Experion Developers Pvt ltd v. Sushma Ashok Shiroor

Case snapshot

Sections / provisions: Consumer Protection Act 1986 and Haryana Real Estate Regulation Act

Questions before the Court / Tribunal

• Experion Developers Pvt ltd Vs Sushma Ashok Shiroor (Supreme Court) Date-7th April,2022 Sub-Delay in handing over possession, remedy available to the Consumer under Consumer Protection Act and Real Estate Regular Act run parallel, One sided clauses in Agreement amounts to Unfair trade practice and cannot govern the refund mechanism , refund with 9% interest from the date of deposit allowed. Consumer is the king, it seems upon reading the judgement when three judges bench of Supreme Court in this case was considering delay in handing over possession in respect of Windchants in Sector 112, Gurgaon Haryana and the flat buyer approached Consumer forum to claim refund of the money paid with 24% interest. The Ld Judges followed Pioneer Urban Land and Infrastructure Ltd. v. Govindan Raghvan (2019) 5 SCC 725, IREO Grace Realtech (P) Ltd. v. Abhishek Khanna & Ors. (2021) 3 SCC 241 and DLF Home…
• Which factual, statutory and procedural conditions controlled the requested relief?
• How did the forum apply the governing provisions to the evidence and procedural history recorded in this case?

Material facts and procedural background

1. These appeals under Section 23 of the Consumer Protection Act, 1986 1, arise out of the judgment dated 19.06.2019 passed by the National Consumer Disputes Redressal Commission2. The Commission directed the Appellant - Developer to refund an amount of Rs. 2,06,41,379 with interest @ 9% p.a. to the Respondent-Consumer3 for its failure to deliver possession of the apartment within the time stipulated as per the Apartment Buyers Agreement. In these

2. The brief facts of the case are that the Developer, M/s Experion Developers Private Ltd., is the promoter of apartment units, Windchants, in Sector 112, Gurgaon, Haryana. The Consumer booked an apartment measuring 3525 sq. ft. for a total consideration of Rs. 2,36,15,726/ - in the Windchants and agreed for construction linked payment plan, which led to the execution of the Apartment Buyer’s Agreement dated 26.12.2012. As per Clause 10.1 of the Agreement, possession was to be given within 42 months from the date of approval of the building plan or the date of receipt of the approval of the Ministry of Environment and Forests, Government of India for the Project or date of the execution of the agreement whichever is later.

3.1 The Consumer approached the National Disputes Redressal Com mission by filing an original complaint being, Consumer Case No. 2648/2017, alleging that he has paid a total consideration of Rs. 2,06,41,379/- and possession was not granted even till the filing of the complaint. He, therefore, sought a refund of Rs. 2,06,41,379/- along with interest @ 24% p.a. 3.2 The Developer filed its Written Statement before the Commission stating that though the 42 months period expires on 26-6-20164, the purchaser will only be entitled to delay compensation under Clause 13, for a sum of Rs. 4,54,052/-. Justification for the delay is given by pleading that the Occupation Certificate for Phase-I of the project had already been obtained on 06.12.2017, and application for Occupation Certificate for Phase-2, had already been made. In the affidavit of evidence, the Developer contended that it secured the Occupation Certificate on 23.07.2018 and a notice of possession was issued to the Consumer on 24.07.2018. It was claimed that since possession can be handed over, the complaint must be dismissed. 4. The Commission, in its judgment dated 19.06.2019, allowed the complaint after referring to Clause 10 (relating to the project completion period), Clause 11 (relating to the possession and conveyance of the apartment), as well as Clause 13 (relating to delay in possession). The Commission found that the agreement

is one -sided, heavily loaded against the allottee and entirely in favour of the Developers. Following the decisions of this Court in Pioneer Urban Land and Infrastructure Ltd. v. Govi nd Raghvan,5 (“Pioneer”), the Commission directed the Developer to refund the amount of Rs.2,36,15,726/- with interest @ 9% p.a. 5.1 It is against these findings and the consequential directions of the Commission that the Developer filed the present Civi l Appeal No. 6044/2019. The Consumer also filed an appeal being Civil Appeal No. 7149/2019, challenging the Commission's judgment to a limited extent for grant of an enhanced interest @ 24% p.a. 5.2 Assailing the judgment of the Commission, Shri Gagan Gupt a, on behalf of the Developer submitted that the decision of this Court in Pioneer has no application to the facts of the present case, as in Pioneer, the Court did not have to deal with Delay Compensation Clause like in the present case. Terms of the Apartment Buyer’s Agreement alone, according to him, would govern the relations between the parties. He argued that no prejudice would be caused to the Consumer if he is asked to take possession of the property. Referring to the provisions of the Real Esta te (Regulation and Development) Act, 2016 6 and particularly to the Regulations made by Haryana Real Estate Regulatory Authority, which were relied on in Pioneer case, he submitted that the Consumer

has elected to proceed under the Consumer Protection Act, 1986 and therefore the provisions of RERA Act will not apply and the Pioneer cannot be followed as a precedent. In the alternative, he argued that the interest granted by the Commission is excessive in both the period of the grant and the rate of interest. 5.3 Shri Jitendra Chaudhary, learned counsel on behalf of the Consumer, supported the decision of the Commission on all counts and also relied on the judgment of this Court in Pioneer. In his appeal, he argued that the rate of interest granted by the Commission is far too low and urged for enhancement of the rate of interest to @ 24% p.a. as demanded by her in the petition before the Commission. 6. Having heard the parties the following issues arise for consideration: I. Whether the terms of the Apartmen t Buyers Agreement amount to an ‘unfair trade practice’ and whether the Commission is justified in not giving effect to the terms of Apartment Buyer’s Agreement as laid down in the Pioneer case? II. Whether the Commission has the power under the Consumer Protection Act, 1986 to direct refund of the amount deposited by the Consumer with interest? III. Whether the relief granted by the Commission require any modification to serve ends of justice?

Appellant / petitioner / assessee submissions

13,370.00 Nil/NA 13,370.00 TOTAL: Rs. 2,06,41,379/- (Rupees Two Crore Six Lacs Forty One Thousand Three Hundred and Seventy Nine Only) 21. On the other hand, the Appellant -Developer submitted that (i) period for interest should be linked to the estimated date of possession and not the date of

Revenue / respondent submissions

The judgment does not separately label the respondent’s submissions in an independently extractable passage. No contention is inferred; read the full record.

Court / Tribunal analysis and reasoning

V. Abhishek Khanna10 noticed the delay compensation clause, which is similar to the clause in the present case, which provided that the Developer would be liable to pay delay compensation @ Rs 7.5 per square foot which works out to approximately 0.9 to 1% p.a. The Court held that this Clause is one -sided and entirely loaded in favour of the Developer and agai nst the allottee. The Court concluded that the powers of the Consumer Court were in no manner constrained to declare a contractual term as unfair and one-sided as an incident of the power to discontinue unfair or restrictive trade practices. It was held: “34. We are of the view that the incorporation of such one-sided and unreasonable clauses in the apartment buyer’s Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act.

24. Before we consider whether the provisions of the RERA Act have made any change in the legal position stated in the preceding paragraph, we may note that an allottee placed in circumstances similar to that of the Complainants, could have initiated the 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.

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. 30. On the strength of the law so declared, 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. 34. It is true 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 ent rusted to functionaries under the RERA Act.

Merely because the registration under the RERA Act is valid till 31.12.2020 does not mean that the entitlement of the allottees concerned 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. Condition (x) of the letter dated 17.11.2017 also entitles an allottee in same fashion. Therefore, the entitlement of the Complainants must be considered in the light of the terms of the builder buyer agreements and was rightly dealt with by the Commission”. 13.1 In view of the clear and categorical principles laid down in Imperia, the submissions made on behalf of the Developer have to be rejected.

Therefore, the need for regulating the sector has been emphasized in various forums. In view of the above, it becomes necessary to have a Central legislation, namely, the Real Estate (Regulation and Development) Bill, 2013 in the interests of effective consumer protection, uniformity and standardization of business practices and the transactions in the real estate sector. The proposed Bill provides for the establishment of the Real Estate Regulatory Authority (the Authority) for regulation and promotion of real estate sector and to ensure sale of plot, apartment or building, as the case may be, in an efficient and transparent manner and to protect the interest of consumers in real estate sector and establish the Real Estate Appellate Tribunal to hear appeals from the decisions, directions or orders of the Authority.

Therefore, while interpreting statutes provisioning plurality of remedies, it is necessary for Courts to harmonise the

Operative decision and relief

payments and (ii) the rate of interest must be the rate provided in the Interest Act, 1978. 22.1 We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts. The Commission in the order impugned has granted interest from the dat e of last deposit. We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt Ltd v. DS Dhanda16 and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be paya ble from the dates of deposit. Therefore, the appeal filed by purchaser deserves to be partly allowed. The interests shall be payable from the dates of such deposits. 22.2 At the same time, we are of the opinion that the interest of 9 per cent granted by the Commission is fair and just and we find no reason to interfere in the appeal filed by the Consumer for enhancement of interest. 23. We were informed that the Appellant-Developer deposited a sum of Rs. 50,000/- in the registry of this Court as per proviso to Section 23 of the Act. This amount shall be made over to the Respondent -Consumer, to be adjusted against the final amount payable by the Developer to the Consumer.

24. In view of the above, the Civil Appeal No. 6044 of 2019 filed by the Appellant Developer is dismissed and the appeal filed by the Consumer being Civil Appeal No.7149 of 2019 is allowed in part as indicated above. 25. Parties shall bear their own costs.

Ratio and legal principle

The narrow proposition associated with Experion Developers Pvt ltd v. Sushma Ashok Shiroor concerns experion developers pvt ltd vs sushma ashok shiroor (supreme court) date-7th april,2022 sub-delay in handing over possession, remedy available to the consumer under consumer protection act and real estate regular act run parallel, one sided clauses in agreement amounts to unfair trade practice and cannot govern the refund mechanism , refund with 9% interest from the date of deposit allowed. consumer is the king, it seems upon reading the judgement when three judges bench of supreme court in this case was considering delay in handing over possession in respect of windchants in sector 112, gurgaon haryana and the flat buyer approached consumer forum to claim refund of the money paid with 24% interest. the ld judges followed pioneer urban land and infrastructure ltd. v. govindan raghvan (2019) 5 scc 725, ireo grace realtech (p) ltd. v. abhishek khanna & ors. (2021) 3 scc 241 and dlf home… The proposition cannot be separated from the judgment’s facts, the governing statutory version, the forum’s jurisdiction, and the exact relief recorded in CIVIL APPEAL NO. 6044 of 2019.

For working-paper purposes, the decision should be cited only after matching the material facts and reading the passages under the judgment-grounded record above. The editorial outcome label “Dismissed” is a navigation aid; it does not replace the operative order or explain every issue in a multi-issue case.

Why this judgment matters

This decision is relevant when a file raises the same central question identified in the source headnote: Experion Developers Pvt ltd Vs Sushma Ashok Shiroor (Supreme Court) Date-7th April,2022 Sub-Delay in handing over possession, remedy available to the Consumer under Consumer Protection Act and Real Estate Regular Act run parallel, One sided clauses in Agreement amounts to Unfair trade practice and cannot govern the refund mechanism , refund with 9% interest from the date of deposit allowed. Consumer is the king, it seems upon reading the judgement when three judges bench of Supreme Court in this case was considering delay in handing over possession in respect of Windchants in Sector 112, Gurgaon Haryana and the flat buyer approached Consumer forum to claim refund of the money paid with 24% interest. The Ld Judges followed Pioneer Urban Land and Infrastructure Ltd. v. Govindan Raghvan (2019) 5 SCC 725, IREO Grace Realtech (P) Ltd. v. Abhishek Khanna & Ors. (2021) 3 SCC 241 and DLF Home… Its practical value lies in the way the Supreme Court of India connected the governing provisions—Consumer Protection Act 1986 and Haryana Real Estate Regulation Act—to the procedural posture and evidence before it.

The authority level is Supreme Court. That affects persuasive or binding weight, but authority level alone is never enough. Territorial jurisdiction, statutory period, the identity of the challenged order, and later appellate treatment must all be checked before the case is used in advice, a submission, or litigation strategy.

Practitioner action points

• Begin with the complete judgment and mark the paragraphs supporting the exact proposition relied upon.
• Match the statutory version of Consumer Protection Act 1986 and Haryana Real Estate Regulation Act and the decision date 2022-04-07; do not assume the current text is identical.
• Compare the notice, assessment, appeal or other procedural sequence with the chronology recorded in this case.
• Verify the stated later-history status and any review, appeal, SLP, curative or rectification proceedings before citation.
• Record why the client’s evidence is materially similar, and also record any fact capable of distinguishing the result.

Does this case match your facts?

Detailed reliance and distinction analysis

Identity check. Confirm that the cited cause title is Experion Developers Pvt ltd v. Sushma Ashok Shiroor, the proceeding is CIVIL APPEAL NO. 6044 of 2019, and the decision is dated 2022-04-07. These fields are taken from the judgment record and should appear exactly in the citation note.

Bench check. The judgment identifies the coram as Pamidighantam Sri Narasimha, J. (authoring judge identified in judgment). A later order by another bench, a larger bench, or a higher forum may alter the weight or interpretation of the proposition.

Provision check. The source associates the dispute with Consumer Protection Act 1986 and Haryana Real Estate Regulation Act. The practitioner should place the historical statutory text next to the current text and identify every amendment, proviso, explanation, rule or notification that could change the analysis.

Fact check. The source issue is not a free-standing abstract rule. It arises from the concrete record summarized above. A reliable application note should list the common facts, the different facts, and whether each difference affects jurisdiction, admissibility, limitation, burden, computation or relief.

Remedy check. The recorded result is Dismissed. Where a matter is remanded, set aside, partly allowed, or disposed with directions, the exact operative language is more important than a binary winner/loser label.

History check. The current closure state is REVIEW_CURATIVE_DOCKET_CHECK_PENDING. If that state is pending, the page does not assert that no later case exists. It means the check remains open and must be completed at the point of professional reliance.

Section / provision impact

• Consumer Protection Act 1986 and Haryana Real Estate Regulation Act — apply the exact version considered in the judgment.

Case network

• CCE Aurangabad Vs Videocon Industries Limited — Supreme Court of India · Dismissed
• Pr. CIT (Central)-1 v. Surendra L. Hiranandani — Bombay High Court · Dismissed
• Anil Ramchandran Pillai v. NFAC — Bombay High Court · Dismissed
• Assistant Director, Directorate of Enforcement v. Kamal Ahsan — Supreme Court · Dismissed

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