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.

M/s Imperia Structures Ltd. vs Anil Patni and another.

Civil Appeal No. 6581-3590 OF 2020

Decided On: 02.11.2020

Bench: UDAY UMESH LALIT, VINEET SARAN, JJ.

Facts: A Housing Scheme called “The ESFERA” in Sector 13C, Gurgaon, Haryana (hereinafter referred to as ‘the Project’) was launched by the Appellant sometime in the year 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 basic price of the apartments was somewhere around Rs.56,01,750/- to which some additional charges were added and thus, the aggregate price came to being Rs.76,43,000/-. 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 National Consumer Disputes Redressal Commission (hereinafter referred to as “the Commission”). After the submission of the claim before the Commission the Project was registered with Haryana Real Estate Regulatory Authority, Panchkula (hereinafter referred to as, “Haryana Authority”) on 17.11.2017.

During, the proceedings before the Commission 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 Consumer Protection Act (hereinafter referred to as, “CP Act”). No reference was however made to the fact that the Project had been registered under the RERA Act.

Thereafter, the Consumer Case No.3011 of 2017 was allowed by the Commission by its judgement and order dated 12.09.2018, concluding that the Appellant was deficient in rendering service, thereby granting relief to the Respondents. Similarly, 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 by the order dated 12.09.2018 passed by the Commission preferred appeals under Section 23 of the Consumer Protection Act, 1986 on 14.03.2019. These appeals were accordingly dismissed by the Hon’ble Apex Court affirming the view taken by the Commission.

Issues: The issues that arose before the Hon’ble Apex Court were:-

a)      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. (since, the aforesaid project came to be later registered under RERA on 17.11.2017)

b)      Whether the remedies available to the consumers under the provisions of the Consumer Protection Act, 1986 would be additional remedies over and above the other remedies including those made available under any special statutes; and

c)      Whether the availability of an alternate remedy is a bar in entertaining a complaint under the CP Act.

Judgment:

The Apex 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, thus, the issue (b) was answered in affirmative and further, it was also held by the Court that alternate remedy is no bar in entertaining a complaint under the CP Act, thus, the issue (c) was answered in negative.

Further, answering the issue (a) in negative, the Apex Court went on to observe 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, and taking into account the decision rendered 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, on the strength of the law so declared, the Apex 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 went on to further reiterate the position that since, the cases where  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 the express saving provided under Section 88 of the RERA Act, make the position quite clear. Therefore, the Apex 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.

Lastly, the Apex Court went further and took note of the Consumer Protection Act, 2019 (hereinafter referred as, “2019 Act”) 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”.  Relying upon the Sections 100 and 107 of 2019 Act, the Apex Court made the following observation that is, “Section 100 of 2019 Act is akin to Section 3 of the CP Act and Section 107 saves all actions taken or purported to have been taken under the CP Act. It is significant that Section 100 is enacted with intent to secure the remedies under 2019 Act dealing with protection of the interests of Consumers, even after the RERA Act was brought into force.”

Thus, the Apex 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.

 See Section

Section 79. Bar of jurisdiction: No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

Section 88 Application of other laws not barred: 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.