M/S IREO PRIVATE LIMITED versus ALOKE ANAND AND OTHERS

Citation: [2022] 2 S.C.R. 411 · Decided: 21-01-2022 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Dismissed

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Judgment (excerpt)

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[2022] 2 S.C.R. 411
411
M/S IREO PRIVATE LIMITED
v.
ALOKE ANAND AND OTHERS
(Civil Appeal No 180 of 2022)
JANUARY 21, 2022
[DR. DHANANJAYA Y CHANDRACHUD AND
BELA M TRIVEDI, JJ.]
Consumer Protection Act, 1986: Housing – Apartment Buyers
Agreement – Apartment not handed over in time by developer –
Allottee filed consumer complaint seeking a direction to the developer
to provide the apartment, compliant with all the requirements
mentioned in the ABA, within six months of the complaint, i.e., by 3
November 2017 – Along with this, the allottee sought compensation
for delayed possession, calculated at the rate of 18 per cent p.a. on
the amount deposited with the developer from the date on which
actual possession was to be delivered (March 2015) and in case
developer failed to deliver the possession of the apartment within
six months, refund of the principal amount of Rs 2,23,91,480, with
interest at 18 per cent p.a. from the date the amount was paid by the
allottee to the developer– Inspite of interim direction of NCDRC to
handover possession, the same was not given – On 17 May 2018,
allottee filed IA bringing on record several photographs showing
that the apartment was not ready and was not in a habitable
condition – On 25 September 2018, developer sent email that due
to limited work force, the finishing work was slow – By impugned
judgment, the NCDRC held that the developer did not contest that
an amount of Rs 2,23,91,480 was paid by the allottee – It then
noted that the allottee would be considered as a consumer within
the meaning of s.2(1)(d) of the Act since the developer had not
brought on record anything to prove that the allottee was indulging
in the business of buying/selling apartments – NCDRC ordered a
refund of Rs 2,23,91,480 with simple interest at the rate of 10.25
per cent per annum, which it noted was the rate of interest payable
under the Real Estate (Regulation and Development) Act 2016 in
Haryana in respect of cases where refund is made to flat buyers
due to the delay of the developer in handing over possession –
Hence instant appeal – Held: It is apparent that the developer was
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412
SUPREME COURT REPORTS
[2022] 2 S.C.R.
not in a position to comply with the interim order of the NCDRC for
the handing over of possession – Though the interim direction was
issued on 16 February 2018, the email of the developer dated 25
September 2018 indicated that possession could not be handed over
due to the absence of an adequate work force at the site – Thus, it
is evident that the developer was not in a position to hand over
possession of the apartment even after the interim order – In this
backdrop, the order of the NCDRC for the grant of refund at the
appropriate rate of interest cannot be faulted – In another set of
appeals, the finding of fact recorded by the NCDRC in its impugned
judgment dated 22 November 2021 was that the amenities which
were promised by the developerwere not provided in the Project
and the apartment – In view of the matter, the direction for the refund
of the amount paid together with interest, cannot be faulted – The
developer made a solemn representation to the flat buyer of the
amenities which would be provided in the flat and the Project – A
breach of this representation is actionable at law.
Dismissing the appeals, the Court
HELD: 1. In the present case, since the Fire NOC was
only granted on 25 September 2013, the period for delivery of
possession of the apartment (the forty-two months period, along
with the 180 days’ grace period) would end on 24 September
2017. The appellant issued a notice of possession to the first
respondent on 25 September 2017. However, even if this
submission of the appellant is accepted, it is apparent that the
appellant was not in a position to comply with the interim order
of the NCDRC for the handing over of possession. Though the
interim direction was issued on 16 February 2018, the email of
the appellant dated 25 September 2018 indicates that possession
could not be handed over due to the absence of an adequate work
force at the site. Thus, it is evident that the appellant was not in
a position to hand over possession of the apartment even after
the interim order. In this backdrop, the order of the NCDRC for
the grant of refund at the appropriate rate of interest cannot be
faulted. [Paras 20, 21][423-G-H; 424-A-C]
IREO Grace Realtech Private Limitedv.Abhishek
Khanna and Others (2021) 3 SCC 241 – distinguished.
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