# M/S. IMPERIA STRUCTURES LTD v. ANIL PATNI AND ANOTHER

- **Citation:** [2020] 12 S.C.R. 373
- **Court:** Supreme Court of India
- **Decided:** 2020-11-02
- **Case number:** Civil Appeal Nos. 3581-3590 of 2020
- **Bench:** Uday Umesh Lalit, Vineet Saran
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-s-imperia-structures-ltd-v-anil-patni-and-another-34212
- **Pages:** 38

## Headnote

Consumer Protection Act, 1986 - s.23 - Real Estate
(Regulation and Development) Act, 2016 (RERA Act) - ss.18,79
and 88 - Applicability and effect of the RERA Act - A housing
scheme was launched by appellant in 2011 - The respondentscomplainants had booked apartments - The appellant had executed
Builder Buyer Agreement dated 30.11.2013 with each of the
respondents - On 01.05.2016, the Real Estate (Regulation and
Development) Act, 2016 came into force - A considerable amount
was paid by the respondents for their booked apartments - However,
even after four years there were no signs of the project getting
completed - In 2017, the respondents filed consumer cases before
the National Consumer Disputes Redressal Commission - The
Commission concluded that the appellant was deficient in rendering
service and all the complaints were allowed by granting relief of
refund of the amounts deposited by each of the complainants with
simple interest @ 9% p.a. from the respective dates of deposits with
Rs. 50,000/- towards costs - Aggreived, the appellant filed appeal
before the Supreme Court - The appellant contended that the
respondents were not 'consumers' within the meaning of the
Consumer Protection Act - Further, once the RERA Act, came into
force all questions concerning the project including issues relating
to construction and competition thereof, would be under the
exclusive control and jurisdiction of the authorities under the RERA
Act - The Commission, therefore, ought not to have entertained the
consumer cases - Held: The Commission had concluded that; (i) all
the complainants were 'consumers' within the meaning of the Act
and that; (ii) there was delay on part of the appellant in completing
the construction within time - The conclusions drawn by the National
Commission were absolutely correct and do not call for any
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interference - As far as applicability and effect of the RERA Act is
concerned, s.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 - It is settled law
that the proceedings before the National Commission are although
judicial proceedings, but at the same time it is not a Civil Court
within the meaning of the provisions of the CPC - Thus, s.79 of the
RERA Act does not in any way bar the Commission or forum under
the provisions of the Consumer Protection Act to entertain any
complaint - Further, s.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 - Also, s.18 itself specifies that the remedy under
the 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 Consumer Protection Act or file an application
under the RERA Act - Therefore, all the respondents are entitled to
execute the order passed by the Commission in their favour.
Dismissing the appeals, the Court
HELD : 1. It has consistently been held by this Court that
the remedies available under the provisions of the Consumer
Protection Act, 1986 are additional remedies over and above the
other remedies including those made available under any special
statutes; and that the availability of an alternate remedy is no bar
in entertaining a complaint under the CP Act. [Para 21][405-D-E]
2. Section 79 of the Real Estate (Regulation and
Development) Act, 2016 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 i

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M/S. IMPERIA STRUCTURES LTD.
v.
ANIL PATNI AND ANOTHER
(Civil Appeal Nos. 3581-3590 of 2020)
NOVEMBER 02, 2020
[UDAY UMESH LALIT AND VINEET SARAN, JJ.]
Consumer Protection Act, 1986 - s.23 - Real Estate
(Regulation and Development) Act, 2016 (RERA Act) - ss.18,79
and 88 - Applicability and effect of the RERA Act - A housing
scheme was launched by appellant in 2011 - The respondentscomplainants had booked apartments - The appellant had executed
Builder Buyer Agreement dated 30.11.2013 with each of the
respondents - On 01.05.2016, the Real Estate (Regulation and
Development) Act, 2016 came into force - A considerable amount
was paid by the respondents for their booked apartments - However,
even after four years there were no signs of the project getting
completed - In 2017, the respondents filed consumer cases before
the National Consumer Disputes Redressal Commission - The
Commission concluded that the appellant was deficient in rendering
service and all the complaints were allowed by granting relief of
refund of the amounts deposited by each of the complainants with
simple interest @ 9% p.a. from the respective dates of deposits with
Rs. 50,000/- towards costs - Aggreived, the appellant filed appeal
before the Supreme Court - The appellant contended that the
respondents were not 'consumers' within the meaning of the
Consumer Protection Act - Further, once the RERA Act, came into
force all questions concerning the project including issues relating
to construction and competition thereof, would be under the
exclusive control and jurisdiction of the authorities under the RERA
Act - The Commission, therefore, ought not to have entertained the
consumer cases - Held: The Commission had concluded that; (i) all
the complainants were 'consumers' within the meaning of the Act
and that; (ii) there was delay on part of the appellant in completing
the construction within time - The conclusions drawn by the National
Commission were absolutely correct and do not call for any
 [2020] 12 S.C.R. 373
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interference - As far as applicability and effect of the RERA Act is
concerned, s.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 - It is settled law
that the proceedings before the National Commission are although
judicial proceedings, but at the same time it is not a Civil Court
within the meaning of the provisions of the CPC - Thus, s.79 of the
RERA Act does not in any way bar the Commission or forum under
the provisions of the Consumer Protection Act to entertain any
complaint - Further, s.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 - Also, s.18 itself specifies that the remedy under
the 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 Consumer Protection Act or file an application
under the RERA Act - Therefore, all the respondents are entitled to
execute the order passed by the Commission in their favour.
Dismissing the appeals, the Court
HELD : 1. It has consistently been held by this Court that
the remedies available under the provisions of the Consumer
Protection Act, 1986 are additional remedies over and above the
other remedies including those made available under any special
statutes; and that the availability of an alternate remedy is no bar
in entertaining a complaint under the CP Act. [Para 21][405-D-E]
2. Section 79 of the Real Estate (Regulation and
Development) Act, 2016 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. [Para 25][406-F-H]
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3. On plain reading of Section 79 of the RERA Act, an
allottee described in category (B), who does not fulfil the
requirements of being a 'consumer', 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 RERA Act. [Para 26][407-A-B]
4. On the strength of the law so declared in Malay Kumar
Ganguli vs. Sukumar Mukherjee, Section 79 of the RERA Act does
not in any way bar the Commission or Forum under the provisions
of the CP Act to entertain any complaint. [Para 27][407-C-E]
5. 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 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. [Para 28][407-E-H;
408-A-B]
M/S. IMPERIA STRUCTURES LTD. v. ANIL PATNI AND
ANOTHER
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6. This Court may now consider the effect of the 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, issued by the
Haryana Authority regarding registration certificate, also entitles
an allottee 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 the terms and condition for
sale and makes promoter liable to return the amount with interest.
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. [Para
33][409-C-F]
Secretary, Thirumurugan Cooperative Agricultural
Credit Society vs. M. Lalitha (dead) through LRs. and
others (2004) 1 SCC 305 : [2003] 6 Suppl. SCR 659 ;
National Seeds Corporation Limited vs. M.
Madhusudhan Reddy and another (2012) 2 SCC 506 :
[2012] 2 SCR 1065 ; Virender Jain vs. Alaknanda
Cooperative Group Housing Society Limited and others
(2013) 9 SCC 383 : [2013] 2 SCR 1058 ; Malay
Kumar Ganguli vs. Dr. Sukumar Mukherjee (2009) 9
SCC 221 : [2009] 13 SCR 1 ; Pioneer Urban Land
and Infrastructure Limited and another vs. Union of
India and another (2019) 8 SCC 416 : [2019] 10
SCR 381 - relied on.
Emaar MGF Ltd and anr. vs. Aftab Singh (2019) 12
SCC 751 : [2018] 14 SCR 791 - referred to.
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Case Law Reference
[2003] 6 Suppl. SCR 659
relied on
Para 20 (i)
[2012] 2 SCR 1065
relied on
Para 20 (ii)
[2013] 2 SCR 1058
relied on
Para 20 iii)
[2018] 14 SCR 791
referred to
Para 22
[2009] 13 SCR 1
relied on
Para 27
[2019] 10 SCR 381
relied on
Para 31
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 35813590 of 2020.
From the Judgment and Order dated 12.09.2018 of the National
Consumer Disputes Redressal Commission, New Delhi in Consumer
Case No. 3011, 3012, 3013, 3014, 3015, 3016, 3017, 3018, 3019 & 3020
of 2017.
With
Civil Appeal No. 3591 of 2020 (@ Civil Appeal Diary No. 9793 of
2019)
Vikas Singh, Sr. Adv. Simranjeet Singh, Gautam Talukdar, Ms.
Neha Gupta, Ms. Rhea Dube, Aadhar Nautiyal, Rohit Sharma, Ram
Mohan, Gautam Talukdar, Ms. Priyanjali Singh, Rahul Rathore, Karunesh
Kumar Shukla, Advs. for the appearing parties.
Respondent-in-person
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. These appeals* under Section 23 of the Consumer Protection
Act, 1986 (hereinafter referred to as "the CP Act") are directed against
the common judgement and order dated 12.09.2018 passed by the
National Consumer Disputes Redressal Commission, New Delhi
(hereinafter referred to as "the Commission") in Consumer Case
Nos.3011, 3012, 3013, 3014, 3015, 3016, 3017, 3018, 3019 and 3020 of
2017. The relevant facts leading to the filing of the aforesaid Consumer
Cases are almost identical and for the present purposes the facts leading
*Arising out of Civil Appeal Diary No. 9796 of 2019
M/S. IMPERIA STRUCTURES LTD. v. ANIL PATNI AND
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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* 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 facing" and for
"higher floor" as well as charges for reserve parking, club membership
and development were added; the aggregate price being Rs.76,43,000/.
4. Clauses 11.1 and 11.2 of the Agreement dated 30.11.2013
entered into by the Respondents dealt with "delay due to reasons beyond
the control of the Developer/Company" and "failure to deliver possession
due to Government Rules, Orders, Notifications, etc." respectively.
Clause 11.4 of the Agreement was:-
"11.4 FAILURE TO DELIVER POSSESSION: REMEDY TO
THE COMPANY
The intending Allottee(s) agrees that in consequence of the
Developer/Company abandoning the Scheme or becoming unable
to give possession within three years from the date of execution
of this Agreement to such extended periods as permitted under
this Agreement, the Developer/Company shall be entitled to
terminate this Agreement whereupon the Developer/Company's
liability shall be limited to the refund of the amounts paid by the
Intending Allottee(s) with simple interest @ 9% per annum for
the period such amounts we relying with the Developer/Company
*Arising out of Civil Appeal Diary No.9793 of 2019
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and to pay no other compensation whatsoever. However, the
Developer/Company may, at its sole option and discretion, decide
not to terminate this Agreement in which event the Developer/
Company agrees to pay only to the original Intending Allottee(s)
and not to anyone else and only in cases other than those provided
in Clauses 11.1, 11.2, 11.3 and Clause 41 and subject to the
Intending Allottee(s) not being in default under any term of this
Agreement, compensation @ Rs.5/- per sq. ft. equal to Rs.53.8/
- Per Sq. Meter of the super area of the said Apartment per
month for the period of such delay beyond three & half years or
such extended periods as permitted under this Agreement. The
adjustment of such compensation shall be done only at the time of
settling the final accounts for handing over/conveyancing the said
Apartment to the intending Allottee(s) first named in this Agreement
and not earlier."
Clause 41 of the Agreement was as under:-
"41. FORCE MAJURE
"The Developer/Company shall not be held responsible or liable
for not performing any of its obligations or undertakings provided
for in this Agreement if such performance is prevented, delayed
or hindered by an act of God, fire, flood, explosion, war, riot, terrorist
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/
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allotees/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 constructed structure. Despite
a delay of many months, the construction of the apartment has
not been completed. It can hence be seen that the O.P is deficient
in renderings services and after extracting most of the money
from the buyers/allotees/purchases have deliberately stopped the
construction of the houses.
12. That it could be seen that the construction of the residential
unit 'THE ESFERA' in which the buyers/allotees/purchasers flats
were booked many months back, with a promise by the O.P. to
deliver the same within 42 months were never completed for the
reasons best known to the O.P., which clearly shows the ulterior
motive of the O.P. to extract money from the innocent buyers
fraudulently and also demonstrates the unfair trade practices and
restrictive trade practices under the ambit of consumer protection
act 1986.
16. That as per the clause 11.4 of the Buyer's Agreement, it was
agreed by the O.P. that in case of any delay, the O.P. shall pay to
the buyers/allotees/purchasers, a compensation at the rate of
Rs.5/- per sq. ft. per month for the period of the delay. It could be
seen here that the O.P has incorporated the Clause 11.4 in the
one sided buyer's agreement and has offered to pay a meagre
sum of Rs.5/- per square feet for every month of delay if we
calculate the amount in terms of financial charges, it comes to
approximate @ 1.4% per annum rate of interest. Even these
charges are to be paid after 42 months of period that is taken by
the O.P. to construct the houses as per the buyer's agreement.
This shows that the O.P. has found a cheap source of funding the
commercial projects from the hard earned savings and borrowed
money of innocent residential apartments/house buyers like the
present complainants. The O.P is raising funds at the interest
rate of mere 1.4% per annum and that too with initial 42 months
of interest free duration.
30. That the value of goods/services along with compensation
claimed in the present complaint is above one crore rupees hence
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the complainants are entitled to invoke the pecuniary jurisdiction
of this Hon'ble Commission. The present complaint has been
assessed for a sum of Rs.1,16,94,579/- and requisite fee i.e.
Rs.5000/- by way of a demand draft payable to "THE
REGISTRAR, NCDRC New Delhi" is being paid with this
complaint.
32. In view of the above, it is, therefore, most respectfully prayed
that this Hon'ble Commission may kindly be pleaed 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-37C, Village Gharoli Khurd and Basai, Gurugram, Haryana with
regard to License No.64 of 2011 dated 16.07.2011 issued by the
Director, town and Country Planning Department, Haryana, has
been examined vis-à-vis the provisions of the Real Estate
(Regulation and Development) Act, 2016 and HRERA Rules, 2017
and accordingly a registration certificate is herewith issued with
following terms and conditions:-
M/S. IMPERIA STRUCTURES LTD. v. ANIL PATNI AND
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(i)
The Promoter shall comply with the provisions of the Act
and the rules and regulations made there under;
(ii)
The Promoter shall deposit seventy percent of the amount
to be realized from the allottees by the Promoter in a separate
account to be maintained in a schedule bank to meet
exclusively the cost of land and construction purpose as per
provision of Section 4 (2) (L) (D);
(iii)
The registration shall be valid for a period commencing from
17.11.2017 to 31.12.2020;
(iv)
The Promoter shall offer to execute and register a
conveyance deed in favour of the allotees or the association
of the allottees, as the case may be, of the apartment, plot or
building as the case may be, or on the common areas as per
provision of section 17 of the Act;
(v)
The Promoter shall take all the pending approvals from
various competent authorities on time;
(vi)
The Promoter shall pay all outstanding payment i.e. land
cost, construction cost, ground rent, municipal or other local
taxes, charges for water or electricity, maintenance charges,
including mortgage loan and interest on mortgages or other
encumbrances and such other liabilities payable to competent
authorities, bank and financial institutions which are related
to the project until he transfers the physical possession of
the real estate project to the allottees or the associations of
allottees, as the case may be;
(vii) The Promoter shall be responsible for providing and
maintaining the essential services, on reasonable charges,
till the taking over of the maintenance of the project by the
Municipal Corporation, Gurugram or any other local authority
Association of the Allottees, as the case may be;
(viii) The Promoter shall not accept a sum more than ten percent
of the cost of the apartment, plot or building as the case may
be, as an advance payment or an application fee, from a
person without first entering into a written agreement for
sale with such person and register the said agreement for
sale, under any law for the time being in force;
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(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,
allotee 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) Rules, 2017 at the time of booking from the
prospective allottees.
(xii) The Promoter shall, upon receiving his Login Id and password
under clause(a) of sub-section (1) or under sub-section 92)
of section 5, as the case may be, create his web page on the
website of the Authority and enter all details of the proposed
project as provided under sub-section (2) of section 4,
including the followings:-
a)
Details of the registration granted by the authority;
b)
Quarterly up-to-date list of number and type of
apartments for plots, as the case may be, booked;
c)
Quarterly up-to-date the list of number of garages
covered parking lot booked;
M/S. IMPERIA STRUCTURES LTD. v. ANIL PATNI AND
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d)
Quarterly up-to-date the list of approvals taken and
the approvals which are pending subsequent to
commencement certificate;
e)
quarterly up-to-date status of the project; and
f)
such other information and documents as may be
specified by the regulations made by the authority.
(xiii) The Promoter shall be responsible to make available to the
allottees, the following information at the time of the booking
and issue of allotment letter:-
a)
Sanctioned plans, layout, along with specifications,
approved by the competent authority and other
information as prescribed in Rule 14 of 2017 framed
under the provision of the Real Estate (Regulation
and Development) Act 2016 and the same shall be
displayed at the site or such other place as may be
specified by the regulations made by the Authority."
8. In its response dated 18.01.2018 to the aforestated Consumer
Case No.3011 of 2017, the Appellant challenged the jurisdiction of the
Commission inter alia, on the ground that the apartment having been
booked for commercial purposes, the Respondents would not come within
the definition of "the consumer" under Section 2(d) of the CP Act. No
reference was however made to the fact that the Project had been
registered under the RERA Act. It was submitted:-
"8. That the contents and averments made in para 8 are wrong
and denied. It is denied that the date of possession of the unit
was 30th May, 2017. It is submitted that the respondents 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 ForceMajeure 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.
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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 judgement and order dated 12.09.2018. It was
observed:-
"10. It is pertinent to note that the Developer has not filed any
evidence to support his contention that the delay occurred due to
force majeure events. In fact demonetization, non-availability of
contractual labour, delay in notifying approvals cannot be construed
to be force majeure events from any angle.
11. Learned Counsel for the Developer vehemently argued that
the Complainants were offered alternative accommodation vide
letter dated 03.04.2017 which was not accepted by them. The
said letter is reproduced as hereunder:-
"Be that as it may, in view of your allegations of delay which
we deny, we hereby offer that till we complete construction of
your subject matter flat we shall arrange alternative
accommodation/flat for you in Group Housing Colony named
"Takshila Heights" situated at Sector-37C, Gurgaon on lease/
rent with immediate effect. We will bear the rent of alternative
accommodation/flat at "Takshila Heights". However, you shall
have to pay the common area maintenance charges and other
user based charges like electricity, etc., which you would have
done for your flat in "Esfera" as well." (Emphasis supplied).
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12. It is significant to mention that in the afore-noted letter there
is an admission by the Developer that the construction is still not
completed. Additionally, even the specific date of delivery of
possession has not been mentioned anywhere either in the Written
Version or in the Affidavit or even in the letter dated 03.04.2017
which the Counsel is relying upon."
Concluding that the Appellant was deficient in rendering service,
the Commission granted relief to the Respondents in following terms:-
"14. Keeping in view the admitted incomplete construction, the
fact that some of the Complainants have also taken bank loans
and are paying EMIs and considering the stipulation provided in
Clause 11.4, this Complaint is partly allowed directing the
Developer to refund the amounts deposited with simple interest
@ 9% p.a. from the respective dates of deposits till the date of
realization together with costs of Rs.50,000/- to be paid to each of
the Complainants. The directions are to be complied withing 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 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:
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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
the Real Estate (Regulation and Development) Act, 2016.
ii. The arrears of interest accrued so far shall be paid to the
complainant within 90 days from the date of this order and thereafter
monthly payment of interest till handing over the possession shall
be paid before 10th of subsequent month."
13. The appeal memo also did not make any reference to the fact
that the Project had been registered under the RERA Act. In the leading
appeal, following assertions were made in the list of dates and events:-
"2011-2017
The Appellant was unable to hand over the
possession to the Respondents within the stipulate
time as stipulated in Clause 10.1 due to reasons
beyond control of the Appellant viz., due to severe
shortage of contractual labourers and delay caused
in obtaining statutory requisite permissions for
carrying on the construction of said flats, failed to
deliver possession of the subject flats to the
Respondents within the prescribed time limit.
One of the grounds raised in the appeal memo was as under:-
"C. Because the Hon'ble Commission failed to appreciate
that the Policy of Demonetization introduced by the Government
of India constituted as an event of Force Majeure since as a
consequence of the said event, numerous persons including
the Appellant suffered shortage of cash which resulted in delay
in delivering possession to the Respondent. It is humbly
submitted that the shortage of cash ensuing as a result of the
Demonitization policy resulted in the stopping of work since
the process of construction requires many payments to be made
in cash on a day to day basis, for example, wages paid to daily
wage workers, payments made against delivery of construction
materials, etc."
14. After issuance of notice on 05.04.2019, it was submitted by
the Respondents that the Appellant had partially refunded the amounts
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in terms of the directions of the Commission. Following details indicate
that in four out of ten cases, partial refund was made.
"
"
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.
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b)
The Appellant had offered alternative
accommodation to all the allottees. But the offer
was rejected by all the Complainants which was
indicative that the apartments were booked for
investment purposes.
c)
 The Complainants were not "Consumers"
within the meaning of the CP Act as the apartments
were booked merely for profit motive.
d)
Once the RERA Act came into force, all
questions concerning the Project including issues
relating to construction and completion thereof, would
be under the exclusive control and jurisdiction of
the authorities under the RERA Act. The
Commission, therefore, ought not to have
entertained the Consumer Cases.
e)
The Registration Certificate dated 17.11.2017
being valid upto 31.12.2020, the Appellant could
not be said to have delayed the construction and
consequently, there could be no finding that there
was deficiency on part of the Appellant.
f)
The order passed in the case of Himanshu Giri
had directed payment of interest @ 10.75% per
annum without issuing any direction for refund of
money. The approach so adopted would be
conducive to completion of construction and at the
same time would balance the interest of the allottees.
g)
Considering the provisions of the RERA Act
and the fact that the registration being valid upto
31.12.2020, the orders passed by the Commission
be set aside and instead the Complainants be granted
interest @ 10.75% p.a. on the amounts deposited;
whereby the Project would be completed without
putting the Appellant under any financial strain and
at the same time the relief in the nature of interest
on investment would also be accruable to the
allottees.
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16. Ms. Priyanjali Singh, learned Advocate for the Respondents
as well as for some of the other Complainants submitted:-
a)
All the Complainants had purchased only one
residential apartment each for self-use. They had
taken home loans, except the Complainant in
Consumer Case 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 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
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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
'Consumers' within the meaning of the Act and that; (ii) there was
delay on part of the Appellant in completing the construction within time.
The stand taken by the Appellant at various stages, itself acknowledged
that there was delay but the Appellant tried to rely on certain events as
mentioned in ground (c) quoted hereinabove. In our view, the conclusions
drawn by the National Commission in relation to these issues are
absolutely correct and do not call for any interference.
19. Before we deal with the issues about the applicability and
effect of the RERA Act as well as the effect of registration of the
Project under the RERA Act, the relevant provisions of the CP Act and
the RERA Act may be extracted:-
A]
The Consumer Protection Act, 1986
The CP Act was enacted, inter alia, "to provide for better
protection of the interest of the consumer"; to promote and protect
the rights of consumers such as "the rights to seek redressal against
unfair trade practices or unscrupulous exploitation of consumers".
Sections 3, 12(4) and 24 were to the following effect: -
"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.
12. Manner in which complaint shall be made. ....
(1)
... ... ...
(2)
... ... ...
(3)
... ... ...
(4) Where a complaint is allowed to be proceeded with under
sub-section (3), the District Forum may proceed with the complaint
in the manner provided under this Act:
Provided that where a complaint has been admitted by the District
Forum, it shall not be transferred to any other court or tribunal or
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any authority set up by or under any other law for the time being
in force.
...
...
...
24. Finality 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.