Supreme Court - Daily Orders
M/S Imperia Structure Ltd. vs Brig. Harit Pant on 28 March, 2022
Bench: Uday Umesh Lalit, S. Ravindra Bhat, Pamidighantam Sri Narasimha
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1816 OF 2022
M/s. IMPERIA STRUCTURE LTD. Appellant
VERSUS
BRIG. HARIT PANT Respondent
O R D E R
This appeal arises out of the judgment and order dated 11.10.2021 passed by the National Consumer Disputes Redressal Commission, New Delhi (“National Commission” for short) in Consumer Case No.1043 of 2018.
The National Commission in paragraph 10 of its judgment relied upon the decision of this Court in Imperia Structures Ltd. v. Anil Patni & Another, (2020) 10 SCC 783. Paragraphs 18, 25 and 33 of the decision in Imperia Structures Ltd. (supra) were as under:
“18. Ms Priyanjali Singh, learned advocate for the respondents as well as for some of the other complainants submitted:
18.1. 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 Signature Not Verified decided in favour of the complainants. Digitally signed by Dr. Mukesh Nasa Date: 2022.04.01 16:01:33 IST 18.2. The question whether the delay occurred due to force Reason: majeure events was also rightly answered in favour of the complainants and no reasonable explanation was available on record to dislodge that finding.2
18.3. In the backdrop of these findings, the Commission was justified in accepting the claim of the complainants.
In fact, the award of interest @ 9% p.a. was at a lower level.
18.4. 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.
18.5. 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 the said legal position remained unchanged even after the enactment of the RERA Act.
25. 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. 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 up to 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.
33. 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 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 project concerned be decided only by the 3 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.” Since the National Commission has followed the decision of this Court in Imperia Structures Ltd. (supra), we see no reason to entertain this appeal.
The Civil Appeal is, accordingly, dismissed.
…………………………………………….J. (UDAY UMESH LALIT) …………………………………………….J. (S. RAVINDRA BHAT) …………………………………………….J. (PAMIDIGHANTAM SRI NARASIMHA) New Delhi;
March 24, 2022.
4IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.1899-1906 OF 2022 M/s. IMPERIA STRUCTURE LTD. Appellant VERSUS BALJOR SINGH JAKHAR ETC. Respondents O R D E R These appeals arise out of the judgment and order dated 11.10.2021 passed by the National Consumer Disputes Redressal Commission, New Delhi (“National Commission” for short) in Consumer Case Nos.1044 of 2018, 1045 of 2018, 1046 of 2018, 1047 of 2018, 1048 of 2018, 1190 of 2018, 1191 of 2018 and 2590 of 2018.
The National Commission in paragraph 10 of its judgment relied upon the decision of this Court in Imperia Structures Ltd. v. Anil Patni & Another, (2020) 10 SCC 783. Paragraphs 18, 25 and 33 of the decision in Imperia Structures Ltd. (supra) were as under:
“18. Ms Priyanjali Singh, learned advocate for the respondents as well as for some of the other complainants submitted:
18.1. 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.
18.2. 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.5
18.3. In the backdrop of these findings, the Commission was justified in accepting the claim of the complainants.
In fact, the award of interest @ 9% p.a. was at a lower level.
18.4. 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.
18.5. 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 the said legal position remained unchanged even after the enactment of the RERA Act.
25. 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. 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 up to 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.
33. 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 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 6 pertaining to the project concerned 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.” Since the National Commission has followed the decision of this Court in Imperia Structures Ltd. (supra), we see no reason to entertain this appeal.
The Civil Appeal is, accordingly, dismissed.
…………………………………………….J. (UDAY UMESH LALIT) …………………………………………….J. (S. RAVINDRA BHAT) …………………………………………….J. (PAMIDIGHANTAM SRI NARASIMHA) New Delhi;
March 24, 2022.
7ITEM NO.9 COURT NO.2 SECTION XVII-A (HEARING THROUGH VIDEO CONFERENCING) S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No.1816/2022 M/s. IMPERIA STRUCTURE LTD. Appellant(s) VERSUS BRIG. HARIT PANT Respondent(s) (FOR ADMISSION; and, IA No.33573/2022 – FOR STAY) WITH C.A. Nos.1899-1906/2022 (XVII-A) (IA No.35552/2022 – FOR EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT; and IA No.35551/2022 – FOR STAY) Date : 28-03-2022 These appeals were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE UDAY UMESH LALIT HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE PAMIDIGHANTAM SRI NARASIMHA For Appellant(s) Ms. Pinaki Misra, Sr. Adv.
Mr. Pravin Bahadur, Adv.
Mr. Amit Agarwal, Adv.
Ms. Kanika Gomber, Adv.
Mr. Saurabh Kumar, Adv.
Mr. S. Anjani Kumar, Adv.
Mr. Navin Kumar Sehrawat, Adv. Mr. Vishnu Kant, AOR For Respondent(s) Mr. Rahul Sharma, Adv.
Mr. S. Santanam Swaminadhan, Adv. Ms. Abhilasha Shrawat, Adv. Mr. Kartik Malhotra, Adv. Mr. Prabhash Malik, Adv.
Ms. Aarthi Rajan, Adv.
Ms. Aarthi Rajan, AOR UPON hearing the counsel the Court made the following O R D E R (MUKESH NASA) (VIRENDER SINGH) COURT MASTER BRANCH OFFICER