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A DUAL APPROACH OF REMEDIES FOR HOME BUYERS
The Hon’ble Supreme Court in the matter of Imperia Structures Limited v Anil Patni and Others1 in a significant verdict held that Real Estate (Regulation and Development) Act, 2016 (RERA Act) does not bar remedies under Consumer Protection Act, 2019 (CP Act).
The facts of the case are as follows:
i. A Housing Scheme called “The ESFERA” in Sector 13C, Gurgaon, Haryana (hereinafter referred to as ‘the Project’) was launched by the Appellant in 2011.
ii. 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 during the period of November 2013.
iii. On 01.05.2016, the RERA Act came into force.
iv. As per the Agreement, the possession of the unit was to be handed over within 42 months from the date of the Agreement.
v. Even after four years, there were no signs of the Project getting completed. In these circumstances Consumer Cases were filed before the National Consumer Disputes Redressal Commission (NCDRC) under the CP Act.
vi. On 17.11.2017, the Project was registered with Haryana Real Estate Regulatory Authority, Panchkula.
vii. The period had expired well before the Project was registered under the provisions of the RERA Act.
viii. The NCDRC allowed the complaint and ordered the builder to pay compensation.
ix. Challenging the NCDRC judgment, the builder approached the Supreme Court.
x. One of the contentions raised in the appeal was that since the RERA registration was valid till December 2020, the Project could not be said to be delayed and there could be no finding that there was deficiency on the part of the builder.
xi. 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.
Analysis:
The Hon’ble Supreme Court considered the followed issues:
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?
The Hon’ble Supreme Court referred to the following cases to determine whether the remedies available to the consumers under the provisions of the CP Act would be additional remedies or not:
i. In the matter of Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (dead) through L.Rs. and Ors2 wherein, the Court relying upon Section 3 of the CP Act held that the provisions of the Act shall be in addition to and not in derogation of any other provisions of any other law for the time being in force and 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 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.
ii. In the matter of National Seeds Corporation Limited v. M. Madhusudhan Reddy and Anr3 wherein the issues were 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. The Apex Court observed that 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 CP Act are not available to the farmers who are otherwise covered by the wide definition of “consumer” defined under Section 2(1)(d) of the said Act. As a matter of fact, any attempt to exclude the farmers from the ambit of the CP 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 CP Act should be so interpreted.
iii. In the matter of Virender Jain v. Alaknanda Cooperative Group Housing Society Limited and Ors4, the question that was considered was 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. The Apex Court held that the act of approval by the Assistant Registrar, 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.
The Hon’ble Supreme Court observed that it has been consistently held 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.
The Hon’ble Supreme Court before analysing the provisions of RERA Act and changes in the legal position if any noted the general principles 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. v. Aftab Singh5, he could still choose to proceed under the CP Act.
The Hon’ble Supreme Court then analysed the following provisions of the RERA Act before dealing with the issues narrated above.
a) 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 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.
b) 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.
c) 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.
d) It is up-to the allottee to proceed either under Section 18(1) or under proviso to Section 18(1). 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.
e) 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. On plain reading of said section, an allottee described in category (b) stated hereinabove, would stand barred from invoking the jurisdiction of a Civil Court.
f) 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.
g) The Hon’ble Supreme Court then referred to judgement of Malay Kumar Ganguli v. Dr. Sukumar Mukherjee6, wherein the Court held 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 Code of Civil Procedure. It may have all the trappings of the Civil Court but it cannot be called a Civil Court yet.
h) The proviso to Section 71(1) of the RERA Act which 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.
i) A contention was raised on behalf of the builder 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.
j) It was also contended that if the allottees were to be permitted to initiate parallel proceedings before the 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.
k) The Hon’ble Supreme Court while accepting the contentions raised by the builder 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 and relied on section 18 of the RERA Act which gave a right ‘without prejudice to any other remedy available’, which in effect is, such other remedy is acknowledged and saved subject always to the applicability of Section 79.
l) The Hon’ble Supreme Court then relied upon its latest judgement in the matter of Pioneer Urban Land and Infrastructure Limited and Anr. v. Union of India and Another7, wherein a bench of three Judges of the Court was called upon to consider the provisions of Insolvency and Bankruptcy Code, 2016, RERA Act and other legislations including the provisions of the CP Act. One of the conclusions arrived at by this Court was:
  “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.”
Finding No.1:
The Hon’ble Supreme Court on the forte of the law so declared arrived at a finding that 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. 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.
Finding No.2:
The entitlement of the Complainants must be considered in the light of the terms of the Agreement. The Agreement stipulates that construction should have been completed in 42 months and the period had expired well before the Project was registered under the provisions of the RERA Act. Therefore, merely because the registration under the RERA Act was 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.
Finding No.3:
Dismissed the appeals and held that the complainants are entitled to execute the orders passed by the Commission in their favour, in accordance with law.
CONCLUSION:
The judgement of the Hon’ble Apex Court would be regarded as one of the most significant verdicts of the Apex Court which definitely strengthen the rights/remedies of the home buyers against erring builders. Further, the home buyers would surely welcome this order as it settles the legal position that they cannot be forced to choose a forum as per the convenience of builders.

1.    Civil Appeal Nos. 3581-3590 of 2020  
2.    (2004) 1 SCC 305  
3.    (2012) 2 SCC 506  
4.    (2013) 9 SCC 383  
5.    (2019) 12 SCC 751  
6.    (2009) 9 SCC 221  
7.    (2019) 8 SCC 416