TaxTMI 
TaxTMI 
2020 (11) TMI 189
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....he present purposes the facts leading to the 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 prefe....
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....rist acts, sabotage, inability to procure or general shortage of energy, labour, 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 comp....
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....TRAR, NCDRC New Delhi" is being paid with this complaint. Value of goods and services Rs. 76,43,000/- Compensation 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. M....
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....n agreement for sale with such person and register the said agreement for sale, under any law for the time being in force; (ix) The Promoter shall adhere all the terms and conditions of this registration and license, 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....
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....ndents had clearly mentioned the Schedule for possession of the said apartment/Unit was based upon its present plans and estimates and subject to all just exceptions, contemplates to complete the construction of the said building/said apartment within a period of three and half years for the date of execution 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 ....
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....e date of realization together with costs of Rs. 50,000/- to be paid to each of the Complainants. The directions are to be complied within fours weeks from the date of receipt of a copy of the order, failing which, the amount shall attract interest @ 12% p.a. for the said period. 11. Similarly, all other complaints were allowed by the Commission granting relief of refund 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 vest....
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..... Consumer Case Number Amount Directed to be Refunded by Appellant to Complainant(s) (In Rupees) Amount Refunded by Appellant (In Rupees) 1. Consumer Case No. 3011 of 2017 Rs. 63,53,625/- 10,00,000/- 2. Consumer Case No. 3012 of 2017 Rs. 55,35,223/- 8,00,000/- 3. Consumer Case No. 3013 of 2017 Rs. 79,45,547/- NIL 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 f....
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....No. 3020 of 2017 who after his retirement as Group Captain from the Indian Air Force had used all his retirement dues to book the apartment. Therefore, the issue whether the Complainants satisfied the requirements of being "Consumers" under the provisions of the CP Act was rightly decided in favour of the Complainants. b) The question whether the delay occurred due to force majeure events was also rightly answered in favour of the Complainants and no reasonable explanation was available on record to dislodge that 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 le....
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....ty of orders. - Every order of a District Forum, the State Commission or the National Commission shall, if no appeal has been preferred against such order under the provisions of this Act, be final. B] The Real Estate (Regulation and Development) Act, 2016 Sections 2(d), 2(zg), 2(zj) and 2(zk) define expressions "Allottee", "Person, "Project" and "Promoter" respectively. Sections 3, 4, 5, 18, 19, 22, 46, 71, 79, 88 and 89 of the RERA Act are as under: "3. Prior registration of real estate project with Real Estate Regulatory Authority (1) No promoter shall advertise, market, book, sell or offer for sale, or invite 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 ....
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....in the past five years, whether already completed or being developed, as the case may be, including the current status of the said projects, any delay in its completion, details of cases pending, details of type of land and payments pending; (c) an authenticated copy of the approvals and commencement certificate from the competent authority obtained in accordance with the laws as may be applicable for the real estate project mentioned in the application, and where the project is proposed to be developed in phases, an authenticated copy of the approvals and commencement certificate from the competent authority for each of such phases; (d) the sanctioned plan, layout plan and specifications of the proposed project 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 ....
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....nts duly certified and signed by such chartered accountant and it shall be verified during the audit that the amounts collected for a particular project have been utilised for the project and the withdrawal has been in compliance with the proportion to the percentage of completion of the project. Explanation.- For the purpose of this clause, the term "schedule bank" means a bank included in the Second Scheduled to the Reserve Bank of India Act, 1934; (E) that he shall take all the pending approvals on time, from the competent authorities; (F) that he has furnished such other documents as may be prescribed by the Rules or Regulations made under this Act; and (m) such other information and documents as may be prescribed. (3) The Authority shall operationalise a web based online system for submitting applications 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 Regul....
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...., 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 this Act or the Rules or Regulations made thereunder or in accordance with the terms and conditions of the agreement for sale, he shall be liable to pay such compensation to the allottees, in the manner as provided under this Act. 19. Rights and duties of allottees (1) The allottee shall be entitled to obtain the information relating to sanctioned plans, layout plans along with the specifications, approved by the competent authority and such 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....
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....allottees, or a federation of the same. (10) Every allottee shall take physical possession of the apartment, plot or building as the case may be, within a period of two months of the occupancy certificate issued for the said apartment, plot or building, as the case may be. (11) Every allottee shall participate towards registration of the conveyance deed of the apartment, plot or building, as the case may be, as provided Under Sub-section (1) of Section 17 of this Act. 22. Qualifications of Chairperson and Members of Authority.- The Chairperson and other Members of the Authority shall be appointed by the appropriate Government on the recommendations of a Selection Committee consisting of the Chief Justice of the High Court or his nominee, the Secretary of the Department dealing with Housing and the Law Secretary, in such manner as may be prescribed, from amongst persons having adequate knowledge of and professional experience of at-least twenty years in case of the Chairperson and fifteen years in the case of the Members in urban development, housing, real estate development, infrastructure, economics, technical experts from relevant fields, plann....
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....ng Housing and the Law Secretary and in such manner as may be prescribed. 71. Power to adjudicate (1) For the purpose of adjudging compensation Under Sections 12, 14, 18 and Section 19, the Authority shall appoint in consultation with the appropriate Government one or more judicial officer as deemed necessary, who is or has been a District Judge to be an adjudicating officer for holding an inquiry in the prescribed manner, after giving any person concerned a reasonable opportunity of being heard: PROVIDED that any person whose complaint in respect of matters covered Under Sections 12, 14, 18 and Section 19 is pending before the Consumer Disputes Redressal Forum or the Consumer Disputes Redressal Commission or the National Consumer Redressal Commission, established Under Section 9 of the Consumer Protection Act, 1986, on or before the commencement of this Act, he may, with the permission of such Forum or Commission, as the case may be, withdraw the complaint pending before it and file an application before the adjudicating officer under this Act. (2) The application for adjudging compensation Under Sub-section (1), shall be dealt with by the adjud....
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....rest of the consumer and for that purpose to provide for better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi-judicial forums are set up at the district, State and national level with wide range of powers vested in them. These quasi-judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to the consumers and to impose penalties for non-compliance with their orders. 12. As per Section 3 of the Act, as already stated above, the provisions of the Act shall be in addition to and not in derogation of any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers better, the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provide....
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....have entertained the complaints filed by the Appellants and directed them to avail the statutory remedies available under the Cooperative Societies Act. Shri Neeraj Jain vehemently argued that the forums constituted under the Act cannot grant relief to the Appellants because the action taken by Respondent 1 was approved by the authorities constituted under the Cooperative Societies Act, who were not impleaded as parties in the complaints. 14. In our view, there is no merit in the submission of the learned Senior Counsel. In the complaints filed by them, the Appellants had primarily challenged the action of Respondent 1 to refund the amounts deposited by them and thereby extinguished their entitlement to get the flats. Therefore, the mere fact that the action taken by Respondent 1 was approved by the Assistant Registrar, Cooperative Societies and higher authorities, cannot deprive the Appellants of their legitimate right to seek remedy under the Act, which is in addition to the other remedies available to them under the Cooperative Societies Act. Law on this issue must be treated as settled by the judgments of this Court in Thirumurugan Coop. Agricultural Credit Society v. ....
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....omoter 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 upto the allottee to proceed either Under Section 18(1) or under proviso to Section 18(1). The case of Himanshu Giri came under the latter category. The RERA Act thus definitely provides a remedy to an allottee who wishes to withdraw from the Project or claim return on his investment. 24. It is, therefore, required to be considered whether the remedy so provided under the RERA Act to....
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.... right or an option to the concerned complainant but does not statutorily force him to withdraw such complaint nor do the provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under the RERA Act. As against that the mandate in Section 12(4) of the CP Act to the contrary is quite significant. Again, insofar as cases where such proceedings under the CP Act are initiated after the provisions of the RERA Act came into force, there is nothing in the RERA Act which bars such initiation. The absence of bar Under Section 79 to the initiation of proceedings before a fora which cannot be called a Civil Court and express saving Under Section 88 of the RERA Act, make the position quite clear. Further, Section 18 itself specifies that the remedy under said Section is "without prejudice to any other remedy available". Thus, the parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act. 29. It was, however, urged that going by the objective or the purpose for which the RERA Act was enacted and considering ....
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....registration of the Project under 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 concerned allottees 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 No. (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. 34. Lastly, it may be noted that the Consumer Protection Act, 2019- Most of the provisions in Chapters I, II, IV, V, VI, VII and VIII including Sections 100 and 107 were brought into force w.e.f. 27.07.2020 vide Notification dated 15.07.2020 ....