing activity is a service it was covered in the Clause as it stood before 1993. 19.4. Clause 2(1)(r) of the Consumer Protection Act, 1986 defines unfair trade practice as follows: 2(1)(r) unfair trade practice means a trade pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the builder. 19.5. In a similar case, this Court in Wg. Cdr. Arifur Rahman Khan and Ors. v. DLF Southern Homes Pvt. Ltd. affirmed the view taken in Pioneer (supra), and held that the terms of the agreement authored by the Developer does not maintain a level platform between the Developer and the flat purchaser. The stringent terms imposed on the flat purchaser are not in consonance with the obligation of the Developer to meet the timelines for construction and handing over possession, and do not reflect an even bargain. The failure of the Developer to comply with the contractual obligation to provide the flat within the contractually stipulated period, would amount to a deficiency of service. Given the one-sided nature of the Apartment Buyer's Agreement, the consumer fora had the jurisdiction to award just and reasonable compensation as an incident of the power to direct removal of deficiency in service. 19.6. Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right to be heard and to be assured that consumers interests will receive due consideration at appropriate forums; (e) the right to seek redressal against unfair trade practices or unscrupulous exploitation of consumers; and (f) right to consumer education. 3. These objects are sought to be promoted and protected by the Consumer Protection Council to be established at the Central and State level. 4. To provide speedy and simple redressal to consumer disputes, a quasi-judicial machinery is sought to be set up at the district, State and Central levels. These quasi-judicial bodies will observe the principles of natural justice and have been empowered to give relief of a specific nature and to award, wherever appropriate, compensation to consumers. Penalties for non-compliance of the orders given by the quasi-judicial bodies have also been provided. (emphasis supplied) 20.2. Section 3 of the Consumer Act provides that the remedies under the Act are in addition to, and not in derogation of any other law applicable. Section 3 reads as: 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 provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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(d) of the Consumer Protection Act. As a matter of fact, any attempt to exclude 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(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. 64. According to the learned Counsel for the Appellant, if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto force on 01.05.2016. The Statement of Objects and Reasons of the RERA Act, 2016 read as follows: THE STATEMENT OF OBJECTS AND REASONS The real estate sector plays a catalytic role in fulfilling the need and demand for housing and infrastructure in the country. While this sector has grown significantly in recent years, it has been largely unregulated, with absence of professionalism and standardisation and lack of adequate consumer protection. Though the Consumer Protection Act, 1986 is available as a forum to the buyers in the real estate market, the recourse is only curative and is not adequate to address all the concerns of buyers and promoters in that sector. The lack of standardisation has been a constraint to the healthy and orderly growth of industry. Therefore, the need for regulating the sector has been emphasised in various forums. In view of the above, it becomes necessary to have a Central legislation, namely, the Real Estate (Regulation and Development) Bill, 2013 in the interests of effective consumer protection, uniformity and standardisation of business practices and the transactions in the real estate sector. The proposed Bill provides for the establ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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. 20.8. Section 88 of the RERA Act is akin to Section 3 of the Consumer Protection Act, and provides that the provisions of the RERA Act shall apply in in addition to and not in derogation of other applicable laws. Section 88 reads as: 88. Application of other law 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. 20.9. An allottee may elect or opt for one out of the remedies provided by law for redressal of its injury or grievance. An election of remedies arises when two concurrent remedies are available, and the aggrieved party chooses to exercise one, in which event he loses the right to simultaneously exercise the other for the same cause of action. 20.10. The doctrine of election was discussed in A.P. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er an order Under Section 31 has been obtained but without executing it and withdrawing from those proceedings at any stage. The use of the expression without prejudice to the provisions of Section 29 of the Act in Section 31 cannot be read to mean that the Corporation after obtaining a final order Under Section 31 of the Act from a court of competent jurisdiction, is denuded of its rights Under Section 29 of the Act. To hold so would render the above-quoted expression redundant in Section 31 of the Act and the courts do not lean in favour of rendering words used by the Legislature in the statutory provisions redundant. The Corporation which has the right to make the choice may make the choice initially whether to proceed Under Section 29 of the Act or Section 31 of the Act, but its rights Under Section 29 of the Act are not extinguished, if it decides to take recourse to the provisions of Section 31 of the Act. It can abandon the proceedings Under Section 31 of the Act at any stage, including the stage of execution, if it finds it more practical, and may initiate proceedings Under Section 29 of the Act. The doctrine of election is based on the Rule of estoppel. In P.R. Deshpa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Motor Vehicles Act in one instance, when the claim could also fall under the Workmen's Compensation Act, 1923. That Section provides that death or bodily injury arising out of a motor accident which may also give rise to a claim for compensation under the Workmen's Compensation Act, can be enforced through the authorities under that Act, the option in that behalf being with the victim or his representative. But Section 167 makes it clear that a claim could not be maintained under both the Acts. In other words, a claimant who becomes entitled to claim compensation under both the Motor Vehicles Act, 1988 and the Workmen's Compensation Act, because of a motor vehicle accident has the choice of proceeding under either of the Acts before the forum concerned. By confining the claim to the authority or the Tribunal under either of the Acts, the legislature has incorporated the concept of election of remedies, insofar as the claimant is concerned. In other words, he has to elect whether to make his claim under the Motor Vehicles Act, 1988 or under the Workmen's Compensation Act, 1923. The emphasis in the Section that a claim cannot be made under both the enactments, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities Contracts (Regulation) Act, 1956, the Securities and Exchange Board of India Act, 1992, the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, or any other law for the time being in force. 20.11. In a recent judgment delivered by this Court in M/s. Imperia Structures Ltd. v. Anil Patni and Anr. (2020) 10 SCC 783, 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 . We place reliance on this judgment, wherein it has been held that: 31. 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 ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truction was completed, and possession offered on 28.06.2019, after the issuance of Occupation Certificate on 31.05.2019. The Developer is however obligated to pay Delay Compensation for the period of delay which has occurred from 27.11.2018 till the date of offer of possession was made to the allottees. (ii) Insofar as the allottee at Serial No. 3 in Chart A is concerned, he has filed Civil Appeal No. 3064 of 2020 Under Section 62 of the Insolvency and Bankruptcy Code, 2016 before this Court. We were informed by the Counsel for the allottee that the Developer had filed an affidavit dated 16.09.2019 before the National Company Law Tribunal ( NCLT ) stating that it was willing to refund the principal amount of ₹ 1,59,29,016/- in four equal instalments, and had produced photocopy of the cheques. The relevant portion of the affidavit filed by the Developer before the NCLT is extracted hereunder: 3. Without prejudice to contentions and averments raised during the course of arguments by the Corporate Debtor, the Corporate Debtor explored the possibility of the settlement with the Petitioner and had offered to pay the entire principal amount i.e. 1,59,29,016/- in a time bound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Banks. Consequently, we hold that the allottees in Chart B are entitled to refund of the entire amount deposited by them. (iv) In so far as award of compensation by payment of Interest is concerned, Clause 13.4 of the Apartment Buyer's Agreement provides that the Developer shall be liable to pay the allottee compensation calculated @ ₹ 7.5 per sq. ft. of the Super Area for every month of delay, after the end of the Grace Period. The compensation will be payable only for a period of 12 months. The Apartment Buyers in their Complaint filed before the National Commission made a prayer for refund of the amount deposited alongwith Interest @ 20% p.a. compounding quarterly till its realisation. The Apartment Buyers, in their submissions have stated that they have obtained home loans on which Interest @ 7.90% p.a. is being paid, even as on date. We have considered the rival submissions made by both the parties. The Delay Compensation specified in the Apartment Buyer's Agreement of ₹ 7.5 per sq. ft. which translates to 0.9% to 1% p.a. on the amount deposited by the Apartment Buyer cannot be accepted as being adequate compensation for the delay in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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