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TMI Blog2022 (8) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... al remedies under the Act and the Real Estate (Regulation and Development) Act, 2016 and have explained the remedial choices of a consumer under these statutes. We have held that the Commission created under the Act has the power to direct refund under Section 14 of the Act. We conclude that the Act and the RERA Act neither exclude nor contradict each other and they must be read harmoniously to subserve their common purpose. 2. The brief facts of the case are that the Developer, M/s Experion Developers Private Ltd., is the promoter of apartment units, Windchants, in Sector 112, Gurgaon, Haryana. The Consumer booked an apartment measuring 3525 sq. ft. for a total consideration of Rs. 2,36,15,726/- in the Windchants and agreed for construction linked payment plan, which led to the execution of the Apartment Buyer's Agreement dated 26.12.2012. As per Clause 10.1 of the Agreement, possession was to be given within 42 months from the date of approval of the building plan or the date of receipt of the approval of the Ministry of Environment and Forests, Government of India for the Project or date of the execution of the agreement whichever is later. Clause 13 of the Agreement provided f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Commission, Shri Gagan Gupta, on behalf of the Developer submitted that the decision of this Court in Pioneer has no application to the facts of the present case, as in Pioneer, the Court did not have to deal with Delay Compensation Clause like in the present case. Terms of the Apartment Buyer's Agreement alone, according to him, would govern the relations between the parties. He argued that no prejudice would be caused to the Consumer if he is asked to take possession of the property. Referring to the provisions of the Real Estate (Regulation and Development) Act, 2016 hereinafter referred to as "RERA Act". and particularly to the Regulations made by Haryana Real Estate Regulatory Authority, which were relied on in Pioneer case, he submitted that the Consumer has elected to proceed under the Consumer Protection Act, 1986 and therefore the provisions of RERA Act will not apply and the Pioneer cannot be followed as a precedent. In the alternative, he argued that the interest granted by the Commission is excessive in both the period of the grant and the rate of interest. 5.3 Shri Jitendra Chaudhary, learned counsel on behalf of the Consumer, supported the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any loss of whatsoever nature ('Delay Compensation') for every month of delay or part thereof until the date of Notice of Possession. The Buyer shall be entitled to payment/adjustment of the Delay Compensation only at the time of payment of the final installment and other dues and charges payable to the Company before assuming the possession of the Apartment. No other claim of any description shall be raised against the Company". 8.1. On the question of reckoning the date for handing over of possession of the apartment, the Commission recorded the fact admitted by the Developer in Para 2 of its reply that "the trigger date for clause 10.1 is 26.12.2012, which is the date of execution of the apartment buyer's agreement". The Commission calculated 42 months from this period, which turns out to be 26.06.2016. Further, adding the 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the flats by the builder. 7. In view of the above discussion, we have no hesitation in holding that the terms of the apartment buyer's agreement dated 8-5-2012 were wholly one-sided and unfair to the respondent flat purchaser. The appellant builder could not seek to bind the respondent with such one-sided contractual terms." 9.1 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 following are instances where the terms of the Apartment Buyer's Agreement were found to be oppressive, constituting unfair trade practice and the Court has not given effect to such terms of the Agreement: 9.2 In Arifur Rahman Khan v DLF Southern Homes Pvt. Ltd. Wing Commander Arifur Rahman Khan and Aleya Sultana & Ors. v. DLF Southern Homes Private Limited (2020) 16 SCC 512, this Court held that there is no embargo on the award of compensation beyond the rate stipulated in the Apartment Buyer's Agreement where handing over the possession of the flat has been delayed. The Court observed that the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n incident of the power to discontinue unfair or restrictive trade practices. It was held: "34. We are of the view 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 the1986 Act, the powers of the consumer for a 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. 35. In view of the above, we hold that the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the apartment buyer's Agreement." 10. Having examined various decisions of this Court which considered similar clauses in Apartment Buyer's Agreement and following the ratio laid down in Pioneer case, the submission made on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiate or could be called upon to invoke the remedies in arbitration. ii) in cases covered under Clause (A) hereinabove, in accordance with law laid down in Emaar MGF Land Ltd. Vs. Aftab Singh, he could still choose to proceed under the CP Act. 25. In terms of Section 18 of the RERA Act, if a promoter fails to complete or is unable to give possession of an apartment duly completed by the date specified in the agreement, the promoter would be liable, on demand, to return the amount received by him in respect of that apartment if the allottee wishes to withdraw from the Project. Such right of an allottee is specifically made "without prejudice to any other remedy available to him". The right so given to the allottee is unqualified and if availed, the money deposited by the allottee has to be refunded with interest at such rate as may be prescribed. The proviso to Section 18(1) contemplates a situation where the allottee does not intend to withdraw from the Project. In that case he is entitled to and must be paid interest for every month of delay till the handing over of the possession. It is up to the allottee to proceed either under Section 18(1) or under proviso to Section 18(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt had an occasion to consider the question as to whether, the provisions of the RERA Act, must be given primacy over the Consumer Protection Act, 1986. After re-examining the provisions of Consumer Protection Act, 1986 and the RERA Act, and following the principles laid down in Imperia the Court held as under :- "37. We will now consider the provisions of the RERA Act, which was brought into 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 standardization 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 standardization has been a constrained to the healthy and orderly growth of industry. Therefore, the need for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and without primacy. When Statutes provisioning judicial remedies fall for construction, the choice of the interpretative outcomes should also depend on the constitutional duty to create effective judicial remedies in furtherance of access to justice. A meaningful interpretation that effectuates access to justice is a constitutional imperative and it is this duty that must inform the interpretative criterion. 14.2 When Statutes provide more than one judicial fora for effectuating a right or to enforce a duty-obligation, it is a feature of remedial choices offered by the State for an effective access to justice. Therefore, while interpreting statutes provisioning plurality of remedies, it is necessary for Courts to harmonise the provisions in a constructive manner. It is beneficial to juxtapose the preambular objects of the Consumer Protection Act and the RERA Act to appreciate the commonality of the objects that both these statutes are to sub-serve: The Consumer Protection Act, 1986 The Real Estate (Regulation and Development) Act, 2016 An Act to provide for the better protection of the interests of consumers and for that purpose to make provision for the establishment of con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory position that the Commission is empowered to direct refund of the price or the charges paid by the consumer. 16. A consumer invoking the jurisdiction of the Commission can seek such reliefs as he/she considers appropriate. A consumer can pray for refund of the money with interest and compensation. The consumer could also ask for possession of the apartment with compensation. The consumer can also make a prayer for both in the alternative. If a consumer prays for refund of the amount, without an alternative prayer, the Commission will recognize such a right and grant it, of course subject to the merits of the case. If a consumer seeks alternative reliefs, the Commission will consider the matter in the facts and circumstances of the case and will pass appropriate orders as justice demands. This position is similar to the mandate under Section 18 of the RERA Act14 with respect to which the Court clarified the position in Para 25 of Imperia case referred to herein above. 17. We have referred to the legal regime under the Consumer Protection Act, only to show that the Commission has the power and jurisdiction to direct return of money under Section 14 of the Consumer Protection Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. SBINR520150404130637 12,04,780.00 12,169.00 12,16,949.00 15.07.2015 EFT No. SBIN615196779388 6,44,134.00 10,135.00 6,54,269.00 14.08.2015 EFT No. SBIN815226374771 12,21,122.00 11,735.00 12,32,857.00 31.10.2015 EFT No. SBIN415304825817 11,92,402.00 11,735.00 12,04,137.00 08.06.2016 EFT No. 616019949933 13,370.00 Nil/NA 13,370.00 TOTAL: Rs. 2,06,41,379/- (Rupees Two Crore Six Lacs Forty One Thousand Three Hundred and Seventy Nine Only) 21. On the other hand, the Appellant-Developer submitted that (i) period for interest should be linked to the estimated date of possession and not the date of payments and (ii) the rate of interest must be the rate provided in the Interest Act, 1978. 22.1 We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the 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) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person and utilized in such manner as may be prescribed. ...... (i) to provide for adequate costs to parties. 2. Definitions. - (1) In this Act, unless the context otherwise requires,- ............ (g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;" 14 18. Return of amount and compensation. - (1) If the promoter fails to complete or is unable to give possession of an apartment, plot or building,- (a) in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or (b) due to 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, pl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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