CIVIL APPEAL NO. 3581-3590 OF 2020

@ CIVIL APPEAL DIARY NO.9796/2019

M/s Imperia Structures Ltd. vs. Anil Patni

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3581-3590 OF 2020

(@ CIVIL APPEAL DIARY NO.9796/2019)

M/S. IMPERIA STRUCTURES LTD. …Appellant

VERSUS

ANIL PATNI AND ANOTHER …Respondents

WITH

CIVIL APPEAL NO.3591 OF 2020

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J U D G M E N T

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

 Arising out of Civil Appeal Diary No. 9796 of 2019

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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 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 18

th

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

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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 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.”

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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/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

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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 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.

Value of goods and servicesRs.76,43,000/-

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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 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-37-C, Village Gharoli Khurd and Basai,

Gurugram, Haryana with regard to License No.64 of 2011

dated 16.07.2011 issued by the Director, 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:-

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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;

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(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;

(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

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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;

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

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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 30

th

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 Force-

Majeure events, delay due to compliance of new rules,

regulations, orders or notifications made/issued by

government or any other authorities with respect to

construction at the project site.

11.That the contents and averments made in Para 11 are

wrong and denied. It is pertinent to mention here that the

construction of the Tower in which the Unit of the

Complainant was allotted is in full Swing and is nearing

possession. The allegations levelled by the Complainant

are concocted & baseless.

9. In their replication, the Respondents submitted, inter alia,:-

“….. the buyer’s agreement was a fixed set of papers,

which was asked to be signed by the complainant and no

modification was entertained by the O.P. On request to

change the one sided clauses, it was told that the buyer’s

agreement has to be signed as it is and in case it is not

acceptable than the allotment will stand cancelled and

earnest money will be forfeited.”

10.Consumer Case No.3011 of 2017 was allowed by the Commission

by its 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,

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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).

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

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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:

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

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handing over the possession shall be paid before 10

th

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:-

“2011-2017The 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.”

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14.After issuance of notice on 05.04.2019, it was submitted by the

Respondents that the Appellant had partially refunded the amounts in terms

of the directions of the Commission. Following details indicate that in four

out of ten cases, partial refund was made.

“

S.No.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 for the Appellant

submitted inter alia:-

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a)The Appellant had completed Phase-I of the Project well-in-

time and Phase-II of the Project concerning about 437 allottees

was the matter in issue. Out of these 437 allottees, only in 59

cases complaints were filed under the CP Act, while Mr.

Himanshu Giri had approached authorities under the RERA Act.

A majority of the allottees had thus reposed faith in the

Appellant.

b)The Appellant had offered alternative 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.

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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.

16.Ms. Priyanjali Singh, learned Advocate for the Respondents as well

as for some of the other Complainants submitted:-

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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.

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e)In any case, as construed by this Court consistently, the remedy

afforded by the CP Act would be an additional remedy to a

consumer and said legal position remained unchanged even

after the enactment of the RERA Act.

17.Three Complainants viz. (a) Chandra Shekhar; (b) Rajat Verma;

and (c) Krishan Kumar appeared in person and advanced submissions. It

was submitted, inter alia, that the decision of the Commission did not call

for any interference and that they be refunded the entire amount with 12%

interest instead of 9% as awarded by the Commission.

18.At the outset, we must deal with two factual issues. It was

concluded by the Commission that; (i) all the Complainants were

‘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

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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 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.”

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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 of

commencement of this Act:

PROVIDED FURTHER that if the Authority thinks

necessary, in the interest of allottees, for projects which

are developed beyond the planning area but with the

requisite permission of the local authority, it may, by

order, direct the promoter of such project to register with

the Authority, and the provisions of this Act or the rules

and regulations made thereunder, shall apply to such

projects from that stage of registration.

(2) Notwithstanding anything contained in sub-section (1),

no registration of the real estate project shall be required—

(a)where the area of land proposed to

be developed does not exceed five

hundred square meters or the

number of apartments proposed to

be developed does not exceed eight

inclusive of all phases: Provided

that, if the appropriate Government

considers it necessary, it may, reduce

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the threshold below five hundred

square meters or eight apartments,

as the case may be, inclusive of all

phases, for exemption from

registration under this Act;

(b)where the promoter has received

completion certificate for a real

estate project prior to

commencement of this Act;

(c) for the purpose of renovation or

repair or re-development which does

not involve marketing, advertising

selling or new allotment of any

apartment, plot or building, as the

case may be, under the real estate

project.

Explanation.—For the purpose of this section, where the

real estate project is to be developed in phases, every such

phase shall be considered a stand alone real estate project,

and the promoter shall obtain registration under this Act

for each phase separately.

4. Application for registration of real estate projects

(1) Every promoter shall make an application to the

Authority for registration of the real estate project in such

form, manner, within such time and accompanied by such

fee as may be prescribed.

(2) The promoter shall enclose the following documents

along with the application referred to in sub-section (1),

namely:—

(a)a brief details of his enterprise

including its name, registered

address, type of enterprise

(proprietorship, societies,

partnership, companies, competent

authority), and the particulars of

registration, and the names and

photographs of the promoter;

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(b) a brief detail of the projects

launched by him, 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 boundaries including the latitude

and longitude of the end points of

the project;

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(g)proforma of the allotment letter,

agreement for sale, and the

conveyance deed proposed to be

signed with the allottees;

(h)the number, type and the carpet area

of apartments for sale in the project

along with the area of the exclusive

balcony or verandah areas and the

exclusive open terrace areas

apartment with the apartment, if

any;

(i)the number and areas of garage for

sale in the project;

(j)the names and addresses of his real

estate agents, if any, for the

proposed project;

(k)the names and addresses of the

contractors, architect, structural

engineer, if any and other persons

concerned with the development of

the proposed project;

(l) a declaration, supported by an

affidavit, which shall be signed by

the promoter or any person

authorised by the promoter, stating:

—

(A)that he has a legal title to the

land on which the development

is proposed along with legally

valid documents with

authentication of such title, if

such land is owned by another

person;

(B)that the land is free from all

encumbrances, or as the case

may be details of the

encumbrances on such land

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including any rights, title,

interest or name of any party in

or over such land along with

details;

(C)the time period within which he

undertakes to complete the

project or phase thereof, as the

case may be;

(D)that seventy per cent. of the

amounts realised for the real

estate project from the allottees,

from time to time, shall be

deposited in a separate account

to be maintained in a scheduled

bank to cover the cost of

construction and the land cost

and shall be used only for that

purpose: Provided that the

promoter shall withdraw the

amounts from the separate

account, to cover the cost of the

project, in proportion to the

percentage of completion of the

project: Provided further that

the amounts from the separate

account shall be withdrawn by

the promoter after it is certified

by an engineer, an architect and

a chartered accountant in

practice that the withdrawal is

in proportion to the percentage

of completion of the project:

Provided also that the promoter

shall get his accounts audited

within six months after the end

of every financial year by a

chartered accountant in practice,

and shall produce a statement of

accounts 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

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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

Schduled 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

regulations made thereunder, and

provide a registration number, including

a Login Id and password to the applicant

for accessing the website of the

Authority and to create his web page

and to fill therein the details of the

proposed project; or

(b) reject the application for reasons to be

recorded in writing, if such application

does not conform to the provisions of

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this Act or the rules or regulations made

thereunder:

PROVIDED that no application shall be rejected unless

the applicant has been given an opportunity of being heard

in the matter.

(2) If the Authority fails to grant the registration or reject

the application, as the case may be, as provided under sub-

section (1), the project shall be deemed to have been

registered, and the Authority shall within a period of seven

days of the expiry of the said period of thirty days

specified under sub-section (1), provide a registration

number and a Login Id and password to the promoter for

accessing the website of the Authority and to create his

web page and to fill therein the details of the proposed

project.

(3) The registration granted under this section shall be

valid for a period declared by the promoter under sub-

clause (C) of clause (1) of sub-section (2) of section 4 for

completion of the project or phase thereof, as the case may

be.

18. Return of amount and compensation

(1) If the promoter fails to complete or is unable to give

possession of an apartment, plot or building,—

(a) in accordance with the terms of the

agreement for sale or, as the case may

be, duly completed by the date specified

therein; or

(b) due to discontinuance of his business as

a developer on account of suspension or

revocation of the registration under this

Act or for any other reason,

he shall be liable on demand to the allottees, in case the

allottee wishes to withdraw from the project, without

prejudice to any other remedy available, to return the

amount received by him in respect of that apartment, plot,

building, as the case may be, with interest at such rate as

may be prescribed in this behalf including compensation

in the manner as provided under this Act:

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PROVIDED that where an allottee does not intend to

withdraw from the project, he shall be paid, by the

promoter, interest for every month of delay, till the

handing over of the possession, 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 subsection 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 project, including the

provisions for water, sanitation, electricity and other

amenities and services as agreed to between the promoter

and the allottee in accordance with the terms and

conditions of the agreement for sale.

(3) The allottee shall be entitled to claim the possession of

apartment, plot or building, as the case may be, and the

association of allottees shall be entitled to claim the

possession of the common areas, as per the declaration

given by the promoter under sub-clause (C) of clause (I) of

sub-section (2) of section 4.

(4) The allottee shall be entitled to claim the refund of

amount paid along with interest at such rate as may be

prescribed and compensation in the manner as provided

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under this Act, from the promoter, if the promoter fails to

comply or is unable to give possession of the apartment,

plot or building, as the case may be, in accordance with

the terms of agreement for sale or due to discontinuance of

his business as a developer on account of suspension or

revocation of his registration under the provisions of this

Act or the rules or regulations made thereunder.

(5) The allottee shall be entitled to have the necessary

documents and plans, including that of common areas,

after handing over the physical possession of the

apartment or plot or building as the case may be, by the

promoter.

(6) Every allottee, who has entered into an agreement for

sale to take an apartment, plot or building as the case may

be, under section 13, shall be responsible to make

necessary payments in the manner and within the time as

specified in the said agreement for sale and shall pay at the

proper time and place, the share of the registration

charges, municipal taxes, water and electricity charges,

maintenance charges, ground rent, and other charges, if

any.

(7) The allottee shall be liable to pay interest, at such rate

as may be prescribed, for any delay in payment towards

any amount or charges to be paid under sub-section (6).

(8) The obligations of the allottee under sub-section (6)

and the liability towards interest under sub-section (7) may

be reduced when mutually agreed to between the promoter

and such allottee.

(9) Every allottee of the apartment, plot or building as the

case may be, shall participate towards the formation of an

association or society or cooperative society of the

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

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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, planning, law, commerce,

accountancy, industry, management, social service, public

affairs or administration:

Provided that a person who is, or has been, in the service

of the State Government shall not be appointed as a

Chairperson unless such person has held the post of

Additional Secretary to the Central Government or any

equivalent post in the Central Government or State

Government:

Provided further that a person who is, or has been, in the

service of the State Government shall not be appointed as

a member unless such person has held the post of

Secretary to the State Government or any equivalent post

in the State Government or Central Government.

46. Qualifications for appointment of Chairperson and

Members.-

1) A person shall not be qualified for appointment as the

Chairperson or a Member of the Appellate Tribunal unless

he,—

(a) in the case of Chairperson, is or has been a

Judge of a High Court; and

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(b) in the case of a Judicial Member he has held a

judicial office in the territory of India for at least

fifteen years or has been a member of the Indian

Legal Service and has held the post of Additional

Secretary of that service or any equivalent post,

or has been an advocate for at least twenty years

with experience in dealing with real estate

matters; and

(c) in the case of a Technical or Administrative

Member, he is a person who is well-versed in the

field of urban development, housing, real estate

development, infrastructure, economics,

planning, law, commerce, accountancy, industry,

management, public affairs or administration and

possesses experience of at least twenty years in

the field or who has held the post in the Central

Government or a State Government equivalent to

the post of Additional Secretary to the

Government of India or an equivalent post in the

Central Government or an equivalent post in the

State Government.

(2) The Chairperson of the Appellate Tribunal shall be

appointed by the appropriate Government in consultation

with the Chief Justice of High Court or his nominee.

(3) The Judicial Members and Technical or Administrative

Members of the Appellate Tribunal 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 handling 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:

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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 adjudicating officer

as expeditiously as possible and dispose of the same

within a period of sixty days from the date of receipt of the

application:

PROVIDED that where any such application could not be

disposed of within the said period of sixty days, the

adjudicating officer shall record his reasons in writing for

not disposing of the application within that period.

(3) While holding an inquiry the adjudicating officer shall

have power to summon and enforce the attendance of any

person acquainted with the facts and circumstances of the

case to give evidence or to produce any document which

in the opinion of the adjudicating officer, may be useful

for or relevant to the subject matter of the inquiry and if,

on such inquiry, he is satisfied that the person has failed to

comply with the provisions of any of the sections specified

in sub-section (1), he may direct to pay such compensation

or interest, as the case any be, as he thinks fit in

accordance with the provisions of any of those sections.

79. Bar of jurisdiction

No civil court shall have jurisdiction to entertain any suit

or proceeding in respect of any matter which the Authority

or the adjudicating officer or the Appellate Tribunal is

empowered by or under this Act to determine and no

injunction shall 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.

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88. Application of other laws 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.

89. Act to have overriding effect

The provisions of this Act shall have effect,

notwithstanding anything inconsistent therewith contained

in any other law for the time being in force.”

20.The question whether the remedies available to the consumers

under the provisions of the CP Act would be additional remedies, was

considered by this Court in some cases, the notable cases being:-

i) In Secretary, Thirumurugan Cooperative Agricultural

Credit Society vs. M. Lalitha (dead) through LRs. and others



, this

Court observed:-

“11. From the Statement of Objects and Reasons and the

scheme of the 1986 Act, it is apparent that the main

objective of the Act is to provide for better protection of

the interest 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

 (2004) 1 SCC 305

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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 provided under other Acts unless there is a

clear bar.”

The issue in this case was whether in the face of Section 156 of the

Tamil Nadu Cooperative Societies Act, 1983 the concerned persons could

avail remedies under the CP Act. Interpreting Section 3 of the CP Act, it

was held that the remedy provided under the CP Act would be in addition

to the remedies provided under the other Acts.

ii) In National Seeds Corporation Limited vs. M.

Madhusudhan Reddy and another



, it was observed:-

“57. It can thus be said that in the context of

farmers/growers and other consumers of seeds, the Seeds

Act is a special legislation insofar as the provisions

contained therein ensure that those engaged in agriculture

and horticulture get quality seeds and any person who

violates the provisions of the Act and/or the Rules is

brought before the law and punished. However, there is no

provision in that Act and the Rules framed thereunder for

compensating the farmers, etc. who may suffer adversely

due to loss of crop or deficient yield on account of

defective seeds supplied by a person authorised to sell the

seeds. That apart, there is nothing in the Seeds Act and the

Rules which may give an indication that 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(1)(d) of the Consumer

Protection Act. As a matter of fact, any attempt to exclude

 (2012) 2 SCC 506

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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(1)(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.”

In this case the provisions of the CP Act and those under the Seeds

Act, 1966 were considered.

iii)In Virender Jain vs. Alaknanda Cooperative Group

Housing Society Limited and others



, it was observed by this Court

as under:-

“13. The other question which needs to be considered is

whether the District Forum should not 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,

 (2013) 9 SCC 383

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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. M. Lalitha

3

, Kishore Lal v.

ESI Corpn.



and National Seeds Corpn. Ltd. v. M.

Madhusudhan Reddy

2

.

15. In the last mentioned judgment, National Seeds Corpn.

Case

4

, this Court referred to the earlier judgments in Fair

Air Engineers (P) Ltd. v. N.K. Modi



, Thirumurugan

Coop. Agricultural Credit Society v. M. Lalitha

3

, Skypak

Couriers Ltd. v. Tata Chemicals Ltd.



and Trans

Mediterranean Airways v. Universal Exports



and held that

the remedy available under the Act is in addition to the

remedies available under other statutes and the availability

of alternative remedies is not a bar to the entertaining of a

complaint filed under the Act.”

In this case the statutory remedies available under the Haryana

Cooperative Societies Act, 1984 as against those under the CP Act was the

matter in issue.

21.It has consistently been held by this Court that the remedies

available under the provisions of the CP Act are additional remedies over

and above the other remedies including those made available under any

special statutes; and that the availability of an alternate remedy is no bar

in entertaining a complaint under the CP Act.

 (2007) 4 SCC 579

 (1996) 6 SCC 385

 (2000) 5 SCC 294

 (2011) 10 SCC 316

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22.Before we consider whether the provisions of the RERA Act have

made any change in the legal position stated in the preceding paragraph,

we may note that an allottee placed in circumstances similar to that of the

Complainants, could have initiated following proceedings before the

RERA Act came into force.

A)If he satisfied the requirements of being a “consumer” under the

CP Act, he could have initiated proceedings under the CP Act in

addition to normal civil remedies.

B)However, if he did not fulfil the requirements of being a

“consumer”, he could initiate and avail only normal civil remedies.

C)If the agreement with the developer or the builder provided for

arbitration:-

i)in cases covered under Clause ‘B’ hereinabove, he could

initiate or could be called upon to invoke the remedies in

arbitration.

ii)in cases covered under Clause ‘A’ hereinabove, in

accordance with law laid down in Emaar MGF Ltd and

anr. Vs. Aftab Singh



, he could still choose to proceed

under the CP Act.

23. In terms of Section 18 of the RERA Act, if a promoter fails to

complete or is unable to give possession of an apartment duly completed

 (2019) 12 SCC 751

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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 an allottee is the only and exclusive

modality to raise a grievance and whether the provisions of the RERA

Act bar consideration of the grievance of an allottee by other fora.

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25.Section 79 of the RERA Act bars jurisdiction of a Civil Court to

entertain any suit or proceeding in respect of any matter which the

Authority or the adjudicating officer or the Appellate Tribunal is

empowered under the RERA Act to determine. Section 88 specifies that

the provisions of the RERA Act would be in addition to and not in

derogation of the provisions of any other law, while in terms of Section

89, the provisions of the RERA Act shall have effect notwithstanding

anything inconsistent contained in any other law for the time being in

force.

26.On plain reading of Section 79 of the RERA Act, an allottee

described in category (B) stated in paragraph 22 hereinabove, would

stand barred from invoking the jurisdiction of a Civil Court. However,

as regards the allottees who can be called “consumers” within the

meaning of the CP Act, two questions would arise; a) whether the bar

specified under Section 79 of the RERA Act would apply to proceedings

initiated under the provisions of the CP Act; and b) whether there is

anything inconsistent in the provisions of the CP Act with that of the

RERA Act.

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27.In Malay Kumar Ganguli vs. Dr. Sukumar Mukherjee



, it was

held by this Court:-

“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 Code of Civil Procedure. It may have all the trappings

of the civil court but yet it cannot be called a civil court.

(See Bharat Bank Ltd. V. Employees



and Nahar Industrial

Enterprises Ltd. vs. Hong Kong & Shanghai Banking

Corpn



.

On the strength of the law so declared, 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.

28.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

 (2009) 9 SCC 221

 AIR 1950 SC 188 : 1950 SCR 459

 (2009) 6 SCC 635

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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 the special

expertise and the qualifications of the Chairpersons and Members of the

Authority (Section 22) and the Appellate Tribunal (Section 46), such

authorities alone must be held entitled to decide all issues concerning the

Project registered under the RERA Act. It was submitted that if the

allottees were to be permitted to initiate parallel proceedings before the

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fora under the CP Act, the financial drain on the promoter would render

completion of construction an impossibility and, therefore, the RERA

Act in general and Section 89 in particular be construed in such a way

that all the issues pertaining to the concerned project be decided only by

the authorities under the RERA Act. Even with acceptance of such

interpretation, the allottees would still be entitled to approach the

authorities under Section 18 of the RERA Act.

30.It is true that some special authorities are created under the RERA

Act for the regulation and promotion of the real estate sector and the

issues concerning a registered project are specifically entrusted to

functionaries under the RERA Act. But for the present purposes, we

must go by the purport of Section 18 of the RERA Act. Since it gives a

right “without prejudice to any other remedy available’, in effect, such

other remedy is acknowledged and saved subject always to the

applicability of Section 79.

31.At this stage, we may profitably refer to the decision in Pioneer

Urban Land and Infrastructure Limited and another vs. Union of

India and another



, where a bench of three Judges of this Court was

called upon to consider the provisions of Insolvency and Bankruptcy

 (2019) 8 SCC 416

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Code, 2016, RERA Act and other legislations including the provisions of

the CP Act. One of the conclusions arrived at by this Court was:-

“100. RERA is to be read harmoniously with the Code, as

amended by the Amendment Act. It is only in the event of

conflict that the Code will prevail over RERA. Remedies

that are given to allottees of flats/apartments are therefore

concurrent remedies, such allottees of flats/apartments

being in a position to avail of remedies under the

Consumer Protection Act, 1986, RERA as well as the

triggering of the Code.”

32.We, therefore, reject the submissions advanced by the Appellant

and answer the questions raised in paragraph 26 hereinabove against the

Appellant.

33.We 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

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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



(hereinafter referred as, “2019 Act”) was enacted by the Parliament “to

provide for protection of the interests of consumers and for the said

purpose, to establish authorities for timely and effectively administration

and settlement of the consumers’ dispute and for matters connected

therewith or incidental thereto”. Sections 2(7), 2(33), 2(37), and 2(42)

define expressions “Consumer”, “Product”, “Product Seller” and

“Service” respectively. Sections 85 and 86 deal with liability of “Product

Service Provider” and “Product Seller”. Sections 100 and 107 of 2019

Act are to the following effect:-

“100. 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.

107. (1) The Consumer Protection Act, 1986 is hereby

repealed.

(2) Notwithstanding such repeal, anything done or any

action taken or purported to have been done or taken under





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

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the Act hereby repealed shall, in so far as it Is not

inconsistent with the provisions of this Act, be deemed to

have been done or taken under the corresponding

provisions of this Act.

(3) The mention of particular matters in sub-section (2)

shall not be held to prejudice or affect the general

application of section 6 of the General Clauses Act, 1897

with regard to the effect of repeal.”

Section 100 of 2019 Act is akin to Section 3 of the CP Act and

Section 107 saves all actions taken or purported to have been taken

under the CP Act. It is significant that Section 100 is enacted with an

intent to secure the remedies under 2019 Act dealing with protection of

the interests of Consumers, even after the RERA Act was brought into

force.

Thus, the proceedings initiated by the complainants in the present

cases and the resultant actions including the orders passed by the

Commission are fully saved.

35.Resultantly, we reject all the submissions advanced by the

Appellant. These appeals are accordingly dismissed affirming the view

taken by the Commission. We quantify the costs at Rs.50,000/- (Rupees

Fifty Thousand only) to be paid by the Appellant in respect of each of the

Consumer Cases, over and above the amounts directed to be made over to

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the Complainants and shall form part of the amount payable by the

Appellant to the Complainants.

36.All the Complainants are entitled to execute the orders passed by

the Commission in their favour, in accordance with law.

...…..……………….J.

[Uday Umesh Lalit]

.…………………….J.

[Vineet Saran]

New Delhi;

November 02, 2020.