Delhi District Court
Smt. Manju Gutpa vs M/S Parsvnath Developers Ltd on 12 October, 2021
IN THE COURT OF SHREYA ARORA MEHTA,
ADDITIONAL SENIOR CIVIL JUDGE, NEW DELHI DISTRICT,
PATIALA HOUSE COURT, NEW DELHI
RCA No:3/2020
1. Smt. Manju Gutpa,
W/o Sh. Suresh Kumar Gupta,
R/o C-214, Gali No.8, Majlish Park,
Delhi.
2. Smt. Anjali Garg,
W/o Sh. Sushil Kumar Garg,
R/o C-214, Gali No.8, Majlish Park,
Delhi ..........Appellants
Versus
M/s Parsvnath Developers Ltd.
Parsvnath Tower,
Shahdara, Delhi ...........Respondent
Date of Institution : 18.03.2020
Date on which judgment was reserved : 05.10.2021
Date of pronouncing judgment : 12.10.2021
JUDGMENT
1. Vide this judgment this court will adjudicate the appeal against the order dated 13.02.2020 (herein after referred as "impugned order') passed by the ld. Civil Judge, Delhi in suit no.847/2019 titled as Manju Gupta & Anr. Vs. Parsvnath Developers Ltd. The appellant herein seeks setting aside of the aforesaid order and to dismiss the application of the respondent filed under Order VII Rule 11 of the Code of Civil Procedure, 1908.
2. It is the case of the appellant that the respondent is a builder/developer and is engaged in the business of real estate development and construction related activities. In the year 2004, the RCA No.3/2020 Smt. Manju Gupta & Anr. Vs. M/s Parsvnath Developers Ltd. Page No.1 of 14 respondent offered for registration of allotment of residential plot from the prospective customers in their proposed upcoming project at Parsvnath City, Sonipat, Haryana. It was represented that the respondent had the land and the required permission and the project would be launched very soon. One Ms. Anju R/o H. No.538, Ward No.12, Sonipat booked one plot of 300 sq. yds. @ Rs.3700/- per sq. yd. excluding EDC with the respondent against receipt no.PC000995 dated 03.09.2004. It is further stated that in December 2005 that both the appellants made inquiries about the booking from the officials of the respondent and purchased the booking of Ms. Anju. On 27.12.2005, the appellants were officially relegated to the position of original allottee and also paid a sum of Rs.3,75,000/-. Thereupon, letter dated 28.01.2006 was issued by the respondent qua transfer of the booking in the name of the appellants. The respondents allotted and offered possession to various customers in Block-A in Parsvnath City, Sonipat who booked the plot in the year 2004. Also in the year 2017, the respondent offered possession of plot to various persons in the same project. However, the appellant was not offered any possession of the booked plot and only got vague answers from the respondent. The appellants have paid a total amount of Rs.5,55,400/- and is ready and willing to pay the balance amount but the respondent failed to perform their duty of developing the plot and handing over its possession to the appellants. The appellants served a legal notice dated 25.01.2019 to hand over the possession and to pay compensation but to no avail. Hence, the suit no.847/2019 was filed before the ld. Civil Judge for a decree of mandatory injunction in favour of the plaintiff and against the defendants directing the defendants, its agent, servants, employees to give the exact or approximate date in writing as to when the possession of the booked RCA No.3/2020 Smt. Manju Gupta & Anr. Vs. M/s Parsvnath Developers Ltd. Page No.2 of 14 plot against customer code no.PS/M0149 in Parsvnath City, Sonipat, Haryana will be given to the appellants.
3. In the initial stage of hearing before the ld. Civil Judge, an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 was filed by the respondent and was allowed vide impugned order dated 13.02.2020 and the plaint of the plaintiff was rejected under Order VII Rule 11 (d) of the Code of Civil Procedure, 1908 being expressly barred by law. The ld. Civil Judge opined that the jurisdiction of the civil court to grant the relief as prayed for is expressly barred under Section 79 of the Real Estate (Regulation and Development) Act, 2016.
4. Ld. Civil Judge in the impugned order took note of Order VII Rule 11 (d) of the Code of Civil Procedure, 1908 and observed that the averments in the plaint are germane and the pleas taken by the defendant in the written statement are irrelevant. For considering application filed under Order VII Rule 11 of the Code of Civil Procedure, 1908, the statement made by the plaintiff in the plaint must show without any doubt or dispute that the suit is barred by any law in force. The ld. Civil Judge took note of the judgment titled "Pioneer Urban Land Infrastructure Ltd. Vs. Union of India", (2019) (8) SCC 416 which highlights the scope of the Real Estate (Regulation and Development) Act, 2016. Further, observed the rights of an "Allottee" as provided under Section 19 of the Real Estate (Regulation and Development) Act, 2016 and the bar of jurisdiction under Section 79 of the Real Estate (Regulation and Development) Act, 2016.
5. The ld. Civil Judge recorded its finding that the relief sought by the appellant in the suit falls within the rights granted to allottee/consumer under Section 19 of the Real Estate (Regulation and Development) Act, 2016. Section 20 of the Real Estate RCA No.3/2020 Smt. Manju Gupta & Anr. Vs. M/s Parsvnath Developers Ltd. Page No.3 of 14 (Regulation and Development) Act, 2016 provides for the establishment of the Real Estate Regulatory Authority before which any aggrieved person may file a complaint for the contravention of provisions of the Real Estate (Regulation and Development) Act, 2016 under Section 31 of the said Act. Taking note of the judgment of "Dhulabhai Vs. State of M.P.", (1968) 3 SCR 662, the Civil Judge observed that the jurisdiction of the civil courts must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit.
6. The appellant in the appeal before this court submits that Order VII Rule 11 (d) of the Code of Civil Procedure, 1908 is not applicable as there is no statement in the plaint by which the suit appears to be barred by the law. The ld. Trial Court failed to consider that the respondent had no land for the booked plot and no license by the competent authority and there was no ongoing project. Thus, the provisions of the Real Estate (Regulation and Development) Act, 2016 were not applicable to the present case. The ld. Trial Court failed to appreciate Section 88 of the Real Estate (Regulation and Development) Act, 2016. An error of law was committed by the Trial Court holding that the relief sought by the appellant falls under Section 19 of the Real Estate (Regulation and Development) Act, 2016. The appellant submits that the rights under Section 19 given to the allottee defined under Section 2 (d) of the Real Estate (Regulation and Development) Act, 2016 and the appellant is not an allottee as no plot has been allotted till date and the rights under Section 19 of the Real Estate (Regulation and Development) Act, 2016 are not available to them. The ld. Trial Court failed to take note of Section 2 (zj) and (zn) of the Real Estate (Regulation and Development) Act, 2016 as per which a Real Estate Project must exist. In the present RCA No.3/2020 Smt. Manju Gupta & Anr. Vs. M/s Parsvnath Developers Ltd. Page No.4 of 14 case, there is no existing Real Estate Project. The Trial Court failed to appreciate that under Section 31 of the Real Estate (Regulation and Development) Act, 2016 the complaint can be filed only for contravention of the provision of the Act, which is not applicable to the present case. Further, under Section 79 of the Real Estate (Regulation and Development) Act, 2016 the jurisdiction of Civil Court is barred in respect of any matter which the appropriate authority is empower to "determine". It is submitted that the appellant's case is outside the scope of "to determine" and the impugned order is liable to be set aside.
7. Final arguments heard at length on behalf of the appellants and the respondents. Record perused.
8. The Real Estate (Regulation and Development) Act, 2016 in its statement of objects and reasons stipulates that it is "an Act to establish the Real Estate Regulatory Authority for regulation and promotion of the real estate sector and to ensure sale of plot, apartment or building, as the case may be, or sale of real estate project, in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish an adjudicating mechanism for speedy dispute redressal and also to establish the Appellate Tribunal to hear appeals from the decisions, directions or orders of the Real Estate Regulatory Authority and the adjudicating officer and for matters connected therewith or incidental thereto".
9. The appellant herein in the plaint averred that the respondent offered allotment of residential plots in their proposed upcoming project Parsvnath City, Sonipat, Haryana and one Ms. Anju booked one plot of 300 sq. yds. @ Rs.3700/- per sq. yds. and on 27.12.2005 the appellant officially relegated to the possession of the original RCA No.3/2020 Smt. Manju Gupta & Anr. Vs. M/s Parsvnath Developers Ltd. Page No.5 of 14 allottee and also paid a sum of Rs.3,75,000/-.
10. There are clear averments in the plaint as to the booking of the real estate project with the respondent and relegating to the possession of the original allottee on 27.12.2005. The contention of the appellant that the appellant is not an allottee as no plot has been allotted till date and the rights under Section 19 of the Real Estate (Regulation and Development) Act, 2016 are not available to him. The said contention of the appellant is contradictory keeping in view the clear averments in the plaint made by the appellant, as noted. On one hand the appellant submits that they booked the plot and seek relief from the civil court in the form of a mandatory injunction for a direction to give the date of possession and on the other hand submits that he is not an allottee as no plot has been allotted. The appellant failed to show to this court any provision under the Real Estate (Regulation and Development) Act, 2016 which stipulates that the Act is applicable to only those who have been allotted flats or plots. In fact, the said contention is not only contrary to the averments but also self destructive to the appellant to bring the matter outside the purview of the Real Estate (Regulation and Development) Act, 2016.
11. The appellant cited para 15 of the judgment in "Kamala and Ors. Vs. K.T. Eshwara SA and Ors.", AIR 2008 SC 3174, which states that Order VII Rule 11 (d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. The contention that there is no statement made in the plaint vide which the suit of the plaintiff is barred by the law is of no avail in view of the observation made in the preceding paragraph.
12. The appellant has further relied upon Section 2 (zj) and (zn) of the Real Estate (Regulation and Development) Act, 2016 which reads RCA No.3/2020 Smt. Manju Gupta & Anr. Vs. M/s Parsvnath Developers Ltd. Page No.6 of 14 as under:-
"(zj) "project" means the real estate project as defined in clause (zn);
XXXXX (zn) "real estate project" means the development of a building or a building consisting of apartments, or converting an existing building or a part thereof into apartments, or the development of land into plots or apartment, as the case may be, for the purpose of selling all or some of the said apartments or plots or building, as the case may be, and includes the common areas, the development works, all improvements and structures thereon, and all easement, rights and appurtenances belonging thereto".
13. It is contended that for the applicability of Section 2 (zj) and (zn) of the Real Estate (Regulation and Development) Act, 2016 there must exist a real estate project. Section 2 (zn) clearly states "developments of land into plot or apartment" for the purpose of selling is a real estate project. Hence, the said contention of the appellant is also of no avail.
14. Further, this court will delve into the contention of the appellant that Section 31 of the Real Estate (Regulation and Development) Act, 2016 is not applicable as the same can only be filed for contraventions of the provisions of the Act and is not applicable to the present case.
15. Section 31 of the Real Estate (Regulation and Development) Act, 2016 reads as under:-
"31. (1) Any aggrieved person may file a complaint with the Authority or the adjudicating officer, as the case may be, for any violation or contravention of the provisions of this Act or the rules and regulations made thereunder against any promoter allottee or real estate agent, as the case may be.
Explanation.--For the purpose of this sub-section "person" shall include the association of allottees or any voluntary consumer RCA No.3/2020 Smt. Manju Gupta & Anr. Vs. M/s Parsvnath Developers Ltd. Page No.7 of 14 association registered under any law for the time being in force. (2) The form, manner and fees for filing complaint under sub-section (1) shall be such as may be specified by regulations".
16. The grievance of the appellant herein is as to the failure of the respondent to perform their duty of developing the plot and handing over the possession of the plot. Section 11 of the Real Estate (Regulation and Development) Act, 2016 stipulates function and duties of promoters, Section 12 of the Real Estate (Regulation and Development) Act, 2016 stipulates obligations of promoter regarding veracity of the advertisement or prospectus, Section 13 of the Real Estate (Regulation and Development) Act, 2016 provides that no deposit or advance to be taken by the promoter without first entering into agreement for sale, Section 14 of the Real Estate (Regulation and Development) Act, 2016 states as to adherence to sanctioned plan and project specification by the promoter, and Section 18 of the Real Estate (Regulation and Development) Act, 2016 states as to the return of amount and compensation if the promoter fails to complete or is unable to give possession of apartment, plot or building. This court is of the considered view that the appellant herein has remedy under Section 31 of the Real Estate (Regulation and Development) Act, 2016 so as to contend that the respondents acted contrary to Section 11, 12, 13, 14 and 18 of the Real Estate (Regulation and Development) Act, 2016. The appellant herein has rights under Section 19 of the Real Estate (Regulation and Development) Act, 2016 to claim the relief in the suit before the Authority established under the Real Estate (Regulation and Development) Act, 2016. Section 32 of the Real Estate (Regulation and Development) Act, 2016 provides for the exempted projects from the Act and apart from the same the Act is applicable to all the real estate projects. In the RCA No.3/2020 Smt. Manju Gupta & Anr. Vs. M/s Parsvnath Developers Ltd. Page No.8 of 14 present case the plot was booked and is a real estate project covered under the Real Estate (Regulation and Development) Act, 2016.
17. The Real Estate (Regulation and Development) Act, 2016 is a special legislation which bars the jurisdiction of the civil court under Section 79 of the Real Estate (Regulation and Development) Act, 2016. Section 79 of the Real Estate (Regulation and Development) Act, 2016 reads as under:-
"69. (1) Where an Offence under this Act has been committed by a company, every person who, at the time, the offence was committed was in charge of, or was responsible to the company for the conduct of, the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section, shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company, and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.--For the purpose of this section,--
(a) ''company'' means any body corporate and includes a firm, or other association of individuals; and
(b) ''director'' in releation to a firm, means a partner in the firm".
18. In judgment "Imperia Structures Ltd. Vs. Anil Patni & Anr.", RCA No.3/2020 Smt. Manju Gupta & Anr. Vs. M/s Parsvnath Developers Ltd. Page No.9 of 14 (2020) 10 SCC 783, the Apex Court observed in paragraph 26 and 27 as under:-
"26. 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.
27. 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".
19. In judgment "Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors.", (2021) 3 SCC 241, the Apex Court observed in paragraph 42 as under:-
"42. In a recent judgment delivered by this Court in Imperia Structures Ltd. Vs. Anil Patni, it was held that remedies under the Consumer Protection Act were in addition to the remedies available under specials statutes. The absence of a bar under Section 79 of the RERA Act to the initiation of proceedings before a fora which is not a civil court, read with Section 88 of the RERA Act makes the position clear. Section 18 of the RERA Act specifies that the remedies are "without prejudice to any other remedy available". We place reliance on this judgment, wherein it has been held that: (SCC p.811, paras 31-32).
"31. 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 RCA No.3/2020 Smt. Manju Gupta & Anr. Vs. M/s Parsvnath Developers Ltd. Page No.10 of 14 an appropriate application before the adjudicating officer under the RERA Act. The proviso thus gives a right or an option to the complainant concerned 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 the mandate in Section 12(4) of the CP Act to the contrary is quite significant.
32. 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 the 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".
20. The plea of the appellant that his case is outside the scope of "to determine" is without any merit as Section 79 of the Real Estate (Regulation and Development) Act, 2016 clearly stipulates that no civil court has jurisdiction to entertain any suit or proceedings in respect of any matter which the authority or the adjudicating officer or the Appellate Tribunal is empowered to determine....in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. Under Section 19 of the Real Estate (Regulation and Development) Act, 2016 the appellant has right to claim the relief claimed in the suit before the authority under the Real Estate (Regulation and Development) Act, 2016. Further, the contention of the appellant as to Section 88 of the Real Estate (Regulation and Development) Act, 2016 not being appreciated by the Trial Court is to RCA No.3/2020 Smt. Manju Gupta & Anr. Vs. M/s Parsvnath Developers Ltd. Page No.11 of 14 be considered. Section 88 of the Real Estate (Regulation and Development) Act, 2016 reads as under:
"88. 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".
21. This court is of the view that the usage of the word "other laws"
under Section 88 of the Real Estate (Regulation and Development) Act, 2016 is for the Consumer Protection Act and cannot be read in isolation and has to be read with Section 79 of the Real Estate (Regulation and Development) Act, 2016, which clearly bars the jurisdiction of the civil court.
22. The appellant has relied on paragraph 25 of "Pioneer Urban Land and Infrastructure Ltd. & Anr. Vs. Union of India & Ors.", (2019) 8 SCC 416 wherein it is stated that the fact RERA is in addition to and not in derogation of the provisions of any other law for the time being in force, also makes it clear that the remedies under the Real Estate (Regulation and Development) Act, 2016 to allottees were intended to be additional and not exclusive remedies. This court is of the view that the said observation of the Apex Court is qua Consumer Court and not with respect to the Civil Court.
23. The appellant further relied upon the judgment of "Ganga Ram Hospital Trust Vs. MCD", 92 (2001) DLT 775 (DB) and read paragraph 21 of the same which stipulates that, "an important question which needs to be considered in this connection is whether the statutory remedy is adequate and equally efficacious or it is too onerous. Even when a statutory remedy is adequate it may turn out to be highly onerous and it may be impossible for an aggrieved party to avail of the same. Often the statutory remedies are saddled with a condition that before the remedy can be availed of the aggrieved RCA No.3/2020 Smt. Manju Gupta & Anr. Vs. M/s Parsvnath Developers Ltd. Page No.12 of 14 party has to deposit the amount in dispute with the Appellate Tribunal or elsewhere as the case may be.
24. The said citation is qua the applicability of the Delhi Municipal Corporation Act and parallel remedy of filing of civil suit available under the said Act, and hence not applicable to the present case.
25. The appellant further relied on "Manish Kumar Vs. Union of India", 2021 SCC Online SC 30, paragraph 233 of the same which stipulates that, "the operational debtor, is concerned with the payment of the amount due to it for the goods and services supplied. When an allottee invests money in a real estate project, his primary and principal concern is that the project is completed and he gets possession of the apartment or the flat. The problem really arises as there are many stakeholders whose interests are affected. It cannot be in dispute that under the law, an allottee can seek remedies under the RERA. An allottee can also seeks remedies under the Consumer Protection Act or even file a suit". It is pertinent to mention that the said citation is qua the challenge to the validity of Proviso to Section 7(1) of the Real Estate (Regulation and Development) Act, 2016 and Section 79 of the Real Estate (Regulation and Development) Act, 2016 which expressly bars the jurisdiction of the civil court was not an issue in the said case. It is pertinent to mention that in the afore noted observation the Apex Court called the person an allottee who invest money in a real estate project and his primary concern is that the project is completed and he gets the possession. Thus, this judgment reflects that the person who books a plot and is waiting for possession is an allottee.
26. The judgments cited by the appellant during the course of the arguments are taken note of. On perusal of the written submissions filed by the appellant it is seen that the appellant has cited many more RCA No.3/2020 Smt. Manju Gupta & Anr. Vs. M/s Parsvnath Developers Ltd. Page No.13 of 14 judgments without mentioning the relevant observation of the judgments applicable in the present case. Hence, this court does not deem it appropriate to delve into the same.
27. In view of the aforesaid, this court upheld the order dated 13.02.2020 of the ld. Civil Judge and appeal is accordingly dismissed. The Trial Court Record be sent back to the concerned court with a copy of the judgment. Appeal stands disposed off and appeal file be consigned to the Record Room after due compliance.
ANNOUNCED IN THE OPEN COURT ON 12.10.2021 (SHREYA ARORA MEHTA) ADDITIONAL SENIOR CIVIL JUDGE, PATIALA HOUSE COURTS, NEW DELHII RCA No.3/2020 Smt. Manju Gupta & Anr. Vs. M/s Parsvnath Developers Ltd. Page No.14 of 14