Consumer Protection Act, 1986 – ss. 23, 14 – Failure on part of developer to deliver possession of apartment to the consumer within the time stipulated as per the Apartment Buyers Agreement – The consumer, against such failure, approached the National Consumer Disputes Redressal Commission – Commission directed the developer to refund purchase amount interest @ 9% p.a. to the Consumer – Aggrieved developer filed instant appeal – Held: The Commission created under the Consumer Protection Act has the power to direct refund of the purchase amount along with interest under s.14 of the Act and was right in holding that the clauses of the agreement are one-sided and that the Consumer is not bound to accept the possession of the apartment and can seek refund of the amount deposited by her with interest – Further the Apartment Buyer’s Agreement which are found to be one-sided are oppressive, constituting unfair trade practice and such terms of the Agreement cannot be enforced – Order of Commission upheld – Real Estate (Regulation and Development) Act, 2016 – s.18 – Contract – One sided contract.
Consumer Protection Act, 1986 – Real Estate (Regulation and Development) Act, 2016 – Harmonious Construction – The Consumer Protection Act and the Real Estate (Regulation and Development) Act neither exclude nor contradict each other and they must be read harmoniously to subserve their common purpose and hence one Act does not bar the remedy available under the other Act – When Statutes provide more than one judicial fora for effectuating a right or to enforce a duty-obligation, it is a feature of remedial choices offered by the State for an effective access to justice and hence there has to be a harmonious construction of statutes provisioning plurality of remedies – Interpretation of statutes. Consumer Protection Act, 1986: s.14 – Power under, scope – Power to direct refund of the amount and to compensate a consumer for the deficiency in not delivering the apartment as per the terms of Agreement is within the jurisdiction of the Consumer Courts – Under s.14 of the Act, if the Commission is satisfied that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to, return to the complainant the price or as the case may be, the charges paid by the complainant – ‘Deficiency’ is defined under s.2(g) to include any shortcoming or inadequacy in performance which has been undertaken by a person in pursuance of a contract or otherwise relating to any service – Therefore Commission is empowered to direct refund of the price or the charges paid by the consumer
Dismissing the appeal filed by the Developer and partly allowing the appeal filed by the Consumer, the Court HELD: 1. On the question of reckoning the date for handing over of possession of the apartment, the Commission recorded the fact admitted by the Developer in Para 2 of its reply that “the trigger date for clause 10.1 is 26.12.2012, which is the date of execution of the apartment buyer’s agreement”. The Commission calculated 42 months from this period, which turns out to be 26.06.2016. Further, adding the grace period of 180 days, the time for delivery would expire on 26.12.2016. It is again an admitted fact that the occupancy certificate was obtained only on 23.07.2018 and notice for possession was issued to the Consumer on 24.07.2018. Given the factual position and having examined the terms of the Agreement, the Commission found the judgment of this Court in Pioneer Urban Land and Infrastructure Ltd v Govindan Raghvan is a relevant and conclusive precedent. The principle laid down in Pioneer ’s case has been followed consistently in many cases where the terms of the Apartment Buyer’s Agreement were found to be one-sided and entirely loaded in favour of the Developer, and against the allottee at every step. Therefore the Commission was correct in its approach in holding that the clauses of the agreement are one-sided and that the Consumer is not bound to accept the possession of the apartment and can seek refund of the amount deposited by her with interest. [Paras 8.1, 9.1, 10][598-E-G; 600-B-C; 602-B] Pioneer Urban Land and Infrastructure Ltd. v. Govindan Raghvan (2019) 5 SCC 725 : [2019]
5 SCR 1169 – relied on.
2. It is crystal clear that the Consumer Protection Act and the RERA Act neither exclude nor contradict each other. In fact, this Court has held that they are concurrent remedies operating independently and without primacy. When Statutes provisioning judicial remedies fall for construction, the choice of the interpretative outcomes should also depend on the constitutional duty to create effective judicial remedies in furtherance of access to justice. A meaningful interpretation that effectuates access to justice is a constitutional imperative and it is this duty that must inform the interpretative criterion. When Statutes provide more than one judicial fora for effectuating a right or to enforce a dutyobligation, it is a feature of remedial choices offered by the State for an effective access to justice. Therefore, while interpreting statutes provisioning plurality of remedies, it is necessary for Courts to harmonise the provisions in a constructive manner [Paras 14.1, 14.2][606-E-G]
3. The power to direct refund of the amount and to compensate a consumer for the deficiency in not delivering the apartment as per the terms of Agreement is within the jurisdiction of the Consumer Courts. Under Section 14 of the Consumer Protection Act, if the Commission is satisfied…that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to, return to the complainant the price or as the case may be, the charges paid by the complainant. ‘Deficiency’ is defined under Section 2(g) to include any shortcoming or inadequacy in performance which has been undertaken by a person in pursuance of a contract or otherwise relating to any service. It is clear from the statutory position that the Commission is empowered to direct refund of the price or the charges paid by the consumer. A consumer invoking the jurisdiction of the Commission can seek such reliefs as he/she considers appropriate. A consumer can pray for refund of the money with interest and compensation. The consumer could also ask for possession of the apartment with compensation. The consumer can also make a prayer for both in the alternative. If a consumer prays for refund of the amount, without an alternative prayer, the Commission will recognize such a right and grant it, of course subject to the merits of the case. If a consumer seeks alternative reliefs, the Commission will consider the matter in the facts and circumstances of the case and will pass appropriate orders as justice demands. This position is similar to the mandate under Section 18 of the RERA Act. Hence the Commission has correctly exercises its power and jurisdiction in passing the above directions for refund of the amount with interest. [Paras 15, 16, 19][607-F-G; 608-A-D; 609-A; 610-C]
4. For the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts. The Commission in the order impugned has granted interest from the date of last deposit. It does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt Ltd v. DS Dhanda and in modification of the direction issued by the Commission, it is directed that the interest on the refund shall be payable from the dates of deposit. Therefore, the appeal filed by purchaser deserves to be partly allowed. The interests shall be payable from the dates of such deposits. [Para 22.1][611-F-G]
DLF Homes Panchkula Pvt. Ltd. v. DS Dhanda and Ors. (2020) 16 SCC 318 : [2019] 7 SCR 1061; Wing
Commander Arifur Rahman Khan and Aleya Sultana & Ors. v. DLF Southern Homes Private Limited (2020) 16 SCC 512 : [2020] 9 SCR 136; NBCC (India) Ltd. v. Shri Ram Trivedi (2021) 5 SCC 273; DLF Home
Developers Ltd. v. Capital Greens Flat Buyers Association & Ors. (2021) 5 SCC 537; IREO Grace Realtech (P) Ltd. v. Abhishek Khanna & Ors. (2021) 3 SCC 241; Imperia Structures Ltd v. Anil Patni & Anr. (2020) 10 SCC 783; Pioneer Urban Land Infrastructure Ltd. & Anr. v. Union of India & Ors. (2019) 8 SCC 416 : [2019] 10 SCR 381 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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