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2022 (8) TMI 307 - SC - Indian LawsUnfair trade practices - failure to deliver possession of the apartment within the time stipulated as per the Apartment Buyers Agreement - interplay between the judicial remedies under the Act and the Real Estate (Regulation and Development) Act, 2016 - Whether the terms of the Apartment Buyers Agreement amount to an unfair trade practice and whether the Commission is justified in not giving effect to the terms of Apartment Buyer s Agreement as laid down in the case of PIONEER URBAN LAND INFRASTRUCTURE LTD. VERSUS GOVINDAN RAGHAVAN AND PIONEER URBAN LAND INFRASTRUCTURE LTD. VERSUS GEETU GIDWANI VERMA ANOTHER 2019 (4) TMI 231 - SUPREME COURT ? - HELD THAT - 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 certificated 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 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 - the Commission is 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. Whether the Commission has the power under the Consumer Protection Act, 1986 to direct refund of the amount deposited by the Consumer with interest? - HELD THAT - In view of the clear and categorical principles laid down in Imperia, the submissions made on behalf of the Developer have to be rejected. This position has also been affirmed in IREO GRACE REALTECH PVT. LTD. VERSUS ABHISHEK KHANNA AND ORS. 2021 (9) TMI 1154 - SUPREME COURT . In IREO Grace this Court had an occasion to consider the question as to whether, the provisions of the RERA Act, must be given primacy over the Consumer Protection Act, 1986. 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. 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 - the Commission has correctly exercises its power and jurisdiction in passing the above directions for refund of the amount with interest. Whether the relief granted by the Commission require any modification to serve ends of justice? - HELD THAT - 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. We find that this does not amount to restitution - the interest of 9 per cent granted by the Commission is fair and just and we find no reason to interfere in the appeal filed by the Consumer for enhancement of interest. Appeal allowed.
Issues Involved:
1. Whether the terms of the Apartment Buyers Agreement amount to an 'unfair trade practice'. 2. Whether the Commission has the power under the Consumer Protection Act, 1986 to direct refund of the amount deposited by the Consumer with interest. 3. Whether the relief granted by the Commission requires any modification to serve the ends of justice. Issue-wise Detailed Analysis: Issue No. I: Unfair Trade Practice The Court examined Clauses 10.1 and 13.1 of the Apartment Buyers Agreement, which relate to the project completion period and delay compensation. The Commission found that the agreement was one-sided, heavily favoring the Developer and against the Consumer, following the decision in Pioneer Urban Land and Infrastructure Ltd. v. Govind Raghvan. The Developer admitted that the trigger date for clause 10.1 was 26.12.2012, making the possession date 26.06.2016, with a grace period extending it to 26.12.2016. The occupancy certificate was only obtained on 23.07.2018, and possession was offered on 24.07.2018. The Court upheld the Commission’s finding that the clauses were one-sided and constituted an unfair trade practice, as per Section 2(r) of the Consumer Protection Act, 1986. Issue No. II: Commission's Power to Direct Refund The Court addressed the Developer’s contention that the Consumer Protection Act, 1986, and the Real Estate (Regulation and Development) Act, 2016 (RERA Act) provide concurrent remedies. In Imperia Structures Ltd v. Anil Patni, it was held that remedies under the Consumer Protection Act are additional to those under other statutes, including the RERA Act. Section 18 of the RERA Act provides a remedy without prejudice to any other remedy available. The Court concluded that both statutes must be read harmoniously, allowing consumers to choose their preferred remedy. The Commission has the power under Section 14 of the Consumer Protection Act to direct a refund of the amount deposited by the Consumer with interest. The Consumer in this case prayed solely for the return of the amount paid, which the Commission rightly granted. Issue No. III: Modification of Relief The Consumer appealed for interest to be calculated from the date of each installment payment and for the interest rate to be enhanced to 24% p.a. The Developer argued that interest should be linked to the estimated possession date and follow the rate provided in the Interest Act, 1978. The Court found that interest should be paid from the dates of deposit to be restitutionary and compensatory. The interest rate of 9% p.a. granted by the Commission was deemed fair and just. Therefore, the appeal by the Consumer was partly allowed, directing that interest be payable from the dates of deposit. The Developer’s appeal was dismissed. Conclusion: The Supreme Court upheld the Commission’s order directing the Developer to refund the amount paid by the Consumer with interest due to the unjustifiable delay in delivering the apartment. The Court confirmed that the Commission has the power under the Consumer Protection Act to order such a refund and that the terms of the Apartment Buyers Agreement were unfair and one-sided, constituting an unfair trade practice. The Consumer’s appeal for interest from the date of each installment was allowed, but the request for a higher interest rate was denied. The Developer’s appeal was dismissed, and the parties were directed to bear their own costs.
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