Holding

The Court held that, because the developer could not effect possession even after the NCDRC’s interim order and the possession period is deemed to commence from the fire NOC, the NCDRC’s order directing refund of the amount paid with interest at 10.25% per annum is justified and cannot be disturbed.

Summary

The developer, IREO Private Limited, was sued by apartment buyers for failing to hand over possession of their flats within the contractual period and for not providing promised amenities. The buyers sought specific performance and, alternatively, a refund of the amount paid with interest. The NCDRC ordered a refund with simple interest at 10.25% per annum, noting the developer’s inability to comply with its interim possession order and the breach of amenity representations. The developer appealed, arguing that the possession period should be calculated from the sanction of building plans, not the fire NOC, and that the refund order was unwarranted. The Supreme Court held that the developer could not fulfill the interim possession order, that the possession period is deemed to start from the grant of the fire NOC, and therefore affirmed the NCDRC’s refund order with interest.

Issues considered

The period for delivery of possession under Clause 13.3 of the Apartment Buyers Agreement should be computed from the date of fire NOC issuance or from the sanction of building plans.
Whether the developer was capable of complying with the NCDRC’s interim order to hand over possession.
Whether the NCDRC’s order directing refund of the amount paid with interest at 10.25% per annum is legally valid.
Whether the developer’s failure to provide promised amenities constitutes a breach actionable under law.
Whether the allottees qualify as consumers under the Consumer Protection Act, 1986.

Legislation cited

Consumer Protection Act, 1986s. 2(1)(d), s. 23
Haryana Fire Service Act, 2009s. 15(1)
Real Estate (Regulation and Development) Act, 2016

Subjects

consumer protectiondelayed possessionrefundinterest ratefire NOCreal estate regulationbreach of contractamenitiesallotteesNCDRCCOPA

Judgment

[2022] 2 S.C.R. 411 411

M/S IREO PRIVATE LIMITED A
v.
ALOKE ANAND AND OTHERS
(Civil Appeal No 180 of 2022)
JANUARY 21, 2022 B
[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 –
C
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 D
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
E
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 F
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
G
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 H
411
412 SUPREME COURT REPORTS [2022] 2 S.C.R.

A 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
B
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
C 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.
D
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
E 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
F 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
G 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.
H
M/S IREO PRIVATE LIMITED v. ALOKE ANAND AND OTHERS 413

2.1 In Civil Appeal No 268 of 2022, the first respondent A
was allotted an apartment in Tower D of the Project. The ABA
was signed on 6 September 2013. The appellant issued a notice
of possession on 6 September 2016. The first respondent filed
a consumer complaint before the NCDRC on 14 February 2017
seeking a refund of the amount paid with interest at 18 per cent
B
per annum or the possession of the apartment, if the appellant
was willing to complete the apartment in accordance with the
specifications in the ABA in a time bound manner and not charge
any further amount over and above the sale consideration. By
its judgment dated 22 November 2021, which takes note of the
decision of this Court in Abhishek Khanna, the NCDRC directed C
the appellant to refund the principal amount to the first
respondent with interest at the rate of 10.25 per cent per annum.
[Para 23][424-D-F]

2.2 The finding of fact which has been recorded by the
D
NCDRC in its impugned judgment dated 22 November 2021 is
that the amenities which were promised by the appellant have
not been provided in the Project and the apartment. In the course
of discussion, the NCDRC has, in fact, tabulated the amenities
which were to be but have not been provided. In this view of the
matter, the direction for the refund of the amount paid together E
with interest, cannot be faulted. The appellant 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. [Para 25][424-G-H; 425-A-B]
F
Siddharth Vasisht v. lREO Pvt. Ltd. and Ors. Consumer
Case No 1062 of 2018; Shamshul Hoda Khan v. IREO
Victory Valley Pvt. Ltd. and Anr. Consumer Case No
2110 of 2016 – referred to.

Case Law Reference G

(2021) 3 SCC 241 distinguished Para 16

H
414 SUPREME COURT REPORTS [2022] 2 S.C.R.

A CIVIL APPELLATE JURISDICTION: Civil Appeal No. 180 of
2022.
From the Judgment and Order dated 01.11.2021 of the National
Consumer Disputes Redressal Commission, New Delhi in Consumer
Complaint No.1277 of 2017.
B
With
Civil Appeal No. 268 of 2022.
Ankur Saigal, E. C. Agrawala, Advs. for the Appellant.
Ms. Nina R. Nariman, Aditya Parolia, Piyush Singh, Nithin
C
Chandaran, Akshay Srivastava, Sumbul Ismail, Rajesh Kumar, Gaurav
Goel, Vaibhav Gaggar, Ms. Sumedha Dan, Utkarss Tiwari, Pai Amit,
Advs. for the Respondents.
The Judgment of the Court was delivered by
D DR. DHANANJAYA Y CHANDRACHUD, J.
1. The appeals under Section 23 of the Consumer Protection Act
19861 arise from the decision of the National Consumer Disputes
Redressal Commission2 on complaints which were instituted against the
appellant by the allotees of its housing project called ‘SKYON’, located
E at Golf Course Extension Road in Sector 60 of Gurgaon, Haryana3. The
appellant advertised that the Project offered state of the art facilities
such as home automation devices, Wi-Fi and high-end video door security
systems in each apartment.
2. The Building Plans for the Project were approved by the
F Directorate of Town and Country Planning, Haryana4 on 27 September
2011, subject to certain terms and conditions to be fulfilled by the appellant.
Thereafter, on 31 July 2012, the State Environment Impact Assessment
Authority, Haryana granted an Environment Clearance for the Project.
3. The appellant submitted an application to the Commissioner,
G Municipal Corporation, Gurgaon5, for approval of the Fire Fighting

1
“COPRA”
2
“NCDRC”
3
“Project”
4
“TCP Haryana”
5
H “CMC Gurgaon”
M/S IREO PRIVATE LIMITED v. ALOKE ANAND AND OTHERS 415
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Scheme for the Project on 16 January 2012. The CMC Gurgaon granted A
the approval on 25 September 20136.
4. On 26 August 2016, the Occupation Certificate was issued by
the Director General of TCP Haryana in respect of Tower D of the
Project. Further, on 14 September 2017, the Occupation Certificate was
issued in respect of Tower B of the Project. B
5. Other than these common facts in relation to the Project, the
appeals arise from separate complaints and have distinct facts. However,
they raise a common issue. Hence, we shall set out the facts of the lead
appeal (Civil Appeal No 180 of 2022) in detail.
6. In Civil Appeal No 180 of 2022, the first respondent filed a C
booking application for an apartment in the Project on 22 December
2010. An amount of Rs 15,00,000 was paid as booking amount by a
cheque dated 14 October 2010.
7. The appellant issued a letter offering allotment to the first
respondent on 14 January 2011, by which the appellant allotted an D
apartment having a tentative super area of 2809 sq ft, bearing No B3203,
Floor 31 in Tower B of the Project. The appellant and the first respondent
entered into an Apartment Buyers Agreement7 on 14 February 2012.
8. Due to the apartment not being handed over in time by the
appellant, the first respondent filed a consumer complaint8 before the E
NCDRC on 3 May 2017. The reliefs claimed in the complaint were as
follows:
“i. Direct the Opposite Parties to handover possession of Unit to
the Complainant, complete in all respects and in conformity with
the Allotment Letter and Apartment Buyers’ Agreement, with all F
additional facilities and as per quality standards promised and
execute all necessary and required documents in respect of the
said apartment in favour of the Complainant within 6 months of
this petition being filed before this Hon’ble Commission or as
directed by this Commission;
G
ii. Direct the Opposite Parties for an immediate 100% refund of
the total principal amount of Rs. 2,23,91,480/- (Rupees Two Crore
6
“Fire NOC”
7
“ABA”
8
Consumer Complaint No 1277 of 2017 H
416 SUPREME COURT REPORTS [2022] 2 S.C.R.

A Twenty Three Lakh Ninety One Thousand Four Hundred and
Eighty Only) paid by the Complainant, along with a penal interest
of 18% per annum from the date of the receipt of the payments
made to the Opposite Parties, in case the Opposite Parties cannot
deliver or fail to deliver the absolute, complete and final physical
possession of the flat within a period of 6 months of this petition
B
being filed before this Hon’ble Commission or as directed by this
Hon’ble Commission;
iii. Direct the Opposite Parties to pay a delayed possession
compensation equal to interest @ 18% per annum on the amount
deposited by the Complainant with the opposite Parties, with effect
C
from March 2015 i.e. date when possession was promised, till the
date of actual possession is handed over by the Opposite Parties
along with all necessary documents and common areas and facilities
as promised during the initial booking made by the Complainant;
[…]”
D
From the prayers, it is clear that the first respondent sought a
direction to the appellant 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. In relation to this prayer, the first respondent
also filed an interim application9 before the NCDRC seeking a direction
E to the appellant for the delivery of possession of the apartment. Along
with this, the first respondent sought compensation for delayed possession,
calculated at the rate of 18 per cent per annum on the amount deposited
with the appellant from the date on which actual possession was to be
delivered (March 2015). However, if the appellant failed to deliver the
F possession of the apartment within six months, the first respondent sought
the refund of the principal amount of Rs 2,23,91,480, with interest at 18
per cent per annum from the date the amount was paid by the first
respondent to the appellant.
9. The appellant issued a notice to claim possession to the first
G respondent on 25 September 2017. On 16 February 2018, the NCDRC
passed an interim order, inter alia, in relation to the interim application:
“Arguments on IA No. 17613 of 2017 filed by the complainant
heard. By this application, complainant is seeking direction to the

9
H IA No 17613 of 2017
M/S IREO PRIVATE LIMITED v. ALOKE ANAND AND OTHERS 417
[DR. DHANANJAYA Y CHANDRACHUD, J.]

opposite parties to deliver possession of the allotted apartment A
being unit no. SY-B-32-03. Learned counsel for the complainant
submits that he is ready and willing to take possession of the flat
if found in fit condition and he is also ready and willing to pay the
payment raised by the opposite party subject to the decision in
this complaint. Learned counsel for the opposite party has no
B
objection if interim order is passed as stated by learned counsel
for the complainant.
In view of the above, application is disposed of with the direction
that opposite parties shall deliver possession of the allotted
apartment to the complainant on payment of demanded dues by
C
the complainant within one month of the date of payment. It is
made clear that this order is subject to final outcome of the
complaint. Counsel for the opposite parties state that in view of
the interim order passed today on the application of complainant,
he does not press his IA No. 2661 and 2662 of 2018.”
10. On 17 May 2018, the first respondent filed another interim D
application bringing on record several photographs showing that the
apartment was not complete and was not in a habitable condition. In
response to an email from the first respondent, the appellant sent the
following email on 25 September 2018:
“We have noted the content if your email and wish to apprise you E
that due to limited workforce, the finishing work is slow at the
site. We expect the same to resume in full force in near future
and thereafter, we may look at completing the work at the earliest
for the handover.”
Thus, it is clear the apartment which had been offered for F
possession by the appellant was not complete in all respects nor was it in
a habitable condition.
11. By its judgment dated 1 November 2021, the NCDRC held
that the appellant did not contest that an amount of Rs 2,23,91,480 had
been paid by the first respondent. It then noted that the first respondent G
would be considered as a consumer within the meaning of Section
2(1)(d) of COPRA since the appellant had not brought on record
anything to prove that the first respondent was indulging in the business
of buying/selling apartments. On merits, the NCDRC relied on a
H
418 SUPREME COURT REPORTS [2022] 2 S.C.R.

A decision rendered by it on 6 December 2019 in relation to the appellant’s
Project (Siddharth Vasisht v. lREO Pvt. Ltd. and Ors10), which
was upheld by this Court on 11 December 202011. The NCDRC thus
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
B
Haryana in respect of cases where refund is made to flat buyers due
to the delay of the developer in handing over possession.
12. In Siddharth Vasisht (supra), relying on its previous decision
in Shamshul Hoda Khan v. IREO Victory Valley Pvt. Ltd. and Anr.12,
the NCDRC had rejected the appellant’s argument that the calculation
C
of the period for the delivery of possession of the apartment under Clause
13.3 of the ABA would only start from the date the Fire NOC was
granted. In Shamshul Hoda Khan (supra), the NCDRC had rejected
the developer’s submission by noting that the Haryana Fire Service Act
200913 did not prohibit the commencement of construction on a housing
D project after Building Approval was sanctioned and pending a Fire NOC
if the Building Approval did not contain such a condition and, in any
case, the appellant had commenced construction on the housing project
before it received the Fire NOC. Similarly, in Siddharth Vasisht (supra),
the NCDRC also noted that the appellant had commenced construction
E on the Project before it received the Fire NOC.
13. This Court rejected the appeal against the decision in Siddharth
Vasisht (supra) by relying on its earlier order dated 3 May 201914
rejecting the appeal against Shamshul Hoda Khan (supra). This Court
has thereafter rejected a review petition15 against its order rejecting the
F appeal against the decision in Shamshul Hoda Khan (supra) by an
order dated 15 October 2019, where it noted that the NCDRC had
correctly pointed out that since the appellant began construction before
the Fire NOC was granted, it could not argue that the period for delivery
of possession should start only from the date the Fire NOC was granted.
This Court held:
G
10
Consumer Case No 1062 of 2018
11
Civil Appeal (Diary) No 21634 of 2020
12
Consumer Case No 2110 of 2016, decided on 17 January 2019
13
“HFS Act”
14
Civil Appeal No 4801 of 2019
15
H Review Petition (Civil) No 2339 of 2019
M/S IREO PRIVATE LIMITED v. ALOKE ANAND AND OTHERS 419
[DR. DHANANJAYA Y CHANDRACHUD, J.]

“Delay in filing the review petition is condoned. A
The principal submission raised in the review petition is on the
basis of Section 15(1) of the Haryana Fire Service Act, 2009. It is
submitted that the construction of a building could only begin after
the Fire Scheme was approved by the concerned authority and as
the Fire Safety Scheme in the present case was approved on B
28.10.2013 the period ought to be reckoned from that date.
The submission was dealt with by the National Commission and
the relevant portion from para 10 was as under:
“It is an admitted position that the opposite party had been raising
demand based upon the stage of construction even prior to C
28.10.2013 when the first fire safety clearance came to be issued.
The payment plan agreed between the parties envisaged payment
of the 3rd instalment on commencement of excavation, 4th on
casting of basement roof slab and the 5th on casting of ground
floor roof slab. The 6th instalment was payable on casting of 3rd D
floor roof slab. It is an admitted position that even the 4th instalment
which was payable on casting of basement roof slab was
demanded on 5.2.2013. The 5th and 6th instalments were demanded
on 21.3.2013 and 18.9.2013 respectively. Admittedly, the fire safety
clearance had not been received by that time.”
E
In view of the circumstances on record this Court refused to
interfere and dismissed the civil appeal.
We have gone through the review petition and do not find any
substance in the submissions raised therein. This review petition
is, therefore, dismissed.” F
14. In the present appeal, Mr Ankur Saigal, learned Counsel
appearing on behalf of the appellant, has submitted that:
(i) Clause 13.3 of the ABA stipulates that possession would
be handed over within forty-two months after the pre-
conditions were fulfilled, and there was a grace period of G
180 days. It has been submitted that the Building Plan
sanctioned on 27 September 2011 contained a requirement
of a Fire NOC, and the Fire NOC was received only on 25
September 2013. Hence, the contractual date for handing
over possession, including the 180 days’ grace period, would
H
420 SUPREME COURT REPORTS [2022] 2 S.C.R.

A be 24 September 2017. In this context, reliance has been
placed on the communication of the appellant dated 25
September 2017 making an offer of possession;
(ii) In view of the judgment of this Court dated 11 January
2021 in IREO Grace Realtech Private Limited v. Abhishek
B Khanna and Others16, the period for delivery of possession
begins only from the date the Fire NOC is granted; and
(iii) A direction for refund together with interest was not
warranted because the relief sought in the consumer
complaint before the NCDRC was possession of the flat
C and the prayer for refund was set up in the alternate, in the
event that possession could not be offered. Since the
appellant offered possession within the contractual period,
there is no valid basis to order a refund.
15. Opposing these submissions, Ms Nina R Nariman, learned
D Counsel appearing on behalf of the first respondent, submitted that:
(i) The first respondent moved an interim application before
the NCDRC seeking a direction for the delivery of
possession. On 16 February 2018, the NCDRC disposed it
off with a direction to the appellant to deliver possession
E upon the payment of the outstanding dues, within a month
of the date of payment;
(ii) On 25 September 2018, nearly seven months after the
interim order of the NCDRC, the appellant addressed an
email, inter alia, stating that “…due to limited workforce,
F the finishing work is slow at the site”. The appellant’s
email stated that it expected “the same to resume in full
force in near future and thereafter…may look at
completing the work at the earliest for the handover”.
In view of the above email, the appellant was not in a
position to hand over possession even as on 25 September
G 2018; and
(iii) The construction of the Project started even before the
issuance of the Fire NOC, as is apparent from the fact that
letters of demand were addressed to the first respondent

16
H (2021) 3 SCC 241
M/S IREO PRIVATE LIMITED v. ALOKE ANAND AND OTHERS 421
[DR. DHANANJAYA Y CHANDRACHUD, J.]

commensurate with the casting of slabs on 18 February A
2013, 27 May 2013 and 3 December 2013. Hence, the plea
that the period for the delivery of possession of the apartment
commenced only from the date of the Fire NOC is not
tenable.
16. The primary relief which was sought by the appellant before B
the NCDRC was the handing over of possession of the flat allotted
under the ABA. The bona fides of the first respondent are apparent
from the fact that interim application was moved before the NCDRC
for handing over possession. In other words, consistent with the plea in
the complaint, the first respondent sought possession in the first instance.
An interim order was passed on 16 February 2018 directing the appellant C
to hand over possession.
17. The core submission of the appellant is that the date for handing
over possession would be 24 September 2017, having regard to the
provisions of Clause 13.3 of the ABA. Clause 13.3 provided as follows:
D
“13.3 Subject to Force Majeure, as defined herein and further
subject to the Allottee having complied with all its obligations under
the terms and conditions of this Agreement and not being in default
of any provision(s) of this Agreement including but not limited to
the timely payment of all dues and charges including the total Sale
Consideration, registration charges, stamp duty and other charges E
and also subject to the Allottee having complied with all formalities
or documentation as prescribed by the Company, the Company
proposes to hand over the possession of the said Apartment to the
Allottee within a period of 42 (forty two) months from the date of
approval of the Building Plans and/or fulfillment of the F
preconditions imposed thereunder (‘Commitment Period’). The
Allottee further agrees and understands that the Company shall
additionally be entitled to a period of 180 days (‘Grace Period’),
after the expiry of the said Commitment Period to allow for
unforeseen delays in obtaining the Occupation Certificate etc.,
from the DTCP under the Act, in respect of SKYON Project.” G
18. According to the appellant, in terms of the above clause, the
date by when the offer of possession could be made would be 24
September 2017. This submission runs contrary to the orders of this
Court dismissing the appeals against NCDRC’s decisions in Shamshul
Hoda Khan (supra) and Siddharth Vasisht (supra), both of which are H
422 SUPREME COURT REPORTS [2022] 2 S.C.R.

A of two-judge Benches. However, in support of this proposition, the
appellant has placed reliance on the decision of this Court in Abhishek
Khanna (supra), which is a decision by a three-judge Bench.
19. In Abhishek Khanna (supra), which was in relation to another
housing project of the appellant, one of the issues before this Court was:
B “22.1. (i) Determination of the date from which the 42 months
period for handing over possession is to be calculated under Clause
13.3, whether it would be from the date of issuance of the fire
NOC as contended by the developer; or, from the date of sanction
of the building plans, as contended by the apartment buyers.”
C After analysing the provisions of the HFS Act, Clause 13.3 of the
ABA (which contained the same condition as the ABA in this case, that
the period for delivery of possession would commence from the “date
of approval of the Building Plans and/or fulfillment of the
preconditions imposed thereunder”), and Clauses 3 and 17(iv) of the
D sanctioned Building Approval (which are identical to Clauses 317 and
17(v)18 of the sanctioned Building Approval in the present case), the
Court held that the period for delivery of possession would only commence
from the date the Fire NOC was granted. This Court held:

17
E “3. FIRE SAFETY:
[…]
On receipt of the above request the Commissioner, Municipal Corporation, Gurgaon
after satisfying himself that the entire fire protection measures proposed for the above
buildings are as per NBC and other Fire Safety Bye Laws, and would issue a NOC from
Fire safety and means of escape/access point of view. This clearance/NOC from Fire
Authority shall be submitted in this office along with a set of plans duly signed by the
F Commissioner, Municipal Corporation, Gurgaon within a period of 90 days from the
date of issuance of sanction of building plans. Further, it is also made clear that no
permission for occupancy of the building shall be issued by Commissioner, Municipal
Corporation, Gurgaon unless he is satisfied that adequate firefighting measures have
been installed by you and suitable external firefighting infrastructure has been created
at Gurgaon, by Municipal Corporation, Gurgaon. A clearance to this effect shall be
obtained from the Commissioner, Municipal Corporation, Gurgaon before grant of
G occupation certificate by the Director General.”
18
“17. GENERAL:-
[…]
(v) That the colonizer shall obtain the clearance/NOC as per the provisions of the
Notification No. S.O. 1533 (E) Dated 14.09.2006 issued by Ministry of Environment
and Forest, Government of India before starting the construction/execution of
H development works at site.”
M/S IREO PRIVATE LIMITED v. ALOKE ANAND AND OTHERS 423
[DR. DHANANJAYA Y CHANDRACHUD, J.]

“25.7. The environmental clearance granted by the Ministry of A
Environment & Forest Government of Haryana on 12-12-2013
required the developer to submit a copy of the fire safety plan
approved by the Fire Department, before commencing construction
of the project. General Condition (vi) under Part B of the
environmental clearance stipulated that the developer shall obtain
B
all other statutory clearances, including the approval from the Fire
Department, prior to construction of the project. Clause (vi)
provides that:
“(vi) All other statutory clearance such as the approvals for storage
of diesel from Chief Controller of Explosive, Fire Department,
Civil Aviation Department, Forest Conservation Act, 1980 and C
Wild Life (Protection) Act, 1972, Forest Act, 1927, PLPA 1900,
etc. shall be obtained as applicable by project proponents
from the respective authorities prior to construction of the
project.”
(emphasis supplied) D

25.8. We are of the view that it was a mandatory requirement
under the Haryana Fire Service Act, 2009 to obtain the fire NOC
before commencement of construction activity. This requirement
is stipulated in the sanctioned building plans, as also in the
environment clearance. E

25.9. The 42 months’ period in Clause 13.3 of the Agreement for
handing over possession of the apartments would be required to
be computed from the date on which fire NOC was issued, and
not from the date of the building plans being sanctioned.”
F
Based on this, the Court held19 that allottees who had been offered
possession and in respect of whose apartments the Occupation Certificate
had been issued, were bound to take possession (after having been paid
compensation for the delay in offering possession) and could not terminate
the ABA. However, it is important to note that the Court found that the
construction in respect of their apartments was complete. G
20. 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)

19
Paragraph 44 H
424 SUPREME COURT REPORTS [2022] 2 S.C.R.

A would end on 24 September 2017. The appellant issued a notice of
possession to the first respondent on 25 September 2017.
21. 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
B 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
C appropriate rate of interest cannot be faulted.
22. For the above reasons, we affirm the judgment of the NCDRC,
since the position in the present case is distinguishable from the facts
before this Court in Abhishek Khanna (supra).

D 23. In Civil Appeal No 268 of 2022, the first respondent was allotted
an apartment in Tower D of the Project. The ABA was signed on 6
September 2013. The appellant issued a notice of possession on 6
September 2016. The first respondent filed a consumer complaint20 before
the NCDRC on 14 February 2017 seeking a refund of the amount paid
with interest at 18 per cent per annum or the possession of the apartment,
E if the appellant was willing to complete the apartment in accordance
with the specifications in the ABA in a time bound manner and not charge
any further amount over and above the sale consideration. By its judgment
dated 22 November 2021, which takes note of the decision of this Court
in Abhishek Khanna (supra), the NCDRC directed the appellant to
F refund the principal amount to the first respondent with interest at the
rate of 10.25 per cent per annum.
24. We have heard Mr Ankur Saigal, learned Counsel for the
appellant and Mr. Vaibhav Gaggar, learned Counsel for the respondent.
25. The finding of fact which has been recorded by the NCDRC
G in its impugned judgment dated 22 November 2021 is that the amenities
which were promised by the appellant have not been provided in the
Project and the apartment. In the course of discussion, the NCDRC
has, in fact, tabulated the amenities which were to be but have not been

20
H Consumer Case No 417 of 2017
M/S IREO PRIVATE LIMITED v. ALOKE ANAND AND OTHERS 425
[DR. DHANANJAYA Y CHANDRACHUD, J.]

provided. In this view of the matter, the direction for the refund of the A
amount paid together with interest, cannot be faulted. The appellant 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.
26. The appeals are accordingly dismissed. B
27. Pending applications, if any, stand disposed of.

Devika Gujral Appeals dismissed.

C

D

E

F

G

H