TaxTMI 
TaxTMI 
2020 (11) TMI 189
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....e 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 fac....
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...., equipment, facilities, materials or supplies, failure of transportation, strikes, lock outs, action of labour unions or any other cause (whether similar or dissimilar to the foregoing) not within the reasonable control of the Developer/Company. 5. On 01.05.2016, the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as, "the RERA Act") came into force. 6. Over a period of time the Respondents had paid Rs. 63,53,625/- out of the agreed sum of Rs. 76,43,000/-. However, even after four years there were no signs of the Project getting completed. In the circumstances Consumer Case No. 3011 of 2017 was preferred by the Respondents on 11.10.2017 before the Commission submitting, inter alia: 11. That the complainants regularly visited the site but were surprised to see that the construction was never in progress. No one was present on the site to address the queries of the buyers/allottees/purchases including the present complainant. The O.P. despite taking a substantial amount towards the consideration deliberately did not construct the towers in which house of the complainant was situated. The entire site seems to be an abandoned piece of land with semi con....
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....sation claimed Rs. 40,51,579/- 32. In view of the above, it is, therefore, most respectfully prayed that this Hon'ble Commission may kindly be pleased to: a. Direct the O.P. to refund the entire amount collected form the complainants towards the consideration of the Flat along with interest @ 18% p.a. on the amount paid by them from the date of each deposit of the amount till it is actually returned to the complaints. b. Direct the O.P. to pay a sum of Rs. 50,000/- (rupees fifty thousand only) to the complainants toward the cost of litigation. c. Any other order(s) as may be deemed fit and appropriate may also kindly be passed. The other nine Consumer Cases were also filed on the same day. 7. On 17.11.2017, the Project was registered with Haryana Real Estate Regulatory Authority, Panchkula (hereinafter referred to as, "Haryana Authority"). The letter dated 17.11.2017 issued by Haryana Authority stated: ..... Your request for registration of Group Housing Colony being developed over an area of 60460 Sq. Mtrs. Situated in Sector-37-C, Village Gharoli Khurd and Basai, Gurugram, Haryana with regard to License No. 64 of 2011 dated 16.07.2011 issued by the Director....
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....nse, sanctioned plans and other permissions issued by Competent Authorities under the provision of any other law for the time being in force as applicable to the project. In case any deficiency in fee is found at later stage and the same shall be recoverable from the promoter/owner accordingly. (x) The promoter shall return the amount with interest in case, allottee wishes to withdraw from the project due to discontinuance of promoter's business or promoter fails to give possession of the apartment/plot in accordance with terms and conditions of agreement for sale in terms of Sub-section(4) of Section-19. The promoter shall return the entire amount with interest as well as the compensation payable. The rate of interest payable by the promoter to the allottee or by the allottee to the promoter, as the case may be, shall be the State Bank of India highest marginal cost of lending rate plus two percent. The promoter shall adhere the provisions of The Real Estate (Regulation and Development) Act, 2016 and its Rules 2017 issued by the State Government. (xi) The promoter shall adopt the model agreement for sale (Annexure-A) of the Haryana Real Estate (Regulation and Development) ....
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....ion of this agreement unless there is delay or there shall be failure due to reasons beyond the control of the company including Force-Majeure events, delay due to compliance of new rules, Regulations, orders or notifications made/issued by government or any other authorities with respect to construction at the project site. 11. That the contents and averments made in Para 11 are wrong and denied. It is pertinent to mention here that the construction of the Tower in which the Unit of the Complainant was allotted is in full Swing and is nearing possession. The allegations levelled by the Complainant are concocted & baseless. 9. In their replication, the Respondents submitted, inter alia,: ..... the buyer's agreement was a fixed set of papers, which was asked to be signed by the complainant and no modification was entertained by the O.P. On request to change the one sided clauses, it was told that the buyer's agreement has to be signed as it is and in case it is not acceptable than the allotment will stand cancelled and earnest money will be forfeited. 10. Consumer Case No. 3011 of 2017 was allowed by the Commission by its judgment and order dated 12.09.2018. It w....
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....efund of the amounts deposited by each of the Complainants with simple interest @ 9% per annum from the respective dates of deposits alongwith Rs. 50,000/- towards costs. It was also directed that the amounts be deposited within four weeks, failing which the amounts would carry interest @ 12% per annum. 12. The Appellant being aggrieved preferred the instant appeals on 14.03.2019. By way of Additional Documents, a copy of the letter dated 17.11.2017 was placed on record. An order passed by Haryana Authority, Gurugram on 17.01.2019 in a complaint preferred by one Himanshu Giri was also placed on record. The directions issued in said order were to the following effect: "27. After taking into consideration all the material facts as adduced and produced by both the parties, the authority exercising powers vested in it Under Section 37 of the Real Estate (Regulation and Development) Act, 2016 hereby issues the following directions to the Respondent in the interest of justice and fair play: i. The Respondent is directed to provide delay possession charges at the prescribed rate of 10.75% per annum for every month of delay w.e.f. 15.9.2016 as per the provisions of Section 18(1) of th....
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.... 4. Consumer Case No. 3014 of 2017 Rs. 75,85,280/- NIL 5. Consumer Case No. 3015 of 2017 Rs. 56,39,495/- NIL 6. Consumer Case No. 3016 of 2017 Rs. 65,26,929/- NIL 7. Consumer Case No. 3017 of 2017 Rs. 65,76,497/- 8,00,000/- 8. Consumer Case No. 3018 of 2017 Rs. 56,76,600/- 8,00,000/- 9. Consumer Case No. 3019 of 2017 77,46,851/- NIL 10. Consumer Case No. 3020 of 2017 Rs. 1,02,66,866/- NIL Refund of Rs. 10,00,000/- to the Respondents, was made on 27.03.2019 i.e. even after filing of the leading appeal. 15. Mr. Vikas Singh, learned Senior Advocate for the Appellant submitted inter alia: a) The Appellant had completed Phase-I of the Project well-in-time and Phase-II of the Project concerning about 437 allottees was the matter in issue. Out of these 437 allottees, only in 59 cases complaints were filed under the CP Act, while Mr. Himanshu Giri had approached authorities under the RERA Act. A majority of the allottees had thus reposed faith in the Appellant. b) The Appellant had offered alternative ac....
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.... finding. c) In the backdrop of these findings, the Commission was justified in accepting the claim of the Complainants. In fact, the award of interest @ 9% per annum was at a lower level. d) At no stage, any plea was taken before the Commission that the Project was registered under the RERA Act or about the effect of the RERA Act. No such plea was taken even in the appeal memo. Consequently, it would not be open to the Appellant to raise any submissions about the applicability of the RERA Act. e) In any case, as construed by this Court consistently, the remedy afforded by the CP Act would be an additional remedy to a consumer and said legal position remained unchanged even after the enactment of the RERA Act. 17. Three Complainants viz. (a) Chandra Shekhar; (b) Rajat Verma; and (c) Krishan Kumar appeared in person and advanced submissions. It was submitted, inter alia, that the decision of the Commission did not call for any interference and that they be refunded the entire amount with 12% interest instead of 9% as awarded by the Commission. 18. At the outset, we must deal with two factual issues. It was concluded by the Commission that; (i) all the Complainants were '....
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....nvite persons to purchase in any manner any plot, apartment or building, as the case may be, in any real estate project or part of it, in any planning area, without registering the real estate project with the Real Estate Regulatory Authority established under this Act: PROVIDED that projects that are ongoing on the date of commencement of this Act and for which the completion certificate has not been issued, the promoter shall make an application to the Authority for registration of the said project within a period of three months from the date of commencement of this Act: PROVIDED FURTHER that if the Authority thinks necessary, in the interest of allottees, for projects which are developed beyond the planning area but with the requisite permission of the local authority, it may, by order, direct the promoter of such project to register with the Authority, and the provisions of this Act or the Rules and Regulations made thereunder, shall apply to such projects from that stage of registration. (2) Notwithstanding anything contained in Sub-section (1), no registration of the real estate project shall be required- (a) where the area of land proposed to be developed does not e....
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....ct or the phase thereof, and the whole project as sanctioned by the competent authority; (e) the plan of development works to be executed in the proposed project and the proposed facilities to be provided thereof including fire-fighting facilities, drinking water facilities, emergency evacuation services, use of renewable energy; (f) the location details of the project, with clear demarcation of land dedicated for the project along with its boundaries including the latitude and longitude of the end points of the project; (g) proforma of the allotment letter, agreement for sale, and the conveyance deed proposed to be signed with the allottees; (h) the number, type and the carpet area of apartments for sale in the project along with the area of the exclusive balcony or verandah areas and the exclusive open terrace areas apartment with the apartment, if any; (i) the number and areas of garage for sale in the project; (j) the names and addresses of his real estate agents, if any, for the proposed project; (k) the names and addresses of the contractors, architect, structural engineer, if any and other persons concerned with the development of the proposed project; (l) a ....
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....ations for registration of projects within a period of one year from the date of its establishment. 5. Grant of registration (1) On receipt of the application Under Sub-section (1) of Section 4, the Authority shall within a period of thirty days. (a) grant registration subject to the provisions of this Act and the Rules and Regulations made thereunder, and provide a registration number, including a Login Id and password to the applicant for accessing the website of the Authority and to create his web page and to fill therein the details of the proposed project; or (b) reject the application for reasons to be recorded in writing, if such application does not conform to the provisions of this Act or the Rules or Regulations made thereunder: PROVIDED that no application shall be rejected unless the applicant has been given an opportunity of being heard in the matter. (2) If the Authority fails to grant the registration or reject the application, as the case may be, as provided Under Sub-section (1), the project shall be deemed to have been registered, and the Authority shall within a period of seven days of the expiry of the said period of thirty days specified Under Sub-s....
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....ch other information as provided in this Act or the Rules and Regulations made thereunder or the agreement for sale signed with the promoter. (2) The allottee shall be entitled to know stage-wise time Schedule of completion of the project, including the provisions for water, sanitation, electricity and other amenities and services as agreed to between the promoter and the allottee in accordance with the terms and conditions of the agreement for sale. (3) The allottee shall be entitled to claim the possession of apartment, plot or building, as the case may be, and the association of allottees shall be entitled to claim the possession of the common areas, as per the declaration given by the promoter Under Sub-clause (C) of Clause (I) of Sub-section (2) of Section 4. (4) The allottee shall be entitled to claim the refund of amount paid along with interest at such rate as may be prescribed and compensation in the manner as provided under this Act, from the promoter, if the promoter fails to comply or is unable to give possession of the apartment, plot or building, as the case may be, in accordance with the terms of agreement for sale or due to discontinuance of his business as a ....
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....in the case of the Members in urban development, housing, real estate development, infrastructure, economics, technical experts from relevant fields, planning, law, commerce, accountancy, industry, management, social service, public affairs or administration: Provided that a person who is, or has been, in the service of the State Government shall not be appointed as a Chairperson unless such person has held the post of Additional Secretary to the Central Government or any equivalent post in the Central Government or State Government: Provided further that a person who is, or has been, in the service of the State Government shall not be appointed as a member unless such person has held the post of Secretary to the State Government or any equivalent post in the State Government or Central Government. 46. Qualifications for appointment of Chairperson and Members.- (1) A person shall not be qualified for appointment as the Chairperson or a Member of the Appellate Tribunal unless he,- (a) in the case of Chairperson, is or has been a Judge of a High Court; and (b) in the case of a Judicial Member he has held a judicial office in the territory of India for at least fifteen yea....
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....ensation Under Sub-section (1), shall be dealt with by the adjudicating officer as expeditiously as possible and dispose of the same within a period of sixty days from the date of receipt of the application: PROVIDED that where any such application could not be disposed of within the said period of sixty days, the adjudicating officer shall record his reasons in writing for not disposing of the application within that period. (3) While holding an inquiry the adjudicating officer shall have power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document which in the opinion of the adjudicating officer, may be useful for or relevant to the subject matter of the inquiry and if, on such inquiry, he is satisfied that the person has failed to comply with the provisions of any of the Sections specified in Sub-section (1), he may direct to pay such compensation or interest, as the case any be, as he thinks fit in accordance with the provisions of any of those sections. 79. Bar of jurisdiction No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter....
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....her Acts unless there is a clear bar. The issue in this case was whether in the face of Section 156 of the Tamil Nadu Cooperative Societies Act, 1983 the concerned persons could avail remedies under the CP Act. Interpreting Section 3 of the CP Act, it was held that the remedy provided under the CP Act would be in addition to the remedies provided under the other Acts. ii) In National Seeds Corporation Limited v. M. Madhusudhan Reddy and Anr. (2012) 2 SCC 506, it was observed: "57. It can thus be said that in the context of farmers/growers and other consumers of seeds, the Seeds Act is a special legislation insofar as the provisions contained therein ensure that those engaged in agriculture and horticulture get quality seeds and any person who violates the provisions of the Act and/or the Rules is brought before the law and punished. However, there is 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 th....
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....ration (2007) 4 SCC 579 and National Seeds Corporation Ltd. v. M. Madhusudhan Reddy (2012) 2 SCC 506. 15. In the last mentioned judgment, National Seeds Corporation Case (2012) 2 SCC 506, this Court referred to the earlier judgments in Fair Air Engineers (P) Ltd. v. N.K. Modi (1996) 6 SCC 385, Thirumurugan Coop. Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305, Skypak Couriers Ltd. v. Tata Chemicals Ltd. (2000) 5 SCC 294 and Trans Mediterranean Airways v. Universal Exports (2011) 10 SCC 316 and held that the remedy available under the Act is in addition to the remedies available under other statutes and the availability of alternative remedies is not a bar to the entertaining of a complaint filed under the Act. In this case the statutory remedies available under the Haryana Cooperative Societies Act, 1984 as against those under the CP Act was the matter in issue. 21. 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 compl....
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....sions of the RERA Act bar consideration of the grievance of an allottee by other fora. 25. Section 79 of the RERA Act bars jurisdiction of a Civil Court to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the RERA Act to determine. Section 88 specifies that the provisions of the RERA Act would be in addition to and not in derogation of the provisions of any other law, while in terms of Section 89, the provisions of the RERA Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force. 26. On plain reading of Section 79 of the RERA Act, an allottee described in category (B) stated in paragraph 22 hereinabove, would stand barred from invoking the jurisdiction of a Civil Court. However, as regards the allottees who can be called "consumers" within the meaning of the CP Act, two questions would arise; a) whether the bar specified Under Section 79 of the RERA Act would apply to proceedings initiated under the provisions of the CP Act; and b) whether there is anything inconsistent in the provisions of the CP Act with that of the RER....
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....the Appellate Tribunal (Section 46), such authorities alone must be held entitled to decide all issues concerning the Project registered under the RERA Act. It was submitted that if the allottees were to be permitted to initiate parallel proceedings before the fora under the CP Act, the financial drain on the promoter would render completion of construction an impossibility and, therefore, the RERA Act in general and Section 89 in particular be construed in such a way that all the issues pertaining to the concerned project be decided only by the authorities under the RERA Act. Even with acceptance of such interpretation, the allottees would still be entitled to approach the authorities Under Section 18 of the RERA Act. 30. It is true that some special authorities are created under the RERA Act for the Regulation and promotion of the real estate sector and the issues concerning a registered project are specifically entrusted to functionaries under the RERA Act. But for the present purposes, we must go by the purport of Section 18 of the RERA Act. Since it gives a right "without prejudice to any other remedy available', in effect, such other remedy is acknowledged and saved subj....