Judges Name: Hon’ble Judges Uday Umesh Lalit J and Vineet Saran J

Order dated: 02.11.2020 

Facts of the Case:

• The appeals under Section 23 of the Consumer Protection Act, 1986 are directed against the common judgement and order dated 12.09.2018 passed by the National Consumer Disputes Redressal Commission, New Delhi (“Commission”) in Consumer Case Nos.3011, 3012, 3013, 3014, 3015, 3016, 3017, 3018, 3019 and 3020 of 2017.
• A Housing Scheme called “The ESFERA” in Sector 13C, Gurgaon, Haryana (hereinafter referred to as ‘the Project’) was launched by the Appellant sometime in 2011 and all the original 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.
• The Respondents booked Apartment No.1803 on the 18th Floor of Tower No. “C” having super built up area 153.34 Sq. meters (1650 Sq. feet approx.) @ Rs.36530.2 per Sq. meter (Rs.3395/- per Sq. foot). The basic price was thus Rs.56,01,750/- to which additional charges such as preferential location charges for “corner” “park facing” and for “higher floor” as well as charges for reserve parking, club membership and development were added; the aggregate price being Rs.76,43,000/-.
• Clauses 11.1 and 11.2 of the Agreement dated 30.11.2013 entered into by the Respondents dealt with “delay due to reasons beyond the control of the Developer/Company” and “failure to deliver possession due to Government Rules, Orders, Notifications, etc.”
• Over a period of time the Respondents had paid Rs.63,53,625/- out of the agreed sum of Rs.76,43,000/-. However, even after four years there were no signs of the Project getting completed. In the circumstances Consumer Case No.3011 of 2017 was preferred by the Respondents on 11.10.2017 before the Commission. In its response to the aforesaid Consumer Case, the Appellant challenged the jurisdiction of the Commission inter alia, on the ground that the apartment having been booked for commercial purposes, the Respondents would not come within the definition of “the consumer” under Section 2(d) of the CP Act. No reference was however made to the fact that the Project had been registered under the RERA Act. 
• Consumer Case No.3011 of 2017 was allowed by the Commission by its judgement and order dated 12.09.2018. It was observed that that the Developer has not filed any evidence to support his contention that the delay occurred due to force majeure events. Therefore, the commission concluded that the Appellant was deficient in rendering service, the Commission granted relief to the Respondents. All other complaints were allowed by the Commission granting relief of refund of the amounts deposited by each of the Complainants with simple interest @ 9% per annum from the respective dates of deposits alongwith Rs.50,000/- towards costs. It was also directed that the amounts be deposited within four weeks, failing which the amounts would carry interest @ 12% per annum. The Appellant being aggrieved preferred the instant appeals on 14.03.2019.

Supreme Court held:

• The Supreme Court held that remedies available to the consumers under the provision of the CP Act are in addition to the remedies available to the consumers under any special statutes.  The Court further held that alternate remedy is no bar in entertaining a complaint under the CP Act.
• Further, the Supreme court observed that while, the 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, however under Section 88 it is specified that the provisions of the RERA Act would be in addition to and not in derogation of the provisions of any other law. The Court observed the decision in Malay Kumar Ganguli vs. Dr. Sukumar Mukherjee, wherein it was 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 yet it cannot be called a civil court”.
• Therefore, the Supreme Court held that Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the Consumer Protection Act to entertain any complaint.
• The Court observed that 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.
• The Supreme Court observed the Consumer Protection Act, 2019 and the objects and reasons of the 2019 Act and the definitions of terms as provided under the 2019 Act that is Sections 2(7), 2(33), 2(37), and 2(42) which define expressions “Consumer”, “Product”, “Product Seller” and “Service” respectively. Sections 85 and 86 deal with liability of “Product Service Provider” and “Product Seller”.  
• Thus, the Supreme Court held that the proceedings initiated by the complainants in the present cases and the resultant actions including the orders passed by the Commission are fully saved and resultantly, the appeals were dismissed by the Court by affirming the view of the Commission.