Case Law Details
Experion Developers Pvt. Ltd. Vs Sushma Ashok Shiroor (Supreme Court of India)
Conclusion: Where there was delay in handing over possession to homebuyers, there was remedy available to the Consumer under Consumer Protection Act and Real Estate Regular Act which run parallel side by side. Moreover, one sided clauses in Agreement amounted to unfair trade practice and could not govern the refund mechanism therefore, refund was allowable to assessee with 9% interest from the date of deposit allowed.
Held: The Consumer approached the National Disputes Redressal Commission by filing an original complaint alleging that he had paid a total consideration of Rs. 2,06,41,379/- and possession was not granted even till the filing of the complaint. He, therefore, sought a refund of Rs. 2,06,41,379/- along with interest @ 24% p.a. The Developer filed its Written Statement before the Commission stating that though the 42 months period expired on 26-6-2016, the purchaser would only be entitled to delay compensation under Clause 13, for a sum of Rs. 4,54,052/-. Justification for the delay was given by pleading that the Occupation Certificate for Phase-I of the project had already been obtained on 06.12.2017, and application for Occupation Certificate for Phase-2, had already been made. In the affidavit of evidence, the Developer contended that it secured the Occupation Certificate on 23.07.2018 and a notice of possession was issued to the Consumer on 24.07.2018. It was claimed that since possession can be handed over, the complaint must be dismissed. It was held that following the decision in Pioneer Urban Land and Infrastructure Ltd. v. Govindan Raghvan (2019) 5 SCC 725, IREO Grace Realtech (P) Ltd. v. Abhishek Khanna & Ors. (2021) 3 SCC 241 and DLF Home Developers Ltd. v. Capital Greens Flat Buyers Association & Ors. (2021) 5 SCC 537 where it was concluded that one sided clauses in agreement could not govern the terms and the buyer had to be allowed adequate/reasonable compensation for delay in handing over project. Also relying on Imperia Structures Ltd v. Anil Patni & Anr. (2020) 10 SCC 783, the Court upheld that both RERA and Consumer forum could run simultaneously in such matters. Thus the developers appeal was dismissed.
FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER
1. These appeals under Section 23 of the Consumer Protection Act, 19861, arise out of the judgment dated 19.06.2019 passed by the National Consumer Disputes Redressal Commission2. The Commission directed the Appellant-Developer to refund an amount of Rs. 2,06,41,379 with interest @ 9% p.a. to the Respondent-Consumer3 for its failure to deliver possession of the apartment within the time stipulated as per the Apartment Buyers Agreement. In these appeals, we have upheld the Commission’s order insofar as it directed the Developer to refund the amounts paid by the Consumer with interest for the unjustifiable delay in delivering the apartment. On law, we have considered the interplay between the judicial remedies under the Act and the Real Estate (Regulation and Development) Act, 2016 and have explained the remedial choices of a consumer under these statutes. We have held that the Commission created under the Act has the power to direct refund under Section 14 of the Act. We conclude that the Act and the RERA Act neither exclude nor contradict each other and they must be read harmoniously to subserve their common purpose.
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