EXPERION DEVELOPERS PVT. LTD versus SUSHMA ASHOK SHIROOR

Citation: [2022] 5 S.C.R. 590 · Decided: 07-04-2022 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Disposed off

Cited by 2 judgment(s) · cites 4 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 5 S.C.R.
[2022] 5 S.C.R. 590
590
EXPERION DEVELOPERS PVT. LTD.
v.
SUSHMA ASHOK SHIROOR
(Civil Appeal No. 6044 of 2019)
APRIL 07, 2022
[UDAY UMESH LALIT, S. RAVINDRA BHAT AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Consumer Protection Act, 1986 – ss. 23, 14 – Failure on part
of developer to deliver possession of apartment to the consumer
within the time stipulated as per the Apartment Buyers Agreement –
The consumer, against such failure, approached the National
Consumer Disputes Redressal Commission – Commission directed
the developer to refund purchase amount interest @ 9% p.a. to the
Consumer – Aggrieved developer filed instant appeal – Held: The
Commission created under the Consumer Protection Act has the
power to direct refund of the purchase amount along with interest
under s.14 of the Act and was right in holding that the clauses of
the agreement are one-sided and that the Consumer is not bound to
accept the possession of the apartment and can seek refund of the
amount deposited by her with interest – Further the Apartment
Buyer’s Agreement which are found to be one-sided are oppressive,
constituting unfair trade practice and such terms of the Agreement
cannot be enforced – Order of Commission upheld – Real Estate
(Regulation and Development) Act, 2016 – s.18 – Contract – One
sided contract.
Consumer Protection Act, 1986 – Real Estate (Regulation and
Development) Act, 2016 – Harmonious Construction – The
Consumer Protection Act and the Real Estate (Regulation and
Development) Act neither exclude nor contradict each other and
they must be read harmoniously to subserve their common purpose
and hence one Act does not bar the remedy available under the
other Act – When Statutes provide more than one judicial fora for
effectuating a right or to enforce a duty-obligation, it is a feature
of remedial choices offered by the State for an effective access to
justice and hence there has to be a harmonious construction of
statutes provisioning plurality of remedies – Interpretation of statutes.
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Consumer Protection Act, 1986: s.14 – Power under, scope –
Power to direct refund of the amount and to compensate a consumer
for the deficiency in not delivering the apartment as per the terms
of Agreement is within the jurisdiction of the Consumer Courts –
Under s.14 of the Act, if the Commission is satisfied that any of the
allegations contained in the complaint about the services are proved,
it shall issue an order to the opposite party directing him to, return
to the complainant the price or as the case may be, the charges
paid by the complainant – ‘Deficiency’ is defined under s.2(g) to
include any shortcoming or inadequacy in performance which has
been undertaken by a person in pursuance of a contract or
otherwise relating to any service – Therefore Commission is
empowered to direct refund of the price or the charges paid by the
consumer
Dismissing the appeal filed by the Developer and partly
allowing the appeal filed by the Consumer, the Court
HELD: 1. On the question of reckoning the date for handing
over of possession of the apartment, the Commission recorded
the fact admitted by the Developer in Para 2 of its reply that “the
trigger date for clause 10.1 is 26.12.2012, which is the date of
execution of the apartment buyer’s agreement”. The Commission
calculated 42 months from this period, which turns out to be
26.06.2016. Further, adding the grace period of 180 days, the
time for delivery would expire on 26.12.2016. It is again an
admitted fact that the occupancy certificate was obtained only on
23.07.2018 and notice for possession was issued to the Consumer
on 24.07.2018. Given the factual position and having examined
the terms of the Agreement, the Commission found the judgment
of this Court in Pioneer Urban Land and Infrastructure Ltd v
Govindan Raghvan is a relevant and conclusive precedent. The
principle laid down in Pioneer’s case has been followed
consistently in many cases where the terms of the Apartment
Buyer’s Agreement were found to be one-sided and entirely
loaded in favour of the Developer, and against the allottee at every
step. Therefore the Commission was correct in its approach in
holding that the clauses of the agreement are one-sided and that
the Consumer is not bound to accept the possession of the
EXPERION DEVELOPERS PVT. LTD. v. SUSHMA ASHOK SHIROOR
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[2022] 5 S.C.R.
apartment and can seek refund of 

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