The Supreme Court has said that a homebuyer can seek
adjudication of his claim for compensation for the delay in delivery of the
flat even after getting its possession.
The apex court set aside a 2016 order of the
National Consumer Disputes Redressal Commission (NCDRC), which said that the
appellant was not a consumer at the time of filing his complaint alleging a
deficiency in service on account of the delay in handing over the possession of
the flat, since he had already taken its possession without protest.
A bench of Justices Vikram Nath and V Mohana passed
the order on a plea by a homebuyer, who became a member of a cooperative group
housing society in Delhi in January 2003 and was allotted a flat, challenging
the NCDRC's order.
The top court observed that a claim for compensation
for delayed possession necessarily arises from the period prior to the actual
delivery of possession.
"The subsequent receipt of possession cannot,
by itself, extinguish the right of the allottee to seek adjudication of a claim
for compensation for the alleged delay," the bench said in its June 4
order.
The appellant had instituted a consumer complaint
before the district consumer forum, alleging a deficiency in service on account
of the delay in handing over possession of the flat.
In July 2009, the district forum referred the
parties to arbitration and that order was affirmed by the Delhi State Consumer
Disputes Redressal Commission in February 2013.
The appellant then approached the NCDRC, which
dismissed his revision petition in January 2016.
The apex court noted that the consumer complaint
filed before the district forum was admitted and notice was issued to the
society, which later filed an application seeking reference of the dispute to
arbitration.
The appellant argued before the apex court that the
consumer complaint could not have been referred to arbitration merely on the
basis of an arbitration clause in the agreement between the parties.
Dealing with the appeal, the bench referred to the
Consumer Protection Act, 1986 and said it is a beneficial legislation intended
to provide a simple, inexpensive and expeditious remedy to a consumer who
complains of a defect in goods or deficiency in service.
It said Section 3 of the Act provides that the
remedy under this legislation was in addition to and not in derogation of any
other remedy available under the law.
"The existence of another forum or another mode
of adjudication, therefore, does not by itself exclude the jurisdiction of the
consumer fora," it said.
The bench said the fact that the agreement between
the parties contained an arbitration clause could not, by itself, be treated as
sufficient to non-suit the appellant before the consumer forum.
It said the NCDRC's order suffered from an
"additional infirmity".
"The principal issue before the National
Commission was whether the district forum and the state commission were
justified in referring the complaint to arbitration. The National Commission, however,
dismissed the revision petition on the ground that the appellant was not a
consumer at the time of filing of the complaint, since he had already taken
possession of the flat without protest," the bench noted.
It said in doing so, the NCDRC failed to address the
central jurisdictional question arising from the orders passed by the district
forum and state commission.
The bench said the reasoning adopted by the NCDRC
cannot be sustained.
It said the appellant's complaint was not for
delivery of possession simpliciter and his grievance was that there was a delay
in handing over possession of the flat and he was entitled to compensation for
such delay.
The bench said whether there was any delay, whether
such delay was attributable to the society and whether the appellant had
accepted possession unconditionally, were matters which required adjudication
on merits.