IREO GRACE REALTECH PVT. LTD. versus ABHISHEK KHANNA & OTHERS

Citation: [2021] 2 S.C.R. 1 · Decided: 11-01-2021 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Disposed off

Cited by 5 judgment(s) · cites 7 · see the full citation network in Lexace

Judgment (excerpt)

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   [2021] 2 S.C.R. 1
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IREO GRACE REALTECH PVT. LTD.
v.
ABHISHEK KHANNA & OTHERS
(Civil Appeal No. 5785 of 2019)
JANUARY 11, 2021
[DR. DHANANJAYA Y CHANDRACHUD,
INDU MALHOTRA AND INDIRA BANERJEE, JJ.]
Consumer Protection – Apartment Buyer’s Agreement – Unfair
trade practice – Oppressive and one sided contractual terms – Held:
The Developer cannot compel the apartment buyers to be bound by
the one-sided contractual terms contained in the Apartment Buyer’s
Agreement – Incorporation of one-sided and unreasonable clauses
in the Apartment Buyer’s Agreement constitutes an unfair trade
practice u/s.2(1)(r) of CP Act, 1986 – Even under the CP Act of
1986, the powers of the consumer fora were in no manner
constrained to declare a contractual term as unfair or one-sided as
an incident of the power to discontinue unfair or restrictive trade
practices – An “unfair contract” has been defined under the
Consumer Protection Act, 2019, and powers have been conferred
on the State Consumer Fora and the National Commission to declare
contractual terms which are unfair, as null and void – This is a
statutory recognition of a power which was implicit under the
Consumer Protection Act, 1986.
Consumer Protection – Applicability of provisions of
Consumer Protection Act as an additional remedy, despite existence
of remedies under special statutes – Whether primacy to be given to
RERA Act over the Consumer Protection Act – Held: Remedies under
the Consumer Protection Act are in addition to remedies available
under special statutes – Absence of a bar u/s.79 of RERA Act to
initiation of proceedings before a fora which is not a civil court,
read with s.88 of the RERA Act makes the position clear – s.18 of
the RERA Act specifies that remedies are “without prejudice to any
other remedy available” – Real Estate (Regulation & Development)
Act, 2016 (RERA Act)
Consumer Protection – Apartment Buyer’s Agreement –
Determination of the date for handing over Possession – Discussed,
with reference to the facts and circumstances of the case.
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SUPREME COURT REPORTS
[2021] 2 S.C.R.
Consumer Protection – Apartment Buyer’s Agreement –
Entitlement of the Apartment Buyers to refund of the amount deposited
with Delay Compensation – Discussed, with reference to the facts
and circumstances of the case.
Disposing of the appeals, the Court
HELD: 1.1 The first issue which has been raised by the
Appellant-Developer as also the Apartment Buyers, is the
relevant date from which the 42 months’ period is to be calculated
for handing over possession. Clause 13.3 of the Agreement states
that the Developer proposed to offer possession of the apartment
to the allottee within a period of 42 months from the date of
approval of the Building Plans and/or fulfilment of the pre-
conditions imposed thereunder, referred to as the “Commitment
Period”. The Company would be entitled to a further “Grace
Period” of 180 days’ after the expiry of the Commitment Period
for unforeseen delays beyond the reasonable control of the
Company. This would work out to 42+6 months i.e. 48 months.
[Para 18][29-C-E]
1.2 The point of controversy is whether the 42 months’
period is to be calculated from the date when the Fire NOC was
granted by the concerned authority, as contended by the
Developer; or, the date on which the Building Plans were
approved, as contended by the Apartment Buyers. Section 15
of the Haryana Fire Safety Act, 2009 makes it mandatory for a
Builder/Developer to obtain the approval of the Fire Fighting
Scheme conforming to the National Building Code of India, and
obtain a No Objection Certificate before the commencement of
construction. Clause 13.3 of the Apartment Buyer’s Agreement
provides that the 42 months’ period has to be calculated from
the date of approval of the Building Plans and/or fulfilment of the
pre-conditions imposed thereunder. The Building Plans
sanctioned by the Directorate of Town and Country Planning,
Haryana contained the Terms & Conditions of Approval, which
included a provision for Fire Safety contained in Clause (3). The
Developer was directed to submit Fire Safety Plans indicating
the complete Fire Protection Arrangements, and means of escape/
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IREO GRACE REALTECH PVT. LTD. v. ABHISHEK KHANNA
& OTHERS
access for the proposed building with suitable legend and standard
signs. On receipt of the Fire Plans, the Commissioner, Municipal
Corporation, Gurgaon, after satisfying himself with the entire fire
protection me

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