TMI Blog2022 (8) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... grace period of 180 days, the time for delivery would expire on 26.12.2016. It is again an admitted fact that the occupancy certificated was obtained only on 23.07.2018 and notice for possession was issued to the Consumer on 24.07.2018. Given the factual position and having examined the terms of the Agreement, the Commission found the judgment of this Court in Pioneer is a relevant and conclusive precedent. The principle laid down in Pioneer s case has been followed consistently in many cases where the terms of the Apartment Buyer s Agreement were found to be one-sided and entirely loaded in favour of the Developer, and against the allottee at every step - the Commission is correct in its approach in holding that the clauses of the agreement are one-sided and that the Consumer is not bound to accept the possession of the apartment and can seek refund of the amount deposited by her with interest. Whether the Commission has the power under the Consumer Protection Act, 1986 to direct refund of the amount deposited by the Consumer with interest? - HELD THAT:- In view of the clear and categorical principles laid down in Imperia, the submissions made on behalf of the Developer ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 6044 of 2019 CIVIL APPEAL NO. 7149 of 2019 - - - Dated:- 7-4-2022 - JUSTICE UDAY UMESH LALIT , JUSTICE S. RAVINDRA BHAT And JUSTICE PAMIDIGHANTAM SRI NARASIMHA JUDGMENT PAMIDIGHANTAM SRI NARASIMHA, J. 1. These appeals under Section 23 of the Consumer Protection Act, 1986 hereinafter referred to as the Act , arise out of the judgment dated 19.06.2019 passed by the National Consumer Disputes Redressal Commission hereinafter referred to as Commission . The Commission directed the Appellant-Developer to refund an amount of Rs. 2,06,41,379 with interest @ 9% p.a. to the Respondent-Consumer hereinafter referred to as the Consumer for its failure to deliver possession of the apartment within the time stipulated as per the Apartment Buyers Agreement. In these appeals, we have upheld the Commission s order insofar as it directed the Developer to refund the amounts paid by the Consumer with interest for the unjustifiable delay in delivering the apartment. On law, we have considered the interplay between the judicial remedies under the Act and the Real Estate (Regulation and Development) Act, 2016 and have explained the remedial choices of a consumer under these stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Commission, in its judgment dated 19.06.2019, allowed the complaint after referring to Clause 10 (relating to the project completion period), Clause 11 (relating to the possession and conveyance of the apartment), as well as Clause 13 (relating to delay in possession). The Commission found that the agreement is one-sided, heavily loaded against the allottee and entirely in favour of the Developers. Following the decisions of this Court in Pioneer Urban Land and Infrastructure Ltd. v. Govind Raghvan, Pioneer Urban Land and Infrastructure Ltd. v. Govindan Raghvan (2019) 5 SCC 725 ( Pioneer ), the Commission directed the Developer to refund the amount of Rs.2,36,15,726/- with interest @ 9% p.a. 5.1 It is against these findings and the consequential directions of the Commission that the Developer filed the present Civil Appeal No. 6044/2019. The Consumer also filed an appeal being Civil Appeal No. 7149/2019, challenging the Commission's judgment to a limited extent for grant of an enhanced interest @ 24% p.a. 5.2 Assailing the judgment of the Commission, Shri Gagan Gupta, on behalf of the Developer submitted that the decision of this Court in Pioneer has no application t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y two) months from the date of approval of the Building Plans or the date of receipt of the approval of the Ministry of Environment and Forests, Government of India for the Project or execution of this Agreement, whichever is later ( Commitment Period ). The Buyer further agrees that the Company shall additionally be entitled to a time period of 180 (one hundred and eighty) days ( Grace Period ), after expiry of the Commitment Period for unforeseen and unplanned Project realities. However, in case of any default under this Agreement that is not rectified or remedied by the Buyer within the time period as may be stipulated, the Company shall not be bound by such Commitment Period. 13 DELAY COMPENSATION: 13.1 If the Company fails to offer the possession of the Apartment to the Buyer by the end of the Grace Period (or an alternate apartment within the meaning of this Agreement), it shall be liable to pay to the Buyer liquidated damages calculated at the rate of Rs. 7.50/- (Rupees Seven and Fifty Paise only) per sq. ft. of Sale Area as full and final settlement of any loss of whatsoever nature ( Delay Compensation ) for every month of delay or part thereof until the date of N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice on the part of the appellant builder. The respondent flat purchaser was justified in terminating the apartment buyer s agreement by filing the consumer complaint, and cannot be compelled to accept the possession whenever it is offered by the builder. The respondent purchaser was legally entitled to seek refund of the money deposited by him along with appropriate compensation. 6.3 The National Commission in the impugned order dated 23-10-2018 held that the clauses relied upon by the builder were wholly one-sided, unfair and unreasonable, and could not be relied upon ... 6.8 A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the agreement dated 8-5-2012 are ex facie one-sided, unfair 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. 7. In view of the above discussion, we have no hesitation in holding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion as an incident of its power to direct removal of a deficiency in service; they are not constrained by the rate prescribed in the agreement. The Court held that the compensation could be granted even if possession had been delivered. The same principle followed in a subsequent decision in DLF Home Developers Ltd. v. Capital Greens Flat Buyers DLF Home Developers Ltd. v. Capital Greens Flat Buyers Association Ors. (2021) 5 SCC 537 . 9.4 A three-judge bench of this Court in IREO Grace Realtech (P) Ltd. V. Abhishek Khanna IREO Grace Realtech (P) Ltd. v. Abhishek Khanna Ors. (2021) 3 SCC 241 noticed the delay compensation clause, which is similar to the clause in the present case, which provided that the Developer would be liable to pay delay compensation @ Rs 7.5 per square foot which works out to approximately 0.9 to 1% p.a. The Court held that this Clause is one-sided and entirely loaded in favour of the Developer and against the allottee. The Court concluded that the powers of the Consumer Court were in no manner constrained to declare a contractual term as unfair and one-sided as an incident of the power to discontinue unfair or restrictive trade practices. It was he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatutes, this Court held as under: 23. 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. 24. 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 the 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 remed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 allottees concerned 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 (x) of the letter dated 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 . 13.1 In view of the clear and categorical principles laid down in Imperia, the submissions made on behalf of the Developer have to be rejected. This position has also been affirmed in IREO Grace (supra). In IREO Grace (supra) this Court had an occasion to consider the questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Section 18 of the RERA Act imposed a liability on the promoter to return the amount with interest to the allottee upon its failure to give possession in accordance with the terms of the agreement. The expression without prejudice to any other remedy available in Section 18 of the RERA Act is very important and while noting the same the Court observed as under: 42. In a recent judgment delivered by this Court in Imperia Structures Ltd. v. Anil Patni, 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 r 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.. 14.1 From the two decisions referred to by us, it is crystal clear that the Consumer Protection Act and the RERA Act neither exclude nor contradict each other. In fact, this Court has held that they are concurrent remedies operating independently and without primacy. Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 15. We may hasten to clarify that the power to direct refund of the amount and to compensate a consumer for the deficiency in not delivering the apartment as per the terms of Agreement is within the jurisdiction of the Consumer Courts. Under Section 14 of the Consumer Protection Act, if the Commission is satisfied that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to, return to the complainant the price or as the case may be, the charges paid by the complainant. Deficiency is defined under Section 2(g) to include any shortcoming or inadequacy in performance which has been undertaken by a person in pursuance of a contract or otherwise relating to any service. These two provisions are re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yed that: (i) the payment of interest must be from the date of payment of each instalment and (ii) the rate of interest must be 24% p.a. He has referred to the dates on which he has made payments, and sought interest from the said dates: Details of payment made to the respondent: - Date Particulars Cheque Amount TDS Amount Total Amount 09.06.2012 State Bank of India Ch. No. 976226 11,00,000.00 Nil/NA 11,00,000.00 08.08.2012 State Bank of India Ch. No. 976245 11,98,457.00 Nil/NA 11,98,457.00 16.01.2013 State Bank of India Ch. No. 976251 17,81,531.00 Nil/NA 17,81,531.00 02.09.2013 State Bank of India Ch. No. 602777 17,74,289.00 17,923.00 17,92,212.00 16.01.2014 State Bank of India Ch. No. 506049 17,74,290.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of the deposit of the amounts. The Commission in the order impugned has granted interest from the date of last deposit. We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt Ltd v. DS Dhanda DLF Homes Panchkula Pvt. Ltd. v. DS Dhanda and Ors. (2020) 16 SCC 318 (at para 21) and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the appeal filed by purchaser deserves to be partly allowed. The interests shall be payable from the dates of such deposits. 22.2 At the same time, we are of the opinion that the interest of 9 per cent granted by the Commission is fair and just and we find no reason to interfere in the appeal filed by the Consumer for enhancement of interest. 23. We were informed that the Appellant-Developer deposited a sum of Rs. 50,000/- in the registry of this Court as per proviso to Section 23 of the Act. This amount shall be made over to the Respondent-Consumer, to be adjusted against the final amount payable by the Developer to the Consumer. 24. In view of the above, the Civil Appeal No. 6044 of 2019 filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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: 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 sub-section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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