TaxTMI 
TaxTMI 
2021 (9) TMI 1154
X X X X Extracts X X X X
X X X X Extracts X X X X
....ivil 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 Realtors Pvt. Ltd. and Respondent No. 4 - Blue Planet Infra Developers and Madeira Conbuild Pvt. Ltd. for developing a group housing colony on a vast tract of land admeasuring about 37.5125 acres where multiple towers comprising of 1356 apartments were to be constructed. Subsequently, the license for construction was transferred to the Appellant-Developer. 3. On 23.07.2013, the Building Plans of the project were sanctioned by the Directorate of Town and Country Planning, Haryana. Clause 3 of the sanctioned Plan stipulated that NOC/Clearance from the Fire Authority shall be submitted within 90 days from the date of issuance of the sanctioned Building Plans. 4. The Developer opened booking for the apartments in 2013. On 07.08.2013, the Respondent No. 1- Apartment Buyer was allotted a 2 BHK apartment in Tower-C of the project. Similar allotment letters were issued to various other Apartment Buyers in the housing project. 5. On 23/24.10.2013, the Developer applied for issuance of an NOC for the Fire Fighting ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 opted for the Payment Plan annexed herewith as Annexure-IV. The Allottee understands that it shall always remain responsible for making timely payments in accordance with the Payment Plan Annexure-IV. Only in the case of a construction linked Payment Plan, the Company shall be obliged to send demand notices for installments on or about the completion of the respective stages of construction. The demand notices shall be sent by registered post/courier and shall be deemed to have been received by the Allottee within 05 (five) days of dispatch by the Company or receipt thereof, whichever is earlier. 7.2 It shall not be obligatory on the part of the Company to send any reminders for any payments whatsoever. Although the Company shall not be obliged to send demand notices other than for the construction linked Payment Plan, or any reminders whatsoever for payments of the instalment, in the event that any such notices or reminders are sent by the Company to the Allottee, as a ges....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rds 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 shall issue the payment receipts only in favour of the Allottee. Notwithstanding the above, the Allottee is and shall remain solely and absolutely responsible for ensuring and making all the payments due under this Agreement on time. 7.6 The Allottee may obtain finance/loan from any financial institution, bank or any other source, but the Allottee's obligation to purchase the said Apartment pursuant to this Agreement shall not be contingent on the Allottee's ability or competency to obtain such finance. The Allottee would remain bound under this Agreement whether or not it has been able to obtain finance for the purchase of the said Apartment. The Allottee agrees and has fully understood that the Company shall not be under any obligation whatsoever to make any arrangement for the finance/loan facilities to the Allottee from any bank/financial institution. The Allottee shall not omit, ignore, delay, withhold, or fail to make timely payments....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 to the timely payment of all dues and charges including the total Sale Consideration, registration charges, stamp duty and other charges and also subject to the Allottee having complied with all formalities or documentation as prescribed by the Company, the Company proposes to offer the possession of the said Apartment to the Allottee within a period of 42 (Forty Two) months from the date of approval of the Building Plans and/or fulfilment of the preconditions imposed thereunder ("Commitment Period"). The Allottee further agrees and understands that the Company shall additionally be entitled to a period of 180 days ("Grace Period"), after the expiry of the said Commitment Period to allow for unforeseen delays beyond the reasonable control of the Company. 13.4. Subject to Clause 13.3, if the Company fails to offer possession of the said Apartment to the Allottee by the end of the Grace Period, it shall be l....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 Agreement have been fulfilled by the Allottee to the complete satisfaction of the Company. 13.8. The Allottee hereby agrees and affirms that upon taking possession of the said Apartment, the Allottee shall be deemed to have waived all claims against the Company/Confirming Parties, if any, in respect of the area, specifications, quality, construction and/or any item, amenity or provision in the said Apartment or The Corridors Project. (emphasis supplied) Clause 21.3 reads as under: 21. TIME IS OF ESSENCE; TERMINATION AND FORFEITURE OF EARNEST MONEY 21.1 Notwithstanding anything contained in this Agreement, timely performance by the Allottee of all its obligations under this Agreement or exercise of any options wherever and wherever and whenever indicated herein this Agreement including without limitation its obligations to make timely payments of the Sal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 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 supplied) 9. On 27.12.2017, Respondent No. 1 filed a Consumer Complaint being Consumer Case No. 3823 of 2017 before the National Commission, wherein it was inter alia prayed that the Developer be directed to refund the amount of Rs. 1,44,72,364/- paid by the Apartment Buyer alongwith interest @ 20% per annum compounded quarterly till realization, and compensation towards damages on account of harassment, mental agony and litigation charges. The Apartment Buyer inter alia submitted that the Developer had invited applications from the public for booking flats in the housing complex "The Corridors", by misrepresenting that all necessary approvals/pre-clearances with respect to the and constructions had already been obtained from the office of the Director, Town and Country Planning, Haryana, and other civil authorities. The Developer had m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....14. 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 titled as "IREO Grace Realtech Pvt. Ltd. v. Ritu Hasija" being CC No. 190 of 2017 and connected matters, decided on 18.09.2018, held that Clause 44 of that Agreement was wholly unfair and one-sided, which gave only a limited right to the Apartment Buyers to terminate the agreement, and seek refund of the amount paid by them. Clause 21.3 of the Flat Buyers Agreement read in conjunction with the other Clauses of the Agreement would result in a situation where a flat buyer, despite the failure of the builder to offer possession within the time stipulated, would be practically left remediless for 1½ years from the date of default, with no interest or compensation payable to him, even though the money was utilized by the builder. Even the principal amount would be refunded at an uncertain future point, after the builder had sold the apartment allo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nder 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 the view that refund cannot be allowed at this stage. The Developer was directed to handover possession of the apartment by 30.06.2020, as per the Registration Certificate for the project. 14. The present batch of consumer complaints was decided by the National Commission vide judgment and order dated 28.03.2019, which has been impugned herein. The National Commission has allowed the consumer complaints in terms of the earlier order passed in the Subodh Pawar case (supra). The National Commission recorded the statement of the counsel for the complainants that in order to avoid any further litigation, the complainants were restricting their claim for refund of the principal amount paid to the Developer, alongwith compensation @ 10% S.I. p.a. w.e.f. from 10.07.2017, which was awarded by this Court to another allottee in the same project as per....
X X X X Extracts X X X X
X X X X Extracts X X X X
....18 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 of the pre-conditions under the Building Plan, and must be given effect to by any adjudicatory body. (c) Under Sections 15(2) and (3) of the Haryana Fire Service Act, 2009, it is the duty of the Authority to grant a provisional NOC within a period of 60 days from the date of submission of the application. The delay/failure of the Authority to grant a provisional NOC cannot be attributed to the Developer. (d) The Apartment Buyers was not required to pay the entire consideration amount at the commencement of the agreement, in a lump sum amount, since the consideration was linked to the construction plan, and was payable in instalments at various stages of the construction. The Developer had not taken any instalment prior to 27.11.2014, when the Fire Safe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y 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 of the conflicting views taken by the two Fora which exercise original jurisdiction, it is the order of RERA which ought to be upheld. Particularly, since RERA is a specialized fact-finding authority with respect to real estate projects, it is the special law which must prevail over the general law. RERA has been established under the Real Estate (Regulation & Development) Act, 2016 ("RERA Act"), for Regulation and promotion of the real estate sector. (j) It was submitted that by 21.07.2017, the construction of Phase I of the project had been completed, which comprised of Towers A6 -A10, B1 - B4, and C3 - C7, for which the Occupation Certificate was issued on 31.05.2019, and an offer of possession was made to the apartment....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 Building Plan Approval nor Section 15 of the Haryana Safety Act, 2009 places any restriction on the commencement of construction, which would be evident from the fact that the Developer had started the construction before the grant of the Fire NOC. (e) The sanctioned Building Plans stipulated that the NOC for Fire Safety (Provisional) was required to be obtained within a period of 90 days from the date of approval of the Building Plans, which expired on 21.10.2013. The Developer applied for the Provisional Fire Approval on 24.10.2013 after the expiry of the mandatory 90 days' period got over. The application filed was deficient and casual....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ated 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 Fighting Scheme and issue of no objection certificate.--(1) Any person proposing to construct a building to be used for any purpose other than residential purpose or a building proposed to be used for residential purpose of more than 15 meters in height, such as group housing, multi-storeyed flats, walk-up apartments, etc. before the commencement of the construction, shall apply for the approval of Fire Fighting Scheme conforming to National Building Code of India, the Disaster Management Act, 2005 (53 of 2005), the Factories Act, 1948 (Act 63 of 1948) and the Punjab Factory Rules, 1952, and issue of no objection certifica....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 unless he is satisfied that adequate fire fighting measures have been installed by you and suitable external fire fighting infrastructure has been created at Gurgaon, by Municipal Corporation, Gurgaon. A clearance to this effect shall be obtained from the Commissioner, Municipal Corporation, Gurgaon before grant of occupation certificate by the Director General. 18.5. On receipt of the Fire Plans, the Commissioner, Municipal Corporation, Gurgaon, after satisfying himself with the entire fire protection measures as in conformity with the National Building Code, 2005 ("NBC"....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eveloper 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 cured. The Developer was granted a further period of 15 days' to cure the defects, failing which, its application would be deemed to be rejected. The Developer submitted revised drawings as per the NBC Fire Scheme alongwith its letter dated 18.08.2014. This letter was received in the office of the Municipal Corporation on 13.10.2014, as per endorsement on the said letter. 18.11. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mited 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 Developer. Clause 21.3 provides that upon such termination, the Appellant Company shall be under no obligation, except to refund the amounts already paid by the allottee, 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. The principal amount after the aforesaid deductions are made, would be refunded at an uncertain future date i.e. after the Developer had sold the apartment allott....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing 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 to such things which otherwise would have been beyond its natural import. Manner of construing an inclusive Clause and its widening effect has been explained in Dilworth v. Commissioner of Stamps [1899 AC 99 : 15 TLR 61] as under: 'include' is very generally used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute, and when it is so used these words or phrases must be construe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely: .......... (emphasis supplied) The said definition is an inclusive one, as held by this Court in Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan (2019) 5 SCC 725, where....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. Section 14 of the 1986 Act empowers the Consumer Fora to redress the deficiency of service by issuing directions to the Builder, and compensate the consumer for the loss or injury caused by the opposite party, or discontinue the unfair or restrictive trade practices. 19.7. We are of the view that the incorporation of such one-sided and unreasonable clauses in the Apartment Buyer's....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 provisions of any other law for the time being in force. In Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (dead) through LRs and Ors. (2004) 1 SCC 305 this Court held that: 11. From the Statement of Objects and Reasons and the scheme of the 1986 Act, it is apparent that the mai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....les 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 the growers had applied for arbitration then in terms of Section 8 of the Arbitration and Conciliation Act the dispute arising out of the arbitration Clause had to be 23 referred to an appropriate arbitrator and the District Consumer Forums were not entitled to entertain their ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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 establishment of the Real Estate Regulatory Authority (the Authority) for Regulation and promotion of real estate sector and to ensure sale of plot, apartment or building, as the case may be, in an efficient and transparent manner and to protect the interest ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hall 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 Financial Corporation v. M/s. GAR Re-rolling Corporation (1994) 2 SCC 647, in the following words: 15. The Doctrine of Election clearly suggests that when two remedies are available for the same relief....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. Deshpande v. Maruti Balaram Haibatti (1998) 6 SCC 507, it was held that: 8. The doctrine of election is based on the Rule of estoppel -- the principle that one cannot approbate and reprobate inher....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 a further reiteration of the doctrine of election incorporated in the scheme for claiming compensation. The principle "where, either of the two alternative Tribunals are....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ct, 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 right or an option to the complainant concerned but does not statutorily force him to withdraw such complaint nor do the provisions of the RERA Act creat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 Rs. 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 manner by way of 4 equal instalments, wherein 1st instalment starting from 16.09.2019. Copy of the Cheques by the Cor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 @ Rs. 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 Rs. 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 construction of the project. At the same time, we cannot acce....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Ordered accordingly. ============= Document 1 INSTALLMENT PAYMENT PLAN S. No. LINKED STAGES % 1 AT THE TIME OF BOOKING 10% OF BASIC TOTAL 1727851.60 2 3 4 5 6 WITHIN 45 DAYS OF BOOKING COMMENCEMENT OF EXCAVATION CASTING OF LOWER BASEMENT ROOF SLAB CASTING OF 2ND FLOOR ROOF SLAB CASTING OF 5TH FLOOR ROOF SLAB 10% OF BASIC 1727851.60 10% OF BASIC+50% 2029223.85 OF DEVELOPMENT CHARGES 10% OF BASIC+50% OF DEVELOPMENT CHARGES 2029223.85 10% OF BASIC 1727851.60 10% OF BASIC 1727851.60 7 CASTING OF 8' FLOOR ROOF SLAB 10% OF BASIC+50% 1852851.60 OF CLUB MEMBERSHIP 8 CASTING OF 11 10% OF BASIC 1727851.60 FLOOR ROOF SLAB 9 CASTING OF TOP 10% OF BASIC 1727851.60 10 988925.80 11 FLOOR ROOF SLAB ON COMPLETION OF STONE/TILE FLOORING IN APARTMENT ON OFFER OF POSSESSION TOTAL 50% OF BASIC+50% OF CLUB MEMBERSHIP 50% OF BASIC+100% OF IFMS+100% OF IBRF 1139646.80 18406981.50 Document 27.5 x 100 x 12 = 10,350 0.9% to 1% p.a. Document 3 CHART A APARTMENTS WHERE O.C.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....,99,20,649/- Gupta 20.01.2017 No O.C. even on date. The 4 demand for casting of Lower Basement Slab was raised on 10.01.2017. No O.C. even on date. 5. C.A. 8785-8794/2019 Unit CD-A2-11- 1102 Rs. 62,05,441 as on 24.01.2017 IREO Grace Realtech Tower A2 Private Ltd. v. Monica Khuller Rs. 2,01,86,365/- The 4 demand for casting of Lower Basement Slab was raised on 10.01.2017. No O.C. even on date. 6. C.A. 8785-8794/2019 IREO Grace Realtech Private Ltd. v. Neelam Mittal Unit CD-A1-08-802 Rs. 61,22,738/- Tower A1 Rs. 1,99,20,649/- The 4 demand for casting of Lower Basement Slab was raised on 10.01.2017. No O.C. even on date. 7. C.A. 8785-8794/2019 On 24.01.2017 IREO Grace Realtech Private Ltd. v. Rs. 2,02,71,389/- Shiladitya Gangopadhya Unit CD-A1-04-401 Rs. 62,09,828/- Tower A1 The 4 demand for casting of Lower Basement Slab was raised on 10.01.2017. No O.C. even on date. 8. 9. C.A. 8785-8794/2019 Unit CD-A2-03-302 | Rs. 62,05,440/- IREO Grace Realtech Private Ltd. v. Kartik Ahuja Tower A2 On 23.02.2017 Rs. 2,01,86,365/....